Argued and Submitted, San Francisco California:
January 16, 2015.
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:13-cr-01220-RCC-BPV-1. Linda R. Reade, Chief District Judge, Presiding.
The panel affirmed a sentence for unauthorized reentry into the United States after deportation, in a case in which the district court assessed a 16-level enhancement based on its conclusion that the defendant was previously convicted of Criminal Sexual Contact under section 2C:14-3(b) of New Jersey's Criminal Justice Conduct Code, an offense the district court concluded was a " crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The panel held that the applicable definition of " conviction," for purposes of implementing the sentencing guidelines in the immigration context, is to be found in federal law, not state law; and that Chapter Four of the sentencing guidelines, and not the Immigration and Nationality Act, provides the proper definition of " conviction" for purposes of the enhancement.
The panel held that under Chapter Four's definitions, the defendant, who pled guilty to the New Jersey offense, was " convicted of an offense," which gave rise to a " prior sentence," which received at least one criminal history point. The panel held that because the New Jersey statute is divisible and includes alternatives that do not involve the absence of consent, the district court properly applied the modified-categorical approach to determine that the defendant was convicted of the statutory alternative involving lack of consent. The panel concluded that based on the defendant's admission in his plea colloquy before the New Jersey tribunal, the conduct for which he was convicted fit within the guideline definition of a forcible sex offense, and thus the definition of crime of violence.
Henry L. Jacobs (argued), Law Offices of Henry Jacobs, PLLC, Tucson, Arizona, for Defendant-Appellant.
Erica L. Seger (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, Robert L. Miskell, Chief, Appellate Division, Tucson, Arizona, for Plaintiff-Appellee.
Before: J. Clifford Wallace, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges.
Juan Alberto Mendez-Sosa appeals from the district court's sentence of thirty-seven months in prison. The court imposed this sentence after Mendez-Sosa pled guilty to violating 8 U.S.C. § 1326(a), which prohibits unauthorized reentry into the United States after deportation. In applying the federal sentencing guidelines, the district judge assessed a 16-level sentencing enhancement because she concluded that Mendez-Sosa was previously convicted of Criminal Sexual Contact under New Jersey law, an offense which the judge concluded was a " crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). On appeal, Mendez-Sosa argues the 16-level enhancement was improper for two reasons. First, he argues that he was never " convicted" of the prior offense as that term is defined by either ...