                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4770


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ROBERTO RADILLA-AGUILAR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (4:10-cr-00104-FL-1)


Argued:   September 20, 2012                 Decided:   December 7, 2012


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant.   Kristine L. Fritz, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.  ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Appellant Roberto Radilla-Aguilar pled guilty to unlawful

reentry of a deported alien, in violation of 8 U.S.C. § 1326(a)

and    (b)(2),       and       was    sentenced          to     forty-seven            months’

imprisonment.        Radilla-Aguilar appeals his sentence, contending

that   the    district      court    erred       when    it   added     a    sixteen-level

increase      in    his    offense     level       under       the     U.S.      Sentencing

Guidelines     Manual      §     2L1.2(b)(1)(A)(ii)           (2010),       on   the    ground

that he had previously been convicted of a crime of violence.

For the reasons that follow, we affirm.



                                           I.

       Roberto Radilla-Aguilar is a native and citizen of Mexico

and an illegal alien in the United States.                            In January 2009,

Radilla-Aguilar pled guilty to two counts of indecent liberties

with a child, in violation of section 14-202.1 of the General

Statutes of North Carolina.                  The United States then deported

Radilla-Aguilar.

       Soon    after       his     deportation          in    2009,     Radilla-Aguilar

returned to the United States.                     In December 2010, a federal

grand jury in the Eastern District of North Carolina indicted

Radilla-Aguilar, charging him with illegally returning to the

United     States    after        having   been         deported      subsequent        to   a

conviction for an aggravated felony, in violation of 8 U.S.C.

                                             2
§ 1326(a)      and     (b)(2).          Radilla-Aguilar            pled     guilty      to    the

indictment.

         Thereafter,       a    probation        officer      prepared       a     presentence

report      (PSR)    for       Radilla-Aguilar.              The     PSR    recommended        an

advisory Guidelines range of forty-six to fifty-seven months’

imprisonment.         As part of the Guidelines range calculation, the

probation      officer          applied      a       sixteen-level          enhancement        to

Radilla-Aguilar’s          base     offense          level   based    on     his    conclusion

that     Radilla-Aguilar’s          North     Carolina       conviction          for   indecent

liberties     constituted          a    “crime       of   violence”        under    Guidelines

section 2L1.2(b)(1)(A)(ii).

         Radilla-Aguilar          objected       before      and     at     his     sentencing

hearing to the PSR’s characterization of his indecent liberties

conviction      as     a       “crime   of    violence.”             The    district     court

overruled          Radilla-Aguilar’s                 objection,        concluding            that

application of the enhancement was warranted because Radilla-

Aguilar’s previous conviction for indecent liberties qualified

as   a    “crime     of    violence.”            Accordingly,        the    district         court

sentenced Radilla-Aguilar to forty-seven months’ imprisonment,

which falls within the recommended advisory Guidelines range.

         Radilla-Aguilar         timely      appealed.          We    have        jurisdiction

pursuant to 28 U.S.C. § 1291.




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                                         II.

                                             A.

      Radilla-Aguilar       asserts          that       his    prior     conviction       of

indecent liberties with a child did not constitute a crime of

violence.      Whether a prior conviction is a crime of violence is

a legal issue that we review de novo.                         United States v. Diaz-

Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).

      Radilla-Aguilar      relies       on       our   recent       decision    in    United

States v. Vann, 660 F.3d 771 (4th Cir. 2011) (en banc) (using

modified    categorical     approach          to       determine      that     defendant’s

prior North Carolina convictions for indecent liberties were not

“violent felonies” under 18 U.S.C. § 924(e)).                         Vann, 660 F.3d at

772-75.    However, this case is unhelpful to him.

