- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Sentencing
- Date Filed: 09-14-2011
- Case #: 10-10177
- Judge(s)/Court Below: District Judge Mills for the Court; Circuit Judges W. Fletcher and Smith
- Full Text Opinion
In 2007, Tafoya-Montelongo was convicted in Utah state court of attempted sexual abuse of a child and unlawful sexual activity with a minor. He was subsequently deported. In 2009, he was charged with illegal re-entry, to which he plead guilty. Tafoya-Montelongo’s prior conviction of “attempted sexual abuse of a child was found to be a crime of violence in his final Presentence Report (PSR) which, pursuant to U.S.S.G. §2L1.2(b)(1)(A)(ii), he received a 16-level offense enhancement. The enhancement significantly increased Tafoya-Montelongo’s sentencing guideline range from the range stated in his first PSR. Tafoya-Montelongo filed an objection with the district court, arguing that he should be able to rely on the range provided in the initial PSR. The district court upheld the sentencing range and Tafoya-Montelongo appealed, contending that his prior conviction for attempted sexual abuse of a child was not a crime of violence, thereby making the16-level enhancement unwarranted. The Ninth Circuit reviewed the district court’s holding for plain error and found that under U.S.S.G. §2L1.2(b)(1)(A)(ii) attempted sexual abuse of a minor is a crime of violence. However, the Court also noted that in order for the federal government to use prior state convictions to enhance sentences, the state statute cannot be more expansive than the federal statute, otherwise it will not constitute a per se “crime of violence.” The Ninth Circuit reviewed Tafoya-Montelongo’s conduct which resulted in his conviction for attempted sexual abuse and ruled that it fell under the federal statute’s definition for the same offense and therefore the district court did not commit error by using the 16-level enhancement. AFFIRMED.