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United States v. Perez-Perez

United States Court of Appeals, Fourth Circuit

December 18, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos PEREZ-PEREZ, Defendant-Appellant.

Argued: Oct. 30, 2013.

Page 951

ARGUED:

Bettina Kay Roberts, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Joshua L. Rogers, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant.

Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed bye published opinion. Judge DAVIS wrote the opinion, in which Judge MOTZ and Judge GREGORY joined. Judge DAVIS also wrote a separate concurring opinion.

DAVIS, Circuit Judge:

The U.S. Sentencing Guidelines advise district courts to increase by twelve or sixteen the offense level for a defendant convicted of unlawfully entering or remaining in the United States if the defendant has a prior felony conviction for " a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A). " Sexual abuse of a minor" is listed as a qualifying crime of violence. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The issue in this case is whether Carlos Perez-Perez's prior North Carolina conviction for taking indecent liberties with a minor, N.C. Gen.Stat. § 14-202.1(a),[1] constitutes sexual abuse of a minor, and therefore a crime of violence within the meaning of the reentry Guideline. We are constrained by our precedent, United States v. Diaz-Ibarra, 522 F.3d 343 (4th Cir.2008), to hold that it does.

Having previously entered this country unlawfully, Perez-Perez, a Mexican citizen, who was then 24 years old, had sex with a 15-year old girl in 2001. [2] He was charged in North Carolina with statutory rape, N.C. Gen.Stat. § 14-27.7A(a), but he pled

Page 952

guilty to taking indecent liberties with a minor. Id. § 14-202.1. He was soon after deported to Mexico. Perez-Perez unlawfully reentered the United States and was convicted in federal district court in Texas of reentry by an alien after deportation following an aggravated felony conviction. He was again deported to Mexico in 2004.

After unlawfully entering the United States yet again, Perez-Perez pled guilty in federal district court in North Carolina to illegal reentry after deportation by an aggravated felon. 8 U.S.C. §§ 1326(a) and (b)(2). Over his objection, the district court concluded that Perez-Perez's prior North Carolina conviction for taking indecent liberties with a minor constituted a crime of violence, and the court applied the concomitant sixteen-level enhancement, U.S.S.G. § 2L1.2(b)(1)(A), raising Perez-Perez's sentencing range to forty-six to fifty-seven months from a range of one to seven months. The district court sentenced Perez-Perez to an imprisonment term of forty-six months. He filed a timely notice of appeal.

Perez-Perez raises a single challenge on appeal: He argues that the district court erred in finding that his prior North Carolina conviction for taking indecent liberties with a minor, N.C. Gen.Stat. § 14-202.1(a), qualifies categorically as sexual abuse of a minor, and thus as a crime of violence within the meaning of the reentry Guideline.[3]U.S.S.G. § 2L1.2(b)(1)(A). Because his contention ...


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