U.S. v. Reyes–alfonso, 10–2091.

• Decision Date: 27 July 2011
• Docket Number: No. 10–2091.,10–2091.
• Citation: 653 F.3d 1137
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Daniel REYES–ALFONSO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

653 F.3d 1137

UNITED STATES of America, Plaintiff–Appellee,

v.Daniel REYES–ALFONSO, Defendant–Appellant.

No. 10–2091.

United States Court of Appeals, Tenth Circuit.

July 27, 2011.

Andre C. Poissant, Assistant Federal Public Defender, Las Cruces, NM, for Defendant–Appellant Daniel Reyes–Alfonso.Terri J. Abernathy, Assistant United States Attorney, Las Cruces, NM (on the brief Kenneth J. Gonzales, United States Attorney, Michael Nammar, Assistant United States Attorney, Las Cruces, NM), for Plaintiff–Appellee United States of America.Before BRISCOE, Chief Judge, EBEL, and MURPHY, Circuit Judges.EBEL, Circuit Judge.

Defendant–Appellant Daniel Reyes–Alfonso pled guilty to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. Using the 2009 United States Sentencing Guidelines, the district court calculated an advisory guideline imprisonment range of forty-six to fifty-seven months. Then, the district court imposed a sentence at the bottom of that range: forty-six months' imprisonment. Reyes–Alfonso now appeals, arguing that his prior conviction in Colorado for Sexual Contact–No Consent is not a forcible sex offense, which triggers the sixteen-level crime of violence enhancement under U.S.S.G. § 2L1.2. Reyes–Alfonso also argues that the sentence imposed by the district court is both procedurally and substantively unreasonable. We conclude that Reyes–Alfonso's conviction for Sexual Contact–No Consent is a forcible sex offense under U.S.S.G. § 2L1.2. Further, we conclude that the district court did not abuse its discretion by imposing a sentence of forty-six months' imprisonment. Therefore, exercising jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

Defendant–Appellant Daniel Reyes–Alfonso was born in Las Avejas, Veracruz, Mexico in 1980. He resided in Aurora, Colorado beginning in 1987. In late 2008, he was arrested for having sexual intercourse with a fourteen-year-old girl. Reyes–Alfonso pled guilty in June of 2009 to one count of Sexual Contact–No Consent in violation of Colo.Rev.Stat. § 18–3–404(1)(a) (2009). The state court sentenced Reyes–Alfonso to nine months' imprisonment, and he was deported upon his release on September 23, 2009.

On September 28, 2009, only five days after being deported, Reyes–Alfonso illegally reentered the United States. U.S. Border Patrol agents arrested Reyes–Alfonso, among others, after stopping the vehicle in which he was traveling near Hachita, New Mexico. Reyes–Alfonso admitted to being a citizen of Mexico who was in the United States illegally.

Reyes–Alfonso pled guilty to an information charging him with reentering the United States after having been deported, in violation of 8 U.S.C. § 1326, without the benefit of a plea agreement. The Probation Office prepared a presentence report (PSR), which calculated an advisory guideline range of forty-six to fifty-seven months' imprisonment based on an offense level of twenty-one and a criminal history category of III.

The probation officer calculated the offense level in the PSR as follows: The base offense level was eight. See U.S.S.G. § 2L1.2(a) (2009). Then, the Probation Officer added a sixteen-level enhancement because Reyes–Alfonso had previously been deported after conviction of a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The conviction relied upon by the court was Reyes–Alfonso's previous Sexual Contact–No Consent conviction. See Colo.Rev.Stat. § 18–3–404(1). Finally, the Probation Officer applied a three-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. That resulted in a total offense level of twenty-one.

The Probation Officer determined that Reyes–Alfonso's criminal history category was III based on two countable prior convictions. The first countable conviction was for gambling with a minor, and the second was the conviction for Sexual Contact–No Consent described above. The Probation Officer added two criminal history points because Reyes–Alfonso committed the reentry offense within two years of his release from custody. See U.S.S.G. § 4A1.1(e). Consequently, Reyes–Alfonso had five criminal history points, which yielded a criminal history category of III. Reyes–Alfonso also had five other noncountable convictions, including possession of a financial transaction device, careless driving, driving without insurance, and driving without a seatbelt.

