NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50447
Plaintiff - Appellee, D.C. No. 3:08-cr-03879-BEN-1
v.
MEMORANDUM*
RICARDO ALVAREZ-CORDOVA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted December 8, 2010
Pasadena, California
Before: PREGERSON, CLIFTON, and M. SMITH, Circuit Judges.
Ricardo Alvarez-Cordova appeals his forty-six-month sentence following his
conviction for illegal entry by a removed alien in violation of 8 U.S.C. § 1326.
Because the parties are familiar with the factual and procedural history of this case,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we do not recount additional facts except as necessary to explain the decision. We
affirm.
In United States v. Castro, we held that a conviction under California Penal
Code § 288(c)(1) does not categorically constitute “sexual abuse of a minor” under
either of two generic definitions. 607 F.3d 566, 570 (9th Cir. 2010). In
determining whether a statute of conviction constitutes “sexual abuse of a minor”
and is therefore a crime of violence under the Sentencing Guidelines or an
aggravated felony under 8 U.S.C. § 1101(a)(43), the analysis is the same. See
Valencia-Barragan, 608 F.3d at 1107 n.1. We previously concluded that §
288(c)(1) is categorically broader than the generic definition set out in Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), because a
“lewd or lascivious act” is broader than a “sexual act.” Castro, 607 F.3d at 570.
Thus, the only question before us is whether Alvarez-Cordova’s conviction
qualifies as “sexual abuse of a minor” using the modified categorical approach.
See Shepard v. United States, 544 U.S. 13, 20-21 (2005).
Under the generic definition set out in Estrada-Espinoza, and derived from
18 U.S.C. § 2243, “sexual abuse of a minor” contains four elements: “(1) a mens
rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12
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and 16; and (4) an age difference of at least four years between the defendant and
the minor.” 546 F.3d at 1152. Alvarez-Cordova’s plea agreement states, in part:
I willfully and unlawfully committed a lewd and lascivious act upon
the body of my neice [sic], Jane Doe, age 15 who was 10 years
younger than me and I did so with the intent of arousing [and]
gratifying the lust [and] sexual desires of myself. I also on [and]
between Jan 31, 2006 and July 31st, 2006 forcibly tried to [and] did in
fact touch the vagina of Jane Doe/age 15, with sexual intent [and] was
10 years older than Jane Doe.
ER 31. See Shepard, 544 U.S. at 26 (limiting a court’s examination of records for
purposes of the modified categorical approach to, among other items, “the terms of
a plea agreement”). These admissions satisfy the requirements of the generic
definition. A mens rea of “willfully” is sufficient “because, in this context, a
defendant cannot act “willfully” without also acting “knowingly.” Castro, 607
F.3d at 569. Alvarez-Cordova’s admission that he “did in fact touch the vagina of
Jane Doe” satisfies the “sexual act” requirement, that is, “at a minimum, an
intentional touching, not through the clothing, of a minor’s genitalia,” id. at 570,
under the plain meaning of his plea agreement. See United States v. Bolinger, 940
F.2d 478, 480 (9th Cir. 1991) (interpreting a plea agreement according to its plain
meaning). Alvarez-Cordova admitted that the minor was fifteen years old, within
the requisite age range. Finally, he admitted that he was ten years older than the
minor, satisfying the age difference requirement.
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Because Alvarez-Cordova was necessarily convicted of the elements of
“sexual abuse of a minor,” his conviction constitutes an aggravated felony for
purposes of 8 U.S.C. § 1101(a)(43) and a crime of violence for purposes of
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court therefore did not err in denying
the motion to dismiss the indictment or in imposing a sixteen-level enhancement
for a crime of violence.
AFFIRMED.
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