United States v. Valenzuela-Valenzuela

77 F. App'x 404

Opinion

MEMORANDUM

*

Defendant David Valenzuela-Valenzuela was convicted and sentenced to 41 months in prison for illegally re-entering the United States without consent after a prior deportation, in violation of 8 U.S.C. § 1326. Valenzuela-Valenzuela appeals the district court’s denial of his motion to grant discovery on his claim of selective prosecution. The government cross-appeals the district court’s refusal to award Valenzuela-Valenzuela a 16-level sentencing enhancement on the ground that the crime of sexual abuse of a minor does not categorically qualify as a “crime of violence” under the sentencing guidelines. See U.S.S.G. § 2L1.2(b)(l)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm with respect to Valenzuela-Valenzuela’s appeal, and reverse and remand for resentencing on the government’s cross-appeal.¹

We reject Valenzuela-Valenzuela’s appeal of the denial of his selective prosecution motion because it is foreclosed by out-recent decision in United States v. Arenas-Ortiz, 339 F.3d 1066 (9th Cir.2003).

Similarly, our recent decision in United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug.2003), holding that sexual abuse of a minor qualifies categorically as a “crime of violence,” is determinative of the issue raised in the government’s cross-appeal. Therefore, the district court erred in refusing to award a 16-level sentencing enhancement, and we remand for resentencing.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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.

1 . We review for abuse of discretion the district court’s decision to deny discovery on a selective prosecution claim. See United States v. Candia-Veleta, 104 F.3d 243, 246 (9th Cir. 1996). We review de novo the district court’s interpretation of the sentencing guidelines. See United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000).