Reyes–Alfonso filed a sentencing memorandum below arguing that his Colorado conviction for sexual contact was not a crime of violence. He contended that this Court's decision in United States v. Romero–Hernandez, 505 F.3d 1082 (10th Cir.2007), which had held that a conviction under this precise Colorado statute for Sexual Contact–No Consent was a crime of violence under U.S.S.G. § 2L1.2, was no longer good law. Reyes–Alfonso also argued that his criminal history category overrepresented the seriousness of his criminal history and asked the district court for a downward variance or departure based on the 18 U.S.C. § 3553(a) factors. The Government maintained that the conviction under Colorado law for Sexual Contact–No Consent was a forcible sex offense according to Romero–Hernandez and that Reyes–Alfonso's criminal history correctly reflected his repeated disregard for the criminal justice system. Therefore, the Government concluded that neither a downward departure nor a variance was warranted and asked the district court to impose a sentence at the bottom of the advisory guideline range.

When Reyes–Alfonso appeared before the district court for sentencing, the court indicated that it had reviewed the sentencing memorandum and that, pursuant to Romero–Hernandez, the previous Colorado conviction for Sexual Contact–No Consent was a crime of violence, which triggered the sixteen-level enhancement. The court then heard argument from both parties concerning Reyes–Alfonso's request for a downward departure or variance. The court ruled as follows:

I think [the Government is] probably right, and that a sentence at the bottom of the guideline range of 46 months is the sentence that is sufficient but not greater than necessary to meet all of the requirements of Section 3553(a) of 18 United States Code.

I'm also to take into account 18 United States Code Section 3553(b). Even though the guidelines are no longer mandatory, the statute does require that I consider the sentencing guidelines, and in doing so, I think that the guideline range in this case is consistent with the principles of 3553(a). So I'll impose a sentence at the bottom of the guideline range.

(Aplt.App. vol. III, at 7.) The district court imposed a sentence of forty-six months' imprisonment.

II. DISCUSSION

A. Crime of Violence Enhancement

“Whether a prior offense is a ‘crime of violence’ under U.S.S.G. § 2L1.2(b) is a question of law that we ... review de novo.” United States v. Rivera–Oros, 590 F.3d 1123, 1125 (10th Cir.2009). “In interpreting a guideline, we look at the language in the guideline itself, as well as the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission.” United States v. Torres–Ruiz, 387 F.3d 1179, 1181 (10th Cir.2004) (internal quotation marks omitted).

The 2009 Sentencing Guidelines, under which the district court sentenced Reyes–Alfonso, impose a sixteen-level enhancement to the base offense level if an alien “was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2 define a “crime of violence” as the following:

[M]urder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (emphasis added). Therefore, a previous crime can be considered a crime of violence if it either fits one of the enumerated offenses listed or if it fits the generic definition (“any other offense under federal, statute, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another”). In this case, we must determine whether Reyes–Alfonso's previous conviction under Colo.Rev.Stat. § 18–3–404(1) for Sexual Contact–No Consent fits one of the enumerated offenses, more particularly whether it is a forcible sex offense.

“When a defendant contests whether a prior conviction is a crime of violence, the sentencing court is generally required to follow the ‘categorical approach’ as adopted in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” Romero–Hernandez, 505 F.3d at 1085. “The categorical approach requires the sentencing court to look only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Id. at 1085–86 (internal quotation marks omitted).

This Court has previously concluded that “the particular section of the Colorado statute at issue [Colo.Rev.Stat. § 18–3–404(1) ] prohibits conduct that is categorically a crime of violence under § 2L1.2.” Id. at 1086. As noted, both Reyes–Alfonso and the defendant in Romero–Hernandez were convicted under Colo.Rev.Stat. § 18–3–404(1), which provides the following:

Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if:

(a) The actor knows that the victim does not consent; or

(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or

(c) The victim is physically...