                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 17 2011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,                                   No. 11-10008

              Plaintiff-Appellee,                D.C. No. 4:10-cr-00222-DCB-JJM

  v.
                                                 MEMORANDUM *
PEDRO ESQUIVEL-MIRANDA,

              Defendant-Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                           Submitted October 26, 2011 **
                             San Francisco, California

Before: GRABER and IKUTA, Circuit Judges, and KAPLAN, *** Senior District
Judge.

       Pedro Esquivel-Miranda, a native and citizen of Mexico, pled guilty to a one-

count indictment charging him with illegal reentry into the United States after


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
          The Honorable Lewis A. Kaplan, Senior United States District Judge for
the Southern District of New York, sitting by designation.
deportation, in violation of 8 U.S.C. § 1326(b)(2), and was sentenced principally to

a term of imprisonment of 46 months. He appeals from the judgment, arguing that the

district court erred in (1) determining that his predicate felony conviction was a crime

of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A), and (2) failing to depart

downward or otherwise impose a lower sentence.

      We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s

interpretation of the sentencing guidelines, as well as the legality of a guideline

sentence, de novo. See United States v. Williams, 291 F.3d 1180, 1191 (9th Cir. 2002)

(per curiam), overruled on other grounds by United States v. Gonzales, 506 F.3d 940,

942 (9th Cir. 2007) (en banc); United States v. Alexander, 287 F.3d 811, 818 (9th Cir.

2002). We review a district court’s application of the sentencing guidelines to the

facts and the substantive reasonableness of a sentence under an abuse of discretion

standard. See United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

      Application Note 1(B)(iii) to U.S.S.G. § 2L1.2 includes “statutory rape” within

the meaning of the term “crime of violence.” The predicate state felony in this case

was third degree rape in violation of South Dakota Codified Laws § 22-22-1(5),

which defines the offense as “an act of sexual penetration accomplished with any

person . . . [i]f the victim is thirteen years of age, but less than sixteen years of age,

and the perpetrator is at least three years older than the victim.” We previously have


                                            2
held that the ordinary, contemporary, and common meaning of “minor” in the context

of statutory rape is a person under sixteen years of age.       See United States v.

Rodriguez-Guzman, 506 F.3d 738, 745 (9th Cir. 2007); United States v. Gomez-

Mendez, 486 F.3d 599, 603 (9th Cir. 2007). Hence, the predicate felony conviction

was a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) under the

categorical approach laid out in Taylor v. United States, 495 U.S. 575, 588-89 (1990).

      We do not and need not decide whether the generic federal definition of

“statutory rape” includes a requirement of an age difference of at least four years

between the victim and the person engaging in the crime. See Estrada-Espinoza v.

Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). We would reach the same

result even with such a requirement, as the judicially cognizable documents we may

review here under a modified categorical approach show that Esquivel-Miranda was

at least four years older than his victim. See Shepard v. United States, 544 U.S. 13,

26 (2005).

      The 46-month sentence that the district court imposed on Esquivel-Miranda was

at the bottom of the range under the guidelines. Generally, a “correctly calculated

Guidelines sentence will . . . not be found unreasonable on appeal.” United States v.

Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc). Sentencing courts have broad

discretion in determining the applicable punishment for a defendant. See Gall v.


                                          3
United States, 552 U.S. 38, 51-52 (2007); United States v. Paul, 561 F.3d 970, 974

(9th Cir. 2009) (per curiam). The district court did not abuse its discretion in

sentencing Esquivel-Miranda, and so the sentence must be upheld. See Gall, 552 U.S.

at 51 ("The fact that the appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal of the district

court.”).

       We accordingly affirm the district court.

       AFFIRMED.




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