                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4154



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


MARTIN GONZALEZ-MICHEL,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-371)


Submitted:   August 27, 2004                 Decided:   October 14, 2004


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert A. Ford, Steven P. Weaver, BROTHERTON FORD YEOMAN & WORLEY,
P.L.L.C., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Angela H. Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                   Martin   Gonzalez-Michel        pled     guilty    to        illegally

reentering the United States after he was deported following

conviction of an aggravated felony, 8 U.S.C. § 1326(a), (b)(2)

(2000). He received a sentence of forty-eight months imprisonment.

Gonzalez-Michel appeals his sentence, contending that the district

court erred in deciding that his prior North Carolina felony

conviction for taking indecent liberties with a child1 constitutes

a crime of violence warranting a 16-level enhancement under U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2003).                       We affirm.

                   Gonzalez-Michel was deported in 1998 after he was charged

with statutory rape of a girl under thirteen years old and pled

guilty to the reduced charge of taking indecent liberties with a

child.        He reentered the United States illegally in May 2000, and

was subsequently charged with illegal reentry after being convicted

of an aggravated felony.            He entered a guilty plea in November 2003

and was sentenced in February 2004.                  The 2003 Guidelines Manual

applied when he was sentenced.              See USSG § 1B.11(a) (requiring use

of Guidelines Manual in effect on date defendant is sentenced).

                   Guideline section 2L1.2(b) provides a base offense level

of   8       and    a   16-level   enhancement     if     the   defendant       has   been

convicted, before deportation, of certain offenses, including a

“crime        of     violence.”     USSG    §   2L1.2(b)(1)(A).            An    8-level


         1
          N.C. Gen. Stat. § 14-202.1 (LexisNexis 2003).

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enhancement     applies   if    the     defendant   was    convicted   of    an

“aggravated felony” before deportation.             USSG § 2L1.2(b)(1)(C).

Application Note 1(N)(iii) to § 2L1.2 states explicitly that sexual

abuse of a minor is a “crime of violence” within the meaning of

§ 2L1.2(b)(1)(A).     The term also includes other enumerated crimes

and “any offense under federal, state, or local law that has as an

element the use, attempted use, or threatened use of physical force

against the person of another.”         Id.   Application Note 3(B) states

that the 8-level enhancement shall be applied “for any aggravated

felony . . .       with respect to which the offense level is not

increased under subsections (b)(1)(A) or (B).”                When Gonzalez-

Michel   was    sentenced,     the    district   court    applied,   over   his

objection, the 16-level enhancement from subsection (b)(1)(A),

based on his conviction for taking indecent liberties with a child.

            In this appeal, Gonzalez-Michel argues first that his

North Carolina conviction for taking indecent liberties with a

child is not a crime of violence under § 2L1.2 because it does not

have as an element the use, attempted use, or threatened use of

force against the person of another.             Gonzalez-Michel does not

dispute that the offense constitutes sexual abuse of a minor.               See

United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th Cir.

2003) (“The use of young children for the gratification of sexual

desires constitutes an abuse.”) (internal quotation and citation

omitted).      We review de novo the legal issue of whether a state


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offense is a crime of violence under the sentencing guidelines.

United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002).

           Gonzalez-Michel’s first argument appears to focus on the

2002 version of § 2L1.2 and its commentary.2         The 2003 commentary

to § 2L1.2(b)(1) explicitly defines “sexual abuse of a minor” as a

crime of violence distinct from “forcible sex offenses.”              USSG

§ 2L1.2, comment. (n.1(B)(iii)).            Amendment 658, effective on

November 1, 2003, was intended in part to clarify the definition of

“crime of violence,” as used in § 2L1.2, and to “make[] clear that

the   enumerated   offenses   are   always    classified   as   “crimes   of

violence,” regardless of whether the prior offense expressly has as

an element the use, attempted use, or threatened use of physical

force against the person of another.”             Even before the 2003

amendment, other circuits held that a conviction for an offense

constituting sexual abuse of a minor, whether or not force was an

element of the offense, was a crime of violence as defined in

Application Note 1 to § 2L1.2. Pereira-Salmeron, 337 F.3d at 1152;

United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.), cert.

denied, 537 U.S. 1095 (2002); United States v. Gomez-Hernandez, 300


      2
      In the 2002 Guidelines Manual, the commentary to § 2L1.2
provided that “crime of violence,” as used in the guideline, “(I)
means an offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of force against
the person of another; and (II) includes murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling. USSG § 2L1.2,
comment. (n.1(B)(ii)) (2002).

                                    - 4 -
F.3d 974, 979 (8th Cir. 2002), cert. denied, 537 U.S. 1138 (2003).

Moreover, we held in Pierce that the particular North Carolina

offense at issue here was a crime of violence properly used as a

predicate offense for a career offender sentence. Pierce, 278 F.3d

at 289.

            Gonzalez-Michel also maintains that the commentary to

§ 2L1.2 should not be followed because it imposes a greater

punishment than is warranted by the language of the guideline

itself.    He relies on Stinson v. United States, 508 U.S. 36, 42-45

(1993)    (holding     that   guideline      controls   if   commentary   is

inconsistent    with   it).     We    discern   no   inconsistency   between

§ 2L1.2(b) and the definition of crime of violence set out in

Application Note 1(B)(iii).          Gonzalez-Michel’s final argument is

based on his analysis of the language of the 2002 version of

Application Note 1 which, as explained above, does not apply to his

sentencing.

            As Gonzalez-Michel has not identified any error in the

district court’s decision to impose the 16-level enhancement under

§ 2L1.2(b)(1)(A) for having been deported after conviction of a

crime of violence, we affirm the sentence imposed by the district

court.    We dispense with oral argument because the 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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