                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4216


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALONSO FLORES SALAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00086-LHT-1)


Submitted:   March 18, 2010                 Decided:   April 1, 2010


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant.       Edward R. Ryan, United States
Attorney,   Jennifer  Lynn   Dillon,   Assistant   United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Alonso Flores Salas pled guilty, without benefit of a

plea   agreement,      to    illegal    reentry         in     violation      of    8     U.S.C.

§ 1326(a), (b)(2) (2006).               The district court imposed a five-

year sentence.         Salas appeals his sentence, contending that the

district court erred by increasing his base offense level by

sixteen      levels    after      finding        that    he     previously          had     been

deported      after    a    North   Carolina        conviction         for    a     crime     of

violence; specifically, felony indecent liberties with a child.

See    U.S.    Sentencing         Guidelines        Manual          § 2L1.2(b)(1)(A)(ii)

(2008).      We affirm.

              We review a sentence for reasonableness under an abuse

of discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), which requires consideration of both the procedural and

substantive      reasonableness         of     a   sentence.            Id.         We     first

determine     whether       the   district       court       properly    calculated          the

defendant’s advisory guidelines range, then consider whether the

district      court    considered        the       18    U.S.C.       § 3553(a)           (2006)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                           Id.        We presume

that    a     sentence       imposed     within          the     properly          calculated

guidelines range is reasonable.                  Rita v. United States, 551 U.S.

338,   347    (2007)       (upholding    presumption           of    reasonableness          for



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within-guideline       sentence);      United        States     v.   Smith,     566       F.3d

410, 414 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010).

            As used in § 2L1.2, the term crime of violence means

certain specific offenses, including sexual abuse of a minor.

USSG § 2L1.2, comment. (n.1(B)(iii)).                   “Sexual abuse of a minor”

means “physical or nonphysical misuse or mistreatment of a minor

for a purpose associated with sexual gratification.”                                    United

States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008).                                     In

Diaz-Ibarra,    we     held    that       the        Georgia    offense        of       felony

attempted    child   molestation       was       a    crime    of    violence       because

“every     violation     of    the     statute          necessarily        involved            a

defendant’s    commission      of    an     immoral       or    indecent       act       in   a

child’s presence with the intent to arouse either the defendant

or   the   child.”     Id.    at    353.        To    determine      whether        a    prior

conviction is a crime of violence, we employ the categorical

approach    dictated    by    Taylor       v.    United    States,       495    U.S.      575

(1990), and consider only the statutory definition of the crime

and the fact of the conviction.                  See Diaz-Ibarra, 522 F.3d at

348.     When the statute under scrutiny includes both violent and

non-violent    offenses,      we     may        consider       certain    state         court

documents to discover whether the defendant’s conduct is within

the definition of a crime of violence. Id. (quoting Shepard v.

United States, 544 U.S. 13, 26 (2005)).                          However, in Salas’



                                           3
case, the materials included in the record on appeal contain no

facts about his conduct from any state court documents.

             Salas points out that (1) the North Carolina statute

does not state that the criminal act must take place in the

presence     of   the   child,    (2)       the    state   court     record       does      not

disclose     whether     he    touched       the    victim,   and     (3)       unlike      the

Georgia     statute     at    issue    in     Diaz-Ibarra,     the    North          Carolina

indecent liberties statute has been applied to acts committed

outside the presence of the child.                    See State v. McClees, 424

S.E.2d 687 (N.C. 1993).               Salas thus contends that, under Diaz-

Ibarra,     his   indecent      liberties          offense    is    not     a    crime       of

violence because “the North Carolina courts have not strictly

required that the child know of or be aware of the defendant’s

act,” and instead apply the statute to acts which fall outside

the    categorical       definition          of    “sexual    abuse       of     a    minor”

recognized in Diaz-Ibarra.

             In Diaz-Ibarra, we did not directly address whether a

defendant’s sexual abuse of a minor must occur in the presence

of    the   victim.      However,       in    the    course   of     finding         that    no

physical or psychological injury to the child is required, we

agreed with the Fifth Circuit’s definition of “sexual abuse of a

minor” as “gratifying or arousing one’s sexual desires in the

actual or constructive presence of a child[.]”                       Diaz-Ibarra, 522

F.3d at 351 n.6 (quoting United States v. Izaguirre-Flores, 405

                                              4
F.3d 270, 275 (5th Cir. 2005)).                While the North Carolina courts

have held that the state’s indecent liberties statute applied to

conduct that occurred outside the presence of the victim, see

State v. Every, 578 S.E.2d 642 (N.C. Ct. App. 2003); McClees,

424 S.E.2d 687, in both cases the state court found that the

defendant     was      constructively      present       when    he     committed         the

offense.      Therefore,         Salas   has     not   shown      that       there    is    a

realistic probability that his offense involved conduct that is

outside the categorical definition of “sexual abuse of a minor”

adopted in Diaz-Ibarra.

             Salas also maintains that his case is not controlled

by United States v. Pierce, 278 F.3d 282 (4th Cir. 2002), which

held that a North Carolina conviction for indecent liberties is

a “forcible sex offense” and thus a crime of violence for career

offender purposes because it presents a serious risk of physical

injury under USSG § 4B1.2(a)(2) and Application Note 1.                            Because

the   term   “crime       of   violence”   is    specifically         defined        in   the

commentary to § 2L1.2, Salas is correct that there is no need to

look to Pierce.

             We     conclude     that    the    district        court    committed         no

procedural        error    and   that    Salas     has    failed        to    rebut       the

presumption       of    reasonableness      which      applies     to        his   within-

guideline sentence.            We therefore affirm the sentence imposed by

the district court.            We dispense with oral argument because the

                                           5
facts   and   legal    contentions   are   adequately   presented    in   the

materials     before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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