                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 05 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10284

              Plaintiff - Appellee,              D.C. No. 4:09-cr-02371-JMR-BPV

  v.
                                                 MEMORANDUM *
HUGO CORTEZ-AVILA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                       John M. Roll, Chief Judge, Presiding

                       Argued and Submitted April 15, 2011
                              Pasadena, California

Before: REINHARDT and GOULD, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Defendant-Appellant Hugo Cortez-Avila appeals the sentence imposed after

he pleaded guilty to illegally re-entering the United States following deportation, in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Robert J. Timlin, Senior Judge, United States District
Court for the Central District of California, sitting by designation.

                                          1
violation of 8 U.S.C. § 1326. In particular, Cortez-Avila argues that the district

court improperly imposed a 16-level sentence enhancement based on his prior

conviction for sexual battery under California Penal Code § 243.4(a). We disagree

and affirm the judgment of the district court.

      We review de novo whether a prior conviction constitutes a “crime of

violence” for purposes of U.S.S.G. § 2L1.2. United States v. Espinoza-Morales,

621 F.3d 1141, 1144 (9th Cir. 2010).

      Section 2L1.2(b)(1)(A) of the Sentencing Guidelines instructs a district court

to impose a 16-level increase in a defendant’s offense level where he was

convicted previously of a felony that is a “crime of violence.” See United States v.

Melchor-Meceno, 620 F.3d 1180, 1183 (9th Cir. 2010). Where a prior conviction

does not qualify categorically as a crime of violence,1 we turn to the “modified

categorical approach” to determine whether there is sufficient evidence in the

record to conclude that the defendant was necessarily convicted of the elements of

the generically defined crime. Id. As applied here, the modified categorical

       1
         The Government argues for the first time on appeal that a 2008
amendment to the Sentencing Guidelines effectively abrogated our previous
holdings that some physical force must exist for a sex offense to qualify as a crime
of violence and, as a result, that a § 243.4(a) conviction qualifies categorically as a
crime of violence. Because we conclude that the record establishes sufficient
physical force to qualify Cortez-Avila’s prior conviction as a crime of violence
under existing case law using the modified categorical approach, we decline to
address the impact of the 2008 amendment.

                                           2
approach requires a determination of whether the record unequivocally establishes

that the conduct for which Cortez-Avila was previously convicted involved at least

some level of physical force beyond that inherent in the unlawful sexual contact.

See United States v. Bolanos-Hernandez, 492 F.3d 1140, 1146 (9th Cir. 2007); see

also Espinoza-Morales, 621 F.3d at 1149.

      Applying the modified categorical approach, the district court found that

police reports from the sexual battery conviction included sufficient physical force

to qualify as a crime of violence. Cortez-Avila argues that the district court

improperly relied on the police reports and, in any event, that the police reports are

insufficient to establish that he committed a crime of violence.

      We reject Cortez-Avila’s contention that the district court erred in relying on

the police reports. The district court properly relied on the police reports because

Cortez-Avila’s counsel stipulated in the sexual battery case that the police reports

contain the factual basis for his guilty plea. See United States v. Almazan-Becerra,

537 F.3d 1094, 1098 (9th Cir. 2008); see also United States v. Hernandez-

Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (criminal defendants are bound by

their counsel’s stipulations).

      We also reject Cortez-Avila’s contention that the police reports do not

establish sufficient physical force to constitute a crime of violence. First, we reject



                                           3
Cortez-Avila’s contention that the district court should have relied on his account

of the incident provided in the police reports as opposed to facts provided by the

victim. Cortez-Avila’s statements to the police could not have been the facts

stipulated to as providing the basis for his conviction because they lacked facts

establishing, inter alia, unlawful restraint. See People v. Pahl, 277 Cal. Rptr. 656,

663 (Cal. Ct. App. 1991) (“[T]he unlawful restraint required for violation of

section 243.4 is something more than the exertion of physical effort required to

commit the prohibited sexual act.”); see also California Penal Code § 243.4(a)

(outlawing sexual touching accompanied by, inter alia, unlawful restraint). As the

facts provided by Cortez-Avila could not have formed the basis of his conviction,

those facts were not the subject of Cortez-Avila’s stipulation and the district court

properly disregarded them.

      Second, we reject Cortez-Avila’s contention that the facts provided in the

police reports by the victim do not establish sufficient physical force. The victim’s

statements in the police report establish at a minimum that, (1) when she first

attempted to leave the bedroom, Cortez-Avila stopped her by placing his hands on

her breast and, (2) when she again attempted to leave, Cortez-Avila put his hand,

palm up, on her crotch and attempted to digitally penetrate her. These facts

provide a basis for Cortez-Avila’s sexual battery conviction, making them subject



                                           4
to Cortez-Avila’s stipulation. They also establish sufficient physical force such

that the conviction constitutes a crime of violence under our existing case law. See

Bolanos-Hernandez, 492 F.3d at 1146; Espinoza-Morales, 621 F.3d at 1148.

      As Cortez-Avila’s prior conviction constitutes a crime of violence under the

modified categorical approach, the district court properly applied the 16-level

enhancement.

      AFFIRMED.




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