      Radilla-Aguilar’s      reliance             on   Vann    is    misplaced       because

Vann does not address the term “crime of violence” as it is

defined in Guidelines section 2L1.2.                    Rather, Vann held that the

North Carolina indecent liberties statute, viewed in light of

Begay v. United States, 553 U.S. 137 (2008), proscribes both

violent and non-violent felonies, as the term “violent felony”

is   defined    in   18   U.S.C.    §    924(e)(2)(B).               Assuming,       without

deciding, that the modified categorical approach was the correct

one, Vann ultimately determined that the government had failed

to produce enough Shepard-approved documents, Shepard v. United

States, 544 U.S. 13 (2005), to establish that the defendant’s

                                             4
convictions for violating section 14-202.1(a)(2) of the General

Statutes     of     North          Carolina        constituted            “violent      felonies”

subjecting       him     to        enhanced    sentencing            as     an    armed       career

criminal under 18 U.S.C. § 924(e).                            Vann, 660 F.3d at 773-76.

Because our decision in Vann addressed a different enhancement

provision than the one at issue in this case, our decision in

Vann does not control the outcome in this case.



                                               B.

     Instead, our analysis begins with Guidelines section 2L1.2,

Application       Note     1(B)(iii)          and    the      definition         of     “crime      of

violence.”          For       defendants            like      Radilla-Aguilar               who    are

convicted    of    unlawfully             entering       or     remaining        in    the    United

States,    the    Guidelines             mandate     a   sixteen-level           offense          level

enhancement        if     the        defendant           previously         was        deported—or

unlawfully remained in the United States—after a conviction for

a   felony        that        is     a     “crime        of      violence.”                 U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).                The definition encompasses a number of

specific offenses, including “sexual abuse of a minor.”                                      We have

held that “sexual abuse of a minor” need not be a crime that

requires the use, or threatened use, of physical force against

another, but it must be a crime that prohibits the “physical or

nonphysical       misuse      or     maltreatment          of    a   minor       for    a    purpose

associated with sexual gratification.”                          Diaz-Ibarra, 522 F.3d at

                                                5
350, 352 (quoting United States v. Padilla-Reyes, 247 F.3d 1158,

1163        (11th         Cir.     2001))         (internal       quotation         marks

omitted)(construing Georgia felony attempted child molestation

as      a     “crime        of     violence”        under       Guidelines      section

2L1.2(b)(1)(A)(ii)).

       To determine whether Radilla-Aguilar’s indecent liberties

conviction      is    a    crime    of   violence,      as   defined     by   Guidelines

section 2L1.2, we may apply the categorical approach set out by

Taylor v. United States, 495 U.S. 575 (1990), unless the statute

proscribes a number of offenses, not all of which qualify as

crimes of violence.               In applying the categorical approach, we

look at only the “essential elements of the offense and the fact

of conviction.”            United States v. Baxter, 642 F.3d 475, 476 (4th

Cir.    2011).         This      analysis     involves       deciding    whether    “the

conduct criminalized by the statute, including the most innocent

conduct, qualifies as a ‘crime of violence.’”                       Diaz-Ibarra, 522

F.3d at 348.           To find otherwise, “there must be ‘a realistic

probability,         not    a    theoretical      possibility,’     that      the   state

would       apply    its    statute      to   conduct    that    falls    outside    the

definition of ‘crime of violence.’”                     Id. (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

       The specific inquiry here is whether a violation of section

14-202.1 of the General Statutes of North Carolina can occur

without the “misuse or maltreatment of a minor for a purpose

                                              6
associated with sexual gratification.”                      Diaz-Ibarra, 522 F.3d at

352     (quoting        Padilla-Reyes,         247     F.3d    at    1163)     (internal

quotation marks omitted).                    With respect to section 14-202.1,

there    is   no       realistic       probability      that   a    violation    of   the

statute can occur without “misuse or maltreatment of a minor for

a purpose associated with sexual gratification.”                        Id.     (quoting

Padilla-Reyes,          247     F.3d    at    1163)    (internal     quotation     marks

omitted).     Therefore, we apply the categorical approach.                        Using

that approach, we conclude that a violation of section 14-202.1

constitutes        a    crime    of    violence       for   purposes   of     Guidelines

section 2L1.2.            Hence, the district court committed no error

when it applied the sixteen-level increase in offense level.



                                             III.

      We therefore affirm the sentence imposed by the district

court.

                                                                                AFFIRMED




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