United States v. German Acosta-Salinas

584 F. App'x 490

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2014
• Docket: 13-10452
• Status: Unpublished

Opinion

MEMORANDUM **

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 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’ 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)(l)(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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.