                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-10664
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    4:13-cr-01220-RCC-
                                           BPV-1
JUAN ALBERTO MENDEZ-SOSA,
AKA Juan Mendez,                    ORDER AND
        Defendant-Appellant.      AMENDED OPINION


     Appeal from the United States District Court
              for the District of Arizona
    Linda R. Reade, Chief District Judge, Presiding

                Argued and Submitted
      January 16, 2015—San Francisco California

                Filed March 2, 2015
               Amended April 13, 2015

    Before: J. Clifford Wallace, Milan D. Smith, Jr.,
      and Michelle T. Friedland, Circuit Judges.

                          Order;
                    Per Curiam Opinion
2              UNITED STATES V. MENDEZ-SOSA

                           SUMMARY*


                          Criminal Law

    The panel affirmed a sentence for unauthorized reentry
into the United States after deportation, in a case in which the
district court assessed a 16-level enhancement based on its
conclusion that the defendant was previously convicted of
Criminal Sexual Contact under section 2C:14-3(b) of New
Jersey’s Criminal Justice Conduct Code, an offense the
district court concluded was a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).

    The panel held that the applicable definition of
“conviction,” for purposes of implementing the sentencing
guidelines in the immigration context, is to be found in
federal law, not state law; and that Chapter Four of the
sentencing guidelines, and not the Immigration and
Nationality Act, provides the proper definition of
“conviction” for purposes of the enhancement.

    The panel held that under Chapter Four’s definitions, the
defendant, who pled guilty to the New Jersey offense, was
“convicted of an offense,” which gave rise to a “prior
sentence,” which received at least one criminal history point.
The panel held that because the New Jersey statute is
divisible and includes alternatives that do not involve the
absence of consent, the district court properly applied the
modified-categorical approach to determine that the
defendant was convicted of the statutory alternative involving

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. MENDEZ-SOSA                    3

lack of consent. The panel concluded that based on the
defendant’s admission in his plea colloquy before the New
Jersey tribunal, the conduct for which he was convicted fit
within the guideline definition of a forcible sex offense, and
thus the definition of crime of violence.


                         COUNSEL

Henry L. Jacobs (argued), Law Offices of Henry Jacobs,
PLLC, Tucson, Arizona, for Defendant-Appellant.

Erica L. Seger (argued), Assistant United States Attorney,
John S. Leonardo, United States Attorney, Robert L. Miskell,
Chief, Appellate Division, Tucson, Arizona, for Plaintiff-
Appellee.


                          ORDER

    The opinion filed on March 2, 2015 is amended as
follows:

    On slip opinion page 6, line 18, add the following citation
after “without her consent.”:

       See Almanza-Arenas v. Holder, 771 F.3d
       1184, 1192 (9th Cir. 2014) (Under the
       modified categorical approach, “a court may
       determine which particular offense the
       noncitizen was convicted of by examining the
       charging document and jury instructions, or in
       the case of a guilty plea, the plea agreement,
4            UNITED STATES V. MENDEZ-SOSA

       plea colloquy, or some comparable judicial
       record of the factual basis for the plea”).

    With this amendment, Judges Smith and Friedland voted
to deny the petition for rehearing en banc, and Judge Wallace
so recommended.

    The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Mendez-Sosa’s petition for rehearing en banc is therefore
DENIED. No further petitions for rehearing or rehearing en
banc will be entertained.



                         OPINION

PER CURIAM:

    Juan Alberto Mendez-Sosa appeals from the district
court’s sentence of thirty-seven months in prison. The court
imposed this sentence after Mendez-Sosa pled guilty to
violating 8 U.S.C. § 1326(a), which prohibits unauthorized
reentry into the United States after deportation. In applying
the federal sentencing guidelines, the district judge assessed
a 16-level sentencing enhancement because she concluded
that Mendez-Sosa was previously convicted of Criminal
Sexual Contact under New Jersey law, an offense which the
judge concluded was a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). On appeal, Mendez-Sosa argues the 16-
level enhancement was improper for two reasons. First, he
argues that he was never “convicted” of the prior offense as
that term is defined by either New Jersey law or the
             UNITED STATES V. MENDEZ-SOSA                     5

Immigration and Nationality Act. Second, he argues that even
if he had been convicted of the prior offense, it was not a
“crime of violence.” We affirm.

                               I.

    We review de novo the district court’s selection of the
applicable definition of the term “conviction,” as well as the
court’s application of that term to the facts. See United States
v. Leal-Felix, 665 F.3d 1037, 1040 (9th Cir. 2011) (en banc)
(reviewing de novo the district court’s interpretation of the
sentencing guidelines, including whether to adopt a state law
definition of “arrest”). We begin by rejecting Mendez-Sosa’s
argument that state law provides the relevant definition of
“conviction” in the present context. We have previously held
that federal sentencing enhancement provisions are to be
“interpreted according to a uniform, national definition,” and
should not be “dependent upon the vagaries of state law.” Id.
(internal quotation mark omitted). Thus, we hold that the
applicable definition of “conviction,” for purposes of
implementing the sentencing guidelines in the immigration
context, is to be found in federal law, not state law. See
United States v. Cuevas, 75 F.3d 778, 781 (1st Cir. 1996).

    As to which federal law applies, the district court
correctly concluded that Chapter Four of the sentencