                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4578


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS ALFREDO VASQUEZ-MELENDEZ, a/k/a Oscar Diaz-Mendoza,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:08-cr-00116-FDW-1)


Submitted:   April 1, 2010                    Decided:   July 8, 2010


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina; Steven Slawinski, Charlotte, North Carolina, for
Appellant. Edward R. Ryan, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Luis Alfredo Vasquez-Melendez appeals his forty-eight

month sentence imposed after his guilty plea to unlawful reentry

of a deported alien, in violation of 8 U.S.C. § 1326 (2006).

Vasquez-Melendez’s sole argument on appeal is that the district

court erred in calculating his guideline sentencing range when

it increased his offense level by sixteen levels pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)

(2008).     Finding no error, we affirm.

            This     court     reviews   a   sentence    for    reasonableness,

using an abuse of discretion standard of review.                 Gall v. United

States, 552 U.S. 38, 51 (2007).              The first step in this review

requires the court to ensure that the district court committed

no significant procedural error.              United States v. Evans, 526

F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008).

Procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range” or “failing to consider the

§ 3553(a) factors.”          Gall, 552 U.S. at 51.        The district court

must   make    an    individualized      assessment     based    on   the    facts

presented     by    applying    the   relevant   §   3553(a)    factors     to   the

circumstances of the case.             Id.   The court then considers the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.            Id.



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              The       contested       sixteen-level              increase      was     based      on

Vasquez-Melendez’s              prior      conviction          under          N.C.     Gen.    Stat.

§ 14-202.1         (2009).            In        assessing          a     sentencing           court’s

application        of    the    guidelines,           this    court          reviews    its    legal

conclusions de novo and its factual findings for clear error.

United    States        v.   Mehta,     594      F.3d      277,        281    (4th   Cir.     2010).

Section       2L1.2(b)(1)(A)(ii)                of      the        Guidelines          directs       a

sixteen-level           enhancement        to    the       base     offense      level        if   the

defendant       was      previously         deported          from       the     United       States

following “a conviction for a felony that is . . . a crime of

violence.”         A “crime of violence” is defined to include “sexual

abuse of a minor.”                USSG § 2L1.2 cmt. n.1(B)(iii).                              “Sexual

abuse of a minor” need not be a crime that requires the use, or

threatened use, of physical force against another, but must be a

crime    that      prohibits      the      “physical          or    nonphysical         misuse      or

maltreatment of a minor for a purpose associated with sexual

gratification.”              United States v. Diaz-Ibarra, 522 F.3d 343,

350,    352   (4th       Cir.    2008)      (internal         quotation         marks     omitted)

(holding that a prior Georgia conviction for felony attempted

child    molestation           qualified        as     a   “crime        of    violence”       under

§ 2L1.2(b)(1)(A)(ii)).

              To    determine       whether           Vasquez-Melendez’s             prior     crime

constituted        “sexual      abuse      of    a    minor,”          this    court    applies      a

categorical approach, looking only to the statutory definition

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of   the   state    crime   and    the   fact   of   conviction   to   determine

whether the conduct criminalized by the statute, including the

most innocent conduct, qualifies as a “crime of violence.”                     See

Taylor v. United States, 495 U.S. 575, 600-02 (1990).                        Having

done so, we conclude that Vasquez-Melendez’s prior offense was

properly considered to be sexual abuse of a minor, and therefore

a violent crime that subjected him to an enhanced offense level.

            Accordingly, we affirm the district court’s judgment.

We   dispense      with   oral    argument   because    the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                                        AFFIRMED




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