UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4770
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO RADILLA-AGUILAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (4:10-cr-00104-FL-1)
Argued: September 20, 2012 Decided: December 7, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Kristine L. Fritz, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Roberto Radilla-Aguilar pled guilty to unlawful
reentry of a deported alien, in violation of 8 U.S.C. § 1326(a)
and (b)(2), and was sentenced to forty-seven months’
imprisonment. Radilla-Aguilar appeals his sentence, contending
that the district court erred when it added a sixteen-level
increase in his offense level under the U.S. Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2010), on the ground
that he had previously been convicted of a crime of violence.
For the reasons that follow, we affirm.
I.
Roberto Radilla-Aguilar is a native and citizen of Mexico
and an illegal alien in the United States. In January 2009,
Radilla-Aguilar pled guilty to two counts of indecent liberties
with a child, in violation of section 14-202.1 of the General
Statutes of North Carolina. The United States then deported
Radilla-Aguilar.
Soon after his deportation in 2009, Radilla-Aguilar
returned to the United States. In December 2010, a federal
grand jury in the Eastern District of North Carolina indicted
Radilla-Aguilar, charging him with illegally returning to the
United States after having been deported subsequent to a
conviction for an aggravated felony, in violation of 8 U.S.C.
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§ 1326(a) and (b)(2). Radilla-Aguilar pled guilty to the
indictment.
Thereafter, a probation officer prepared a presentence
report (PSR) for Radilla-Aguilar. The PSR recommended an
advisory Guidelines range of forty-six to fifty-seven months’
imprisonment. As part of the Guidelines range calculation, the
probation officer applied a sixteen-level enhancement to
Radilla-Aguilar’s base offense level based on his conclusion
that Radilla-Aguilar’s North Carolina conviction for indecent
liberties constituted a “crime of violence” under Guidelines
section 2L1.2(b)(1)(A)(ii).
Radilla-Aguilar objected before and at his sentencing
hearing to the PSR’s characterization of his indecent liberties
conviction as a “crime of violence.” The district court
overruled Radilla-Aguilar’s objection, concluding that
application of the enhancement was warranted because Radilla-
Aguilar’s previous conviction for indecent liberties qualified
as a “crime of violence.” Accordingly, the district court
sentenced Radilla-Aguilar to forty-seven months’ imprisonment,
which falls within the recommended advisory Guidelines range.
Radilla-Aguilar timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
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II.
A.
Radilla-Aguilar asserts that his prior conviction of
indecent liberties with a child did not constitute a crime of
violence. Whether a prior conviction is a crime of violence is
a legal issue that we review de novo. United States v. Diaz-
Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).
Radilla-Aguilar 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)). Vann, 660 F.3d at
772-75. However, this case is unhelpful to him.
Radilla-Aguilar’s reliance on Vann is misplaced because
Vann does not address the term “crime of violence” as it is
defined in Guidelines section 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 failed
to produce enough Shepard-approved documents, Shepard v. United
States, 544 U.S. 13 (2005), to establish that the defendant’s
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convictions for violating section 14-202.1(a)(2) of the General
Statutes of North Carolina constituted “violent felonies”
subjecting him to enhanced sentencing as an armed career
criminal under 18 U.S.C. § 924(e). Vann, 660 F.3d at 773-76.
Because our decision in Vann addressed a different enhancement
provision than the one at issue in this case, our decision in
Vann does not control the outcome in this case.
B.
Instead, our analysis begins with Guidelines section 2L1.2,
Application Note 1(B)(iii) and the definition of “crime of
violence.” For defendants like Radilla-Aguilar who are
convicted of unlawfully entering or remaining in the United
States, the Guidelines mandate a sixteen-level offense level
enhancement if the defendant previously was deported—or
unlawfully remained in the United States—after a conviction for
a felony that is a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). 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 it 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
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350, 352 (quoting United States v. Padilla-Reyes, 247 F.3d 1158,
1163 (11th Cir. 2001)) (internal quotation marks
omitted)(construing Georgia felony attempted child molestation
as a “crime of violence” under Guidelines section
2L1.2(b)(1)(A)(ii)).
To determine whether Radilla-Aguilar’s indecent liberties
conviction is a crime of violence, as defined by Guidelines
section 2L1.2, we may apply the categorical approach set out by
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. In applying the categorical approach, we
look at only the “essential elements of the offense and the fact
of conviction.” United States v. Baxter, 642 F.3d 475, 476 (4th
Cir. 2011). This 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
probability, not a theoretical possibility,’ that the state
would apply its statute to conduct that falls outside the
definition of ‘crime of violence.’” Id. (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
The specific inquiry here is whether a violation of section
14-202.1 of the General Statutes of North Carolina can occur
without the “misuse or maltreatment of a minor for a purpose
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associated with sexual gratification.” Diaz-Ibarra, 522 F.3d at
352 (quoting Padilla-Reyes, 247 F.3d at 1163) (internal
quotation marks omitted). With respect to section 14-202.1,
there is no realistic probability that a violation of the
statute can occur without “misuse or maltreatment of a minor for
a purpose associated with sexual gratification.” Id. (quoting
Padilla-Reyes, 247 F.3d at 1163) (internal quotation marks
omitted). Therefore, we apply the categorical approach. Using
that approach, we conclude that a violation of section 14-202.1
constitutes a crime of violence for purposes of Guidelines
section 2L1.2. Hence, the district court committed no error
when it applied the sixteen-level increase in offense level.
III.
We therefore affirm the sentence imposed by the district
court.
AFFIRMED
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