United States v. Wences-Alcaide

MEMORANDUM ** Gerardo Wences-Alcaide appeals the district court’s imposition of a sixteen-level sentencing enhancement based on its determination that his prior felony conviction constituted a “crime of violence.” We affirm. Wenees-Alcaide’s prior conviction was for Criminal Sexual Conduct in the Second Degree, in violation of section 609.343(l)(a) and (2) of the Minnesota Statutes. The relevant statutory provision criminalizes “sexual contact” with a person “under 13 years of age” where “the actor is more than 36 months older than the complainant.” Minn.Stat. § 609.343(l)(a). It provides that “consent to the act by the complainant” is not a defense, and that “the state is not required to prove that the sexual contact was coerced.” Id. Wences-Alcaide contends that the statute reaches conduct that does not qualify as “sexual abuse of a minor,” a “crime of violence” under the United States Sentencing Guidelines, because it does not require any proof that the “sexual contact” was harmful or injurious. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). He argues that the statute encompasses even consensual relations, which he maintains do not constitute maltreatment under our decision in United States v. Bazar-Martinez, 464 F.3d 1010 (9th Cir.2006). In Baza-Martinez, we considered a statute that North Carolina courts had interpreted to punish “mere words.” Id. at 1016 . We held that a conviction for violating the statute was not categorically “abuse of a minor” because the courts had applied it to convict individuals for conduct, such as covertly filming a minor undressing, that the victim was not aware of and that therefore did not necessarily involve the infliction of either physical or psychological harm. Id. at 1017 . In contrast, the Minnesota statute punishes, only “sexual contact” with a child under the age of 13 if the perpetrator is at least 3 years older than the victim. Minn. Stat. § 609.343 (l)(a) (emphasis added). In United States v. Sinerius, 504 F.3d 737, 741 (9th Cir.2007), we held that even “consensual sexual contact by a 16-year-old on a 13-year-old victim[] categorically quali *582 fies as ‘sexual abuse.’ ” See also United States v. Baron-Medina, 187 F.8d 1144, 1147 (9th Cir.1999) (minor’s consent to sexual contact irrelevant because Congress did not intend the law “to excuse an individual who preys upon a child too young to understand the nature of his advances”). Accordingly, a conviction for violating section 609.343(l)(a) of the Minnesota Statutes categorically qualifies as “sexual abuse of a minor.” Wences-Alcaide’s conviction therefore constituted a “crime of violence,” justifying the imposition of a sixteen-level sentencing enhancement under the United States Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.