                                                                           FILED
                           NOT FOR PUBLICATION                              APR 17 2012

                                                                        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. 11-50122

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00032-BTM-1

  v.
                                                 MEMORANDUM *
ALFREDO PADILLA-VEGA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                             Submitted April 10, 2012 **
                               Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, District
Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      On January 6, 2010, Alfredo Padilla-Vega was indicted on one count of being

a deported alien found in the United States, in violation of 8 U.S.C. § 1326. After

unsuccessfully moving to dismiss the indictment, he entered a conditional guilty plea,

pursuant to which he was sentenced to 36 months in prison. He now appeals that

sentence on the ground that his prior deportation was invalid. The district court

rejected this argument. We affirm.

      Padilla-Vega was previously deported on the basis of being convicted of an

“aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii). He argues, however, that his

conviction for attempted sexual abuse of a minor under state law, see Or. Rev. Stat.

§ 163.427, did not constitute “sexual abuse of a minor” as defined by 8 U.S.C. §

1101(a)(43)(A). Thus, he contends, the prior conviction is not one for an “aggravated

felony.” That contention is incorrect.

      Properly applying the modified categorical approach, the district court found

the facts of Padilla-Vega’s Oregon conviction to fit squarely within this Circuit’s

definition of “sexual abuse of a minor.” See United States v. Medina-Villa, 567 F.3d

507, 513 (9th Cir. 2009) (requiring (1) sexual conduct; (2) with a minor; (3) that

constitutes abuse). Padilla-Vega argues that the Medina-Villa definition and the

modified categorical approach were impliedly overridden by the Supreme Court’s

opinion in Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009), which cited in dicta to


                                          2
this Circuit’s opinion in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1156 (9th Cir.

2008) (en banc) (discussing the definition of “sexual abuse of a minor”). But nothing

in Nijhawan, which determined whether a provision for monetary loss was an

“element” of the aggravated fraud or deceit felony appearing at 8 U.S.C. §

1101(a)(43)(M)(i), purports to reject either the approach employed by the district

court or the definition adopted in Medina-Villa. See Carachuri-Rosendo v. Holder,

130 S. Ct. 2577, 2587 n.11 (2010) (the holding in Nijhawan “was tailored to the

‘circumstance-specific’ language contained in [a] particular subsection of the

aggravated felony definition”).

      Nor does Padilla-Vega gain any traction from arguing that the statute of

conviction covers an overly broad range of conduct because it potentially punishes

acts that do not constitute “sex acts” or “abuse.” When determining whether a guilty

plea admits the elements of a generic offense, courts may consider “the terms of the

charging document” and “the terms of a plea agreement.” Shepard v. United States,

544 U.S. 13, 26 (2005). The district court appropriately relied upon the detailed terms

of Count Three of Padilla-Vega’s indictment, to which he pled guilty, stating that he

“unlawfully and intentionally attempted to subject [the victim], a person under the age

of 14 years, to sexual contact by attempting to touch her vaginal area.”




                                          3
      Importantly, in this Circuit, sexual conduct with children younger than fourteen

years is “per se abusive.” United States v. Valencia-Barragan, 608 F.3d 1103, 1107

(9th Cir. 2010). Because Padilla-Vega committed an “aggravated felony” as we have

defined that term, his prior deportation on that ground was valid. He was not eligible

for voluntary departure. Accordingly, the district court did not err in refusing to

dismiss the indictment.

      AFFIRMED.




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