                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 3, 2009
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                       No. 08-2046
                                                   (District of New Mexico)
 JOSE LUIS CHACON-RASCON,                        (D.C. No. 2:07-cr-00795-LH)

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



      On December 9, 2005, Jose Chacon-Rascon, the defendant, was convicted in

Curry County, New Mexico on his plea of guilty to a state charge of Criminal

Sexual Penetration in the Fourth Degree (a felony), and he was ultimately given a

deferred sentence. Shortly thereafter, on January 10, 2006, he was deported to

Mexico. On April 24, 2007, defendant was charged in a one-count indictment

filed in the United States District Court for the District of New Mexico with



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
reentry into the United States, after having been deported from the United States,

in violation of 8 U.S.C. §§ 1326(a) and (b). On June 6, 2007, the defendant pled

guilty to the indictment.

      The presentence report set defendant’s base offense level at 8, pursuant to

U.S.S.G. § 2L1.2(a) and then increased his base offense level by 16 levels,

pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because he previously had been convicted

of a crime of violence resulting in his deportation. He then received a three-level

reduction in his offense level for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1, resulting in a total offense level of 21.

      In connection with his criminal history category, defendant received one

point for his conviction of criminal sexual penetration of a child, which resulted in

his deportation, and received two additional criminal history points, pursuant to

U.S.S.G. § 4A1.1(d), because he had reentered the United States while under a

criminal justice sentence. With a criminal history category of II and an offense

level of 21, his guideline range was imprisonment for 41 to 51 months. The

defendant asked for a downward variance, which the district court granted when it

sentenced defendant to imprisonment for 33 months. The defendant appeals the

sentence thus imposed.

      On appeal, the defendant raised three issues:

             (1) the district court erred in calculating defendant’s criminal history

             category;

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             (2) the district court erred in calculating defendant’s offense

             level, and

             (3) the district court’s sentence of 33 months imprisonment was

             “unreasonable” under United States v. Booker, 543 U.S. 220 (2005).

                                            I.

      The defendant first argues that the district court committed “plain error” in

calculating defendant’s criminal history category by adding two points under

U.S.S.G. § 4 A1.1(d) for committing the instant offense (re-entry) “while under a

criminal justice sentence.” In this Court, the defendant argues that a “deferred

sentence” is not a “criminal justice sentence.” Counsel in his reply brief concedes

that this particular issue was not raised in the district court, and that therefore the

issue cannot be raised on appeal unless it is an error that was “plain,” meaning

clear or obvious and affecting substantial rights. If these requirements are met,

we, in our discretion, may correct the error “if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. A.B., 529

F.3d 1275, 1280 (10 th Cir. 2008). This Court has held that deferred sentences

under Oklahoma, Colorado and Utah State law constitute criminal justice

sentences under U.S.S.G. § 4 A1.1(d). See United States v. Vela, 992 F.2d 1116

(10 th Cir. 1993); United States v. Norman, 129 F.3d 1393, 1401 (10 th Cir. 1997);

United States v. Gorman, 312 F.3d 1159, 1164 (10 th Cir. 2002).        In sum, our

study of the present record leads us to conclude that the defendant has failed to

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show the district court committed “plain error.”

                                          II.

      As stated, the district court followed the recommendation of the presentence

report that defendant’s base offense level of 8 be raised by 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(ii). In the district court, and in this Court, counsel

argues that defendant’s conviction in the New Mexico state court for criminal

sexual penetration of a child did not constitute a “crime of violence,” and that, in

fact, the sexual penetration was consensual and not forcible.

      U.S.S.G. § 2L1.2(b)(1)(A)(ii) states that statutory rape is a crime of

violence. Counsel concedes that the guideline so reads, but argues that such is

inconsistent with 18 U.S.C. § 16 which reads as follows:

      § 16. Crime of violence defined

      The term “crime of violence” means–

             (a) an offense that has as an element the use, attempted use,
      or threatened use of physical force against the person or property of another,
      or
             (b) any other offense that is a felony and that, by its nature, involves a
      substantial risk that physical force against the person or property of another
      may be used in the course of committing the offense.

      On appeal, counsel agree that U.S.S.G. § 2L1.2 (b)(1)(A) is “broader” than

18 U.S.C. § 16. In that connection, the United States on appeal cites, inter alia,

United States v. Hernandez-Castillo, 449 F.3d 1127 (10 th Cir. 2006), where we

held that the defendant’s prior California conviction for unlawful sexual


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intercourse with a minor constituted a “crime of violence” for purposes of the

Sentencing Guideline applicable to sentencing for illegal re-entry. Counsel also

cites United States v. Parson, 955 F.2d 858, 867 (3 rd Cir. 1992) where that Circuit

spoke as follows: “We therefore hold that even if the definition of ‘crime of

violence’ in U.S.S.G. § 4B1.2 is broader than that in 18 U.S.C. § 16, the

Commission’s definition is permissible under the authorizing statute.” In short,

the district court did not err in adding 16 levels to defendant’s base offense level

pursuant to U.S.S.G. § 2L1.2 (b)(1)(A).

                                          III.

      Counsel also asserts on appeal that defendant’s sentence of imprisonment

for 33 months, which was below the guideline range of imprisonment of 41 to 51

months, was “unreasonable.” We disagree. The sentence imposed was in our view

most reasonable. See Rita v. United States, 551 U.S. 338 (2007); United States v.

Kristl, 437 F.3d 1050 (10th Cir. 2006).

      Judgment affirmed.

                                                 Entered for the Court



                                                 Robert H. McWilliams
                                                 Senior Circuit Judge




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