United States v. Perez-Perez, No. 12-4935

Decided: December 18, 2013

The Fourth Circuit held that Carlos Perez-Perez’s (“Perez-Perez”) prior conviction of indecent liberties with a minor, in violation of N.C. Gen. Stat. § 14-202.1, constituted a crime of violence, and warranted the the sixteen-level enhancement the district court imposed on him after he plead guilty to illegal reentry after deportation by an aggravated felon.

Perez-Perez, an illegal alien from Mexico, who was then twenty-four years old, had sex with a fifteen-year-old girl in 2001. He was charged with statutory rape in North Carolina, but pleaded guilty to taking indecent liberties with a minor and was subsequently deported. 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 reentering the United States yet again, Perez-Perez pleaded guilty in federal district court in North Carolina to illegal reentry after deportation by an aggravated felon. The district court concluded that Perez-Perez’s prior conviction for taking indecent liberties with a minor constituted a crime of violence and therefore applied the sixteen-level sentence enhancement, which raised Perez-Perez’s sentencing range from a range of one to seven months to a range of forty-six to fifty-seven months. Ultimately, Perez-Perez was sentenced to forty-six months.

On appeal, Perez-Perez contended that the district court erred in finding that his prior North Carolina conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor, and thus as a crime of violence within the meaning of the reentry Guideline. In affirming the district court, the Fourth Circuit again held, as in Diaz-Ibarra, that a perpetrator can engage in conduct that constitutes sexual abuse when he is “in the actual or constructive presence of the minor.” The court further held that Perez-Perez’s argument, that Vann militates in favor of concluding that taking an indecent liberty with a minor is not a “crime of violence,” ultimately fails because accepting it would require the court to set aside prior precedent in Diaz-Ibarra. Accordingly, the court reaffirmed that a conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor under Diaz-Ibarra and is therefore a crime of violence within the meaning of the reentry Guideline.

Full Opinion

-W. Ryan Nichols

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