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.

Footnotes

*

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).