FILED
NOT FOR PUBLICATION
AUGUST 25 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10452
Plaintiff - Appellee, D.C. No. CR 12-1495-TUC-CKJ
v.
MEMORANDUM*
GERMAN ACOSTA-SALINAS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted August 11, 2014
San Francisco, California
Before: SILVERMAN and CLIFTON, Circuit Judges, and WATSON, District
Judge.**
German Acosta-Salinas appeals his conviction by conditional guilty plea and
sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Derrick Kahala Watson, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
challenges both the district court’s (1) denial of his 8 U.S.C. § 1326(d) motion
collaterally attacking his prior deportation, and (2) 16-level sentencing
enhancement based on a prior conviction for a “crime of violence.”
The denial of a motion to dismiss an indictment under 8 U.S.C. § 1326(d)
involves mixed questions of law and fact; we review the legal claims de novo and
the district court’s findings of fact for clear error. United States v. Ramos, 623 F.3d
672, 679-80 (9th Cir. 2010). We review de novo the district court’s determination
that a prior conviction constitutes a “crime of violence” under the United States
Sentencing Guidelines (“U.S.S.G.”). United States v. Gonzalez-Monterroso, 745
F.3d 1237, 1243 (9th Cir. 2014). We affirm.
Acosta-Salinas moved to dismiss the indictment pursuant to 8 U.S.C.
§ 1326(d), arguing that his prior conviction for sexual abuse under Arizona Revised
Statutes (“A.R.S.”) § 13-1404 was not a crime involving moral turpitude and that
the immigration judge therefore incorrectly advised him that he was ineligible for
relief. We apply the modified categorical approach. See United States v.
Quintero-Junco, 754 F.3d 746, 751-52 (9th Cir. 2014). Pursuant to that approach,
and upon consideration of Acosta-Salinas’ record of conviction, we conclude that
both the immigration judge and district court correctly determined Acosta-Salinas’
sexual abuse conviction to be a crime of moral turpitude because Acosta-Salinas’
2
intended sexual contact with the adult victim was without her consent and actually
harmed her. See Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir.
2013). The district court properly denied Acosta-Salinas’ Motion Challenging Prior
Deportation.
Acosta-Salinas also argues that his conviction for sexual abuse is not a
“forcible sex offense” and that the district court erred in applying a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for a “crime of violence.” A
conviction under A.R.S. § 13-1404 for non-consensual sexual contact with a person
over fifteen years of age is a “forcible sex offense,” such that it constitutes a “crime
of violence” for purposes of the enhancement. See Quintero-Junco, 754 F.3d at
753-54. The sentence imposed by the district judge was not in error.
AFFIRMED.
3