                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 29 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-10015

              Plaintiff - Appellee,              D.C. No. 4:12-cr-00848-RCC-
                                                 BGM-1
  v.

MIGUEL ANDRES MENDEZ,                            MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Arizona
                 Raner C. Collins, Chief District Judge, Presiding

                           Submitted January 14, 2014**
                             San Francisco, California


Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***




        *
             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 Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Miguel Andres Mendez appeals his sentence following a plea of guilty to a

violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, and we affirm.

      The district court did not plainly err in imposing a sixteen-level

enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”)

§ 2L1.2. See United States v. Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir.

2013) (stating that the court reviews for plain error when a defendant fails to raise

an issue before the district court). Mendez was convicted of violating Wisconsin

Statute § 940.225(3), which prohibits either sexual intercourse without consent or

sexual contact without consent. Applying the modified categorical approach,

Mendez’s conviction qualifies as a “crime of violence” because it constitutes a

“forcible sex offense” under U.S.S.G. § 2L1.2. See Descamps v. United States, —

U.S. —, 133 S. Ct. 2276, 2281–82 (2013) (permitting application of the modified

categorical approach only if a defendant was convicted of violating a divisible

statute); Suazo Perez v. Mukasey, 512 F.3d 1222, 1227 n.4 (9th Cir. 2008)

(explaining that the defendant’s entry of an Alford plea does not preclude the

application of the modified categorical approach). The judicially noticeable

documents that the government submitted to the district court demonstrate that

Mendez was convicted of third-degree sexual assault for having sexual intercourse


                                          2
with the victim without the victim’s consent. See Gallegos-Galindo, 704 F.3d at

1274–75 (holding that sexual intercourse without the victim’s consent constitutes a

“forcible sex offense”).

      AFFIRMED.




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