U.S. v. Alas-Castro, ALAS-CASTR

• Decision Date: 06 July 1999
• Docket Number: No. 98-3621,ALSO,ALAS-CASTR,98-3621
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. ALLAN FRANCISCOKNOWN AS ALLAN FRANCISCO CASTRO, APPELLANT. NE Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 812

184 F.3d 812 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. ALLAN FRANCISCO ALAS-CASTRO, ALSO KNOWN AS ALLAN FRANCISCO CASTRO, APPELLANT.

No. 98-3621 NE

U.S. Court of Appeals, Eighth Circuit

Submitted: July 6, 1999

Filed: July 26, 1999

On Appeal from the United States District Court for the District of Nebraska.

David R. Stickman, Omaha, Nebraska, argued, for Appellant.

Daniel A. Morris, Assistant U.S. Attorney, Omaha, Nebraska, argued, for Appellee.

Before Wollman, Chief Judge, Richard S. Arnold and Beam, Circuit Judges.

Per Curiam.

Pursuant to a written plea agreement, Allan Francisco Alas-Castro pleaded guilty to entering the United States after deportation, without consent from the Attorney General, in violation of 8 U.S.C. § 1326(a), (b)(2). At sentencing, the District Court¹ concluded, over Alas-Castro's objection, that his prior Nebraska conviction for sexual assault of a child constituted an aggravated felony within the meaning of U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (1998), warranting a 16-level enhancement to Alas-Castro's base offense level. The District Court sentenced Alas-Castro to three years and ten months (46 months) of imprisonment and two years of supervised release. On appeal, Alas-Castro renews his argument that his prior conviction was not an aggravated felony. We affirm.

The Guidelines require a 16-level enhancement if an alien illegally reenters the United States after deportation following a conviction for an "aggravated felony." See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (1998). For the definition of aggravated felony, the Commission directs district courts to 8 U.S.C. § 1101(a)(43), see U.S. Sentencing Guidelines Manual § 2L1.2, comment. (n. 1) (1998); and section 1101(a)(43) defines aggravated felony in relevant part as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(F). Under 18 U.S.C. § 16, "crime of violence" is, in turn, defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Nebraska conviction at issue here -- sexual assault of a child -- is committed if a person "subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older." Neb. Rev. Stat. § 28-320.01(1) (1995). Sexual contact is defined, in part, as "the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts... for the purpose of sexual arousal or gratification of either party." Neb. Rev. Stat. § 28-318 (1995).

The District Court concluded that, based only on its elements, Alas-Castro's Nebraska offense constituted a crime of violence. We review this determination de novo, see United States v. Rodriguez, 979 F.2d 138, 140 (8th Cir. 1992), and we agree with the District Court that the offense qualifies as a crime of violence: it requires intentional physical contact between an adult 19 years of age or older and a child 14 years of age or younger, and this type of contact between parties of differing physical and emotional maturity carries "a substantial risk that physical force... may be used in the course of committing the offense." 18 U.S.C. § 16(b); see United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.) (per curiam) (" when analyzing the operative phrase'substantial risk, ' it is not necessary that '[the risk] must occur in every instance; rather a substantial risk requires...