UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4928
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL ANGEL OLIVAS-ORELLANA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00405-JAB-1)
Submitted: December 16, 2011 Decided: January 5, 2012
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Angel Olivas-Orellana pled guilty to unlawful
reentry of a deported alien, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2006). The district court sentenced him to a term of
eighty-four months’ imprisonment. Olivas-Orellana appeals his
sentence, contending that the district court erred when it
applied the sixteen-level sentencing enhancement in U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2009), on the
ground that he had previously been deported after being
convicted of a crime of violence. We affirm.
The enhancement Olivas-Orellana challenges was based
on his prior convictions, pursuant to a guilty plea, of three
counts of indecent liberties with a child, in violation of N.C.
Gen. Stat. § 14-202.1. Olivas-Orellana contends these
convictions did not constitute crimes of violence. Whether a
prior conviction is a crime of violence is a legal issue that is
reviewed de novo. United States v. Diaz-Ibarra, 522 F.3d 343,
347 (4th Cir. 2008). Olivas-Orellana relies on our recent
decision in United States v. Vann, 660 F.3d 771 (4th Cir. 2011)
(en banc) (using modified categorical approach to determine that
defendant’s prior North Carolina convictions for indecent
liberties were not “violent felonies” under 18 U.S.C. § 924(e)
(2006)). However, this case is not helpful to him.
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Ollivas-Orellana’s reliance on Vann is misplaced
because Vann does not address the term “crime of violence” as it
is defined in USSG § 2L1.2. Rather, Vann held that the North
Carolina indecent liberties statute, viewed in light of Begay v.
United States, 553 U.S. 137 (2008), proscribes both violent and
non-violent felonies, as the term “violent felony” is defined in
18 U.S.C. § 924(e)(2)(B). Assuming, without deciding, that the
modified categorical approach was the correct one, Vann
ultimately determined that the Government had not produced
Shepard-approved documents to establish that the defendant’s
convictions for violating N.C. Gen. Stat. § 14-202.1(a)(2)
constituted “violent felonies” that would subject him to
enhanced sentencing as an armed career criminal under 18 U.S.C.
§ 924(e). Vann, 660 F.3d at 773-74. Thus, our decision in Vann
does not determine the outcome in this case.
Instead, we begin our analysis with USSG § 2L1.2,
Application Note 1(B)(iii) and the definition of “crime of
violence.” The definition encompasses a number of specific
offenses, including “sexual abuse of a minor.” We have held
that “sexual abuse of a minor” need not be a crime that requires
the use, or threatened use, of physical force against another,
but must be a crime that prohibits the “physical or nonphysical
misuse or maltreatment of a minor for a purpose associated with
sexual gratification.” Diaz-Ibarra, 522 F.3d at 350, 352
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(internal quotation marks omitted) (construing Georgia felony
attempted child molestation as a “crime of violence” under USSG
§ 2L1.2(b)(1)(A)(ii)).
To determine whether Olivas-Orellana’s indecent
liberties conviction was a crime of violence as defined in USSG
§ 2L1.2, we may apply the categorical approach set out in Taylor
v. United States, 495 U.S. 575 (1990), unless the statute
proscribes a number of offenses, not all of which qualify as
crimes of violence. The analysis involves deciding whether “the
conduct criminalized by the statute, including the most innocent
conduct, qualifies as a ‘crime of violence.’” Diaz-Ibarra, 522
F.3d at 348. To find otherwise, “there must be a realistic
possibility, not a theoretical possibility, that the state would
apply its statute to conduct that falls outside the definition
of crime of violence.” Id. (internal quotation marks and
citation omitted). With respect to N.C. Gen. Stat. § 14-202.1,
we conclude that there is no realistic probability that a
violation of the statute could occur without the “misuse or
maltreatment of a minor for a purpose associated with sexual
gratification.” Diaz-Ibarra, 522 F.3d at 352 (internal
quotation marks and citation omitted). Therefore, we apply the
categorical approach; using that approach, we conclude that a
violation of N.C. Gen. Stat. § 14-202.1 constitutes a crime of
violence for purposes of USSG § 2L1.2.
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We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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