                                                                         FILED
                           NOT FOR PUBLICATION
                                                                        AUGUST 25 2014
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-10452

             Plaintiff - Appellee,               D.C. No. CR 12-1495-TUC-CKJ

  v.
                                                 MEMORANDUM*
GERMAN ACOSTA-SALINAS,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted August 11, 2014
                            San Francisco, California

Before: SILVERMAN and CLIFTON, Circuit Judges, and WATSON, District
Judge.**


       German Acosta-Salinas appeals his conviction by conditional guilty plea and

sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Derrick Kahala Watson, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
challenges both the district court’s (1) denial of his 8 U.S.C. § 1326(d) motion

collaterally attacking his prior deportation, and (2) 16-level sentencing

enhancement based on a prior conviction for a “crime of violence.”

      The denial of a motion to dismiss an indictment under 8 U.S.C. § 1326(d)

involves mixed questions of law and fact; we review the legal claims de novo and

the district court’s findings of fact for clear error. United States v. Ramos, 623 F.3d

672, 679-80 (9th Cir. 2010). We review de novo the district court’s determination

that a prior conviction constitutes a “crime of violence” under the United States

Sentencing Guidelines (“U.S.S.G.”). United States v. Gonzalez-Monterroso, 745

F.3d 1237, 1243 (9th Cir. 2014). We affirm.

      Acosta-Salinas moved to dismiss the indictment pursuant to 8 U.S.C.

§ 1326(d), arguing that his prior conviction for sexual abuse under Arizona Revised

Statutes (“A.R.S.”) § 13-1404 was not a crime involving moral turpitude and that

the immigration judge therefore incorrectly advised him that he was ineligible for

relief. We apply the modified categorical approach. See United States v.

Quintero-Junco, 754 F.3d 746, 751-52 (9th Cir. 2014). Pursuant to that approach,

and upon consideration of Acosta-Salinas’ record of conviction, we conclude that

both the immigration judge and district court correctly determined Acosta-Salinas’

sexual abuse conviction to be a crime of moral turpitude because Acosta-Salinas’

                                           2
intended sexual contact with the adult victim was without her consent and actually

harmed her. See Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir.

2013). The district court properly denied Acosta-Salinas’ Motion Challenging Prior

Deportation.

      Acosta-Salinas also argues that his conviction for sexual abuse is not a

“forcible sex offense” and that the district court erred in applying a 16-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for a “crime of violence.” A

conviction under A.R.S. § 13-1404 for non-consensual sexual contact with a person

over fifteen years of age is a “forcible sex offense,” such that it constitutes a “crime

of violence” for purposes of the enhancement. See Quintero-Junco, 754 F.3d at

753-54. The sentence imposed by the district judge was not in error.

      AFFIRMED.




                                           3
