                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4578


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LENNOX BUCKLEY, a/k/a Jamaica Man, a/k/a Jamaic, a/k/a J.,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:12-cr-00023-IMK-JKS-1)


Submitted:   December 21, 2012            Decided:   December 31, 2012


Before GREGORY, DUNCAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Andrew R. Cogar, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lennox      Buckley    appeals      the       forty-six-month           sentence

imposed upon him after he pled guilty to unlawful reentry into

the United States after having been previously deported because

he had been convicted of a felony, in violation of 8 U.S.C.

§ 1326(a), (b) (2006).            Buckley’s sole contention on appeal is

that the district court erred in enhancing his sentence under

U.S.   Sentencing        Guidelines      Manual          (“USSG”)     § 2L1.2(b)(1)(A)

(2012) by construing Buckley’s 1992 Pennsylvania conviction for

indecent    assault      as   a    “crime      of        violence”     as        defined    in

§ 2L1.2(b)(1)(A).

            Whether the district court erred in characterizing a

defendant’s crime as a “crime of violence” under the Guidelines

is a question of law that is reviewed de novo.                       United States v.

Gomez, 690 F.3d 194, 197 (4th Cir. 2012).                         For defendants like

Buckley, who reentered the United States after having previously

been deported, USSG § 2L1.2(b)(1)(A)(ii) adds an enhancement to

the defendant’s base offense level if he has previously been

convicted   of    any     felony    “crime      of       violence.”          Id.;     United

States v.   Bonilla,      687     F.3d   188,    190       (4th     Cir.    2012).         The

application      notes    define      “crime        of     violence”        as     including

“forcible sex offenses (including where consent to the conduct

is not given or is not legally valid, such as where consent to



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the conduct is involuntary, incompetent, or coerced).”                                           USSG

§ 2L1.2, cmt. n.1(B)(iii).

               In determining whether any particular prior conviction

falls within the Guidelines definition of a “crime of violence,”

a sentencing court “must normally use a categorical approach

. . . , relying only on the fact of conviction and the elements

of the offense.”              United States v. Donnell, 661 F.3d 890, 893

(4th    Cir.    2011).         In     other      words,       the       court’s     inquiry      must

determine       not        whether        the     defendant’s            particular         conduct

underlying          the    conviction       was       violent,          but     whether     he    was

ultimately      held        legally       responsible         for       the    commission        of    a

crime in which violence inheres.                        See Begay v. United States,

553 U.S. 137, 141 (2008); United States v. Chacon, 533 F.3d 250,

254 (4th Cir. 2008).                Because the focus is on the scope of the

pertinent statute rather than on the particular conduct in which

the    defendant          engaged,    a    defendant         can    be     taxed     with    having

committed      a     crime     of    violence         only    if    the        “full   range”         of

conduct covered by the statute, “including the most innocent

conduct proscribed by the statute,” falls within the scope of

the Guidelines definition.                      United States v. Diaz-Ibarra, 522

F.3d 343, 352 (4th Cir. 2008); see also Gomez, 690 F.3d at 198-

200.

               In    Buckley’s        case,      the     district         court     applied       the

§ 2L1.2(b)(1)(A)             enhancement              based        on         his   Pennsylvania

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conviction of indecent assault under former 18 Pa. Cons. Stat.

Ann. § 3126 (West 1990). *   In our view, none of the arguments

advanced by Buckley demonstrate that the version of § 3126 in

effect at the time of Buckley’s 1992 conviction prohibited any

conduct that would not be deemed a “forcible sex offense[ ]”

under USSG § 2L1.2, cmt. n.1(B)(iii).   See Diaz-Ibarra, 522 F.3d

at 352.

          As we have explained, a sex offense may be forcible

even if the pertinent statute does not require physical force or

compulsion.   Chacon, 533 F.3d at 257-58; see also United States


     *
       In 1992, § 3126 provided, in pertinent part, that a
defendant is guilty of indecent assault if he has “indecent
contact with another not his spouse, or causes such other to
have indecent contact with him” and if:

     (1) he does so without the consent of the other person;
     (2) he knows that the other person suffers from a
     mental disease or defect which renders him or her
     incapable of appraising the nature of his or her
     conduct;
     (3) he knows that the other person is unaware that a
     indecent contact is being committed;
     (4) he has substantially impaired the other person’s
     power to appraise or control his or her conduct by
     administering or employing, without the knowledge of
     the other drugs, intoxicants or other means for the
     purpose of preventing resistance;
     (5) the other person is in custody of law or detained
     in a hospital or other institution and the actor has
     supervisory or disciplinary authority over him; or
     (6) he is over 18 years of age and the other person is
     under 14 years of age.

18 Pa. Cons. Stat. Ann. § 3126(a) (West 1990); Commonwealth v.
Owens, 649 A.2d 129, 137-38 (Pa. Super. Ct. 1994).


                                4
v. Diaz-Corado, 648 F.3d 290, 293-95 (5th Cir. 2011).                    Buckley

does   not   dispute    that    any   nonconsensual    sex     offense    is   a

“forcible” sex offense and therefore a “crime of violence” for

§ 2L1.2(b)(1)(A) purposes.          See USSG § 2L1.2, cmt. n.1(B)(iii);

Chacon, 533 F.3d at 256; Diaz-Corado, 648 F.3d at 295.              Instead,

Buckley argues that the Pennsylvania statute’s prohibition of

indecent contact with someone who is “unaware” that the conduct

is occurring, see § 3126(a)(3), sweeps consensual sexual contact

within the statute’s ambit.

             We disagree.      To adopt Buckley’s position, we would be

required to conclude that a recipient of sexual contact could

“consent” to the contact while being entirely unaware of it.

Buckley cites no other court in support of either his contortion

of the plain meaning of the terms at issue or his suggestion

that awareness is not a precondition to consent, and we decline

to accept his invitation to be the first.

             Nor does our review of the statute under which Buckley

was convicted suggest any other reason not to conclude that a

conviction    under    any     of   its   provisions   would    constitute     a

forcible sex offense and, consequently, a crime of violence for

purposes of USSG § 2L1.2(b)(1)(A).            See Chacon, 533 F.3d at 256-

58; United States v. Romero-Hernandez, 505 F.3d 1082, 1089 (10th

Cir. 2007).     The district court therefore properly applied the



                                          5
§ 2L1.2(b)(1)(A) enhancement to Buckley.               See Diaz-Ibarra, 522

F.3d at 352.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented      in   the   materials

before   this   court   and   argument   would   not    aid    the   decisional

process.

                                                                       AFFIRMED




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