Opinion
No. 13-10015 D.C. No. 4:12-cr-00848-RCC-BGM-1
01-29-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL ANDRES MENDEZ, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Submitted January 14, 2014
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District Judge.
The Honorable Raymond J. Dearie, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation.
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Miguel Andres Mendez appeals his sentence following a plea of guilty to a violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
The district court did not plainly err in imposing a sixteen-level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2. See United States v. Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013) (stating that the court reviews for plain error when a defendant fails to raise an issue before the district court). Mendez was convicted of violating Wisconsin Statute § 940.225(3), which prohibits either sexual intercourse without consent or sexual contact without consent. Applying the modified categorical approach, Mendez's conviction qualifies as a "crime of violence" because it constitutes a "forcible sex offense" under U.S.S.G. § 2L1.2. See Descamps v. United States, — U.S. —, 133 S. Ct. 2276, 2281-82 (2013) (permitting application of the modified categorical approach only if a defendant was convicted of violating a divisible statute); Suazo Perez v. Mukasey, 512 F.3d 1222, 1227 n.4 (9th Cir. 2008) (explaining that the defendant's entry of an Alford plea does not preclude the application of the modified categorical approach). The judicially noticeable documents that the government submitted to the district court demonstrate that Mendez was convicted of third-degree sexual assault for having sexual intercourse with the victim without the victim's consent. See Gallegos-Galindo, 704 F.3d at 1274-75 (holding that sexual intercourse without the victim's consent constitutes a "forcible sex offense").
AFFIRMED.