2nd Cir Appeal Usc 1326 Sentence

No. 10–2091. - UNITED STATES v. REYES ALFONSO - US 10th Circuit

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.

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 Avej as, 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.

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