FILED
NOT FOR PUBLICATION APR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10070
Plaintiff - Appellee, D.C. No. 4:10-cr-00921-DCB-
JCG-1
v.
JOSE MAGANA, AKA Jose A. Magana, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted February 16, 2012
San Francisco, California
Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.
Jose Magana appeals his 46-month sentence, imposed after Magana pled
guilty, without an agreement, to illegal reentry in violation of 8 U.S.C. § 1326. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
First, Magana contends that the district court erred when it calculated the
applicable Sentencing Guidelines range. In particular, he argues that the district
court incorrectly determined that his prior conviction for attempted sexual abuse in
the first degree, in violation of New York Penal Law § 130.65 (2008),1 was a
forcible sex offense and therefore was a crime of violence subject to a sixteen-level
increase. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
We review the district court’s interpretation of the Guidelines de novo, its
factual determinations for clear error, and its application of the Guidelines for
abuse of discretion. United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.
2008). “The Guidelines, including enhancements, are ordinarily applied in light of
available commentary, including application notes.” United States v. Staten, 466
1
At the time of Magana’s offense, New York defined sexual abuse in the
first degree as follows:
A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of
being physically helpless; or
3. When the other person is less than eleven years old.
N.Y. Penal Law § 130.65 (2008). Effective November 1, 2011, New York
amended § 130.65 to add a fourth means of committing sexual abuse in the first
degree: “When the other person is less than thirteen years old and the actor is
twenty-one years old or older.” 2011 N.Y. Sess. Laws ch. 26 § 1 (McKinney).
2
F.3d 708, 715 (9th Cir. 2006) (citing Stinson v. United States, 508 U.S. 36, 38
(1993)).
The district court granted the Government’s motion to take judicial notice of
Magana’s prior conviction for attempted sexual abuse in the first degree.
According to the felony complaint and the information from which Magana pled
guilty, Magana helped move and undress an unconscious eighteen-year-old female
acquaintance, and then a co-defendant committed sexual assault by engaging in
mouth-to-breast contact on the unconscious woman. Magana was eighteen years
old at the time of the offense and also inebriated. He was sentenced to a year in
prison, and later deported.
The Guidelines define a crime of violence to include “forcible sex offenses
(including where consent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or coerced).” § 2L1.2
cmt. n.1(B)(iii). Magana claims that this definition does not apply to a sex offense,
like his, where the victim is unconscious. But an unconscious victim of sexual
abuse cannot give consent to sexual contact. Applying the modified categorical
approach, we agree with the district court that Magana’s prior conviction
constitutes a crime of violence under U.S.S.G. § 2L1.2. See United States v.
Espinoza-Morales, 621 F.3d 1141, 1148–49 (9th Cir. 2010).
3
Second, Magana claims that the district court erred by refusing to order the
government to move for a one-level reduction for his early acceptance of
responsibility by entering a pre-trial guilty plea. Under U.S.S.G. § 3E1.1(b), the
government may move for a one-point reduction in the offense level if the
defendant timely notifies the authorities of his intention to plead, “thereby
permitting the government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently.” See United States
v. Espinoza-Cano, 456 F.3d 1126, 1137 (9th Cir. 2006). We review de novo
“whether the district court misapprehended the law with respect to the acceptance
of responsibility reduction.” United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.
2002).
At sentencing, the assistant United States attorney informed Magana and the
district court that the Government would not move for a one-level reduction
because Magana had not waived his right to appeal when he pled guilty. Magana,
citing cases from the Second and Fourth Circuits, argues that the Government’s
motive for withholding the motion was arbitrary and unrelated to the objective in
the Guidelines to conserve trial resources. But the Government’s refusal to move
for the one-level reduction is permitted under our case law. See United States v.
Page 4 of 5
Johnson, 581 F.3d 994, 1002–03 (9th Cir. 2009); United States v. Medina-Beltran,
542 F.3d 729, 731 (9th Cir. 2008) (per curiam).
Third, Magana argues that the enhancement provision of § 2L1.2 is not
empirically supported and impermissibly double-counts a prior conviction. But
under Kimbrough v. United States, 552 U.S. 85, 108 (2007), the district court is not
required to reject non-empirically-grounded Guidelines. Further, § 2L1.2 does not
impermissibly double-count a prior conviction. See United States v. Garcia-
Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam).
Fourth, Magana argues that the district court erred by relying on his prior
conviction to reject a departure or downward variance based on cultural
assimilation. See § 2L1.2 cmt. n.8. Although most of the Guidelines factors favor
Magana, the district court did not abuse its discretion by relying on the seriousness
of Magana’s prior conviction and his familial ties outside the United States to
reject a downward departure or variance.
Fifith, Magana contends that the sentence imposed by the district court is
substantively unreasonable. We disagree. Although a shorter sentence would have
been reasonable, the district court did not abuse its discretion when sentencing
Magana at the bottom of the correctly-calculated Guidelines range.
AFFIRMED.
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