United States v. Myles

129 F. App'x 364

Opinion

MEMORANDUM

Footnotes

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Kenneth Myles appeals the district court’s determination that his conviction for sexual penetration of a person under the age of eighteen in violation of California Penal Code section 289(h) constitutes a crime of violence and thus a Grade A violation of the terms of his supervised release. Applying plain error analysis, we affirm.

The minute order establishes that Myles’s victim was fourteen years old at the time of the offense. We may consider that information under the modified categorical approach because, as conceded by Appellant, this information was intended to be part of the judgment. See United States v. Sarbia, 367 F.3d 1079, 1083 (9th Cir.2004).

Because the record establishes that Myles’s victim was fourteen years old at the time of the offense, Myles’s conviction constitutes a crime of violence and a Grade A violation of the terms of his release. See United States v. Granbois 376 F.3d 993, 995 (9th Cir.2004) (concluding that a conviction for “sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years and is at least four years younger than the perpetrator” constitutes a crime of violence).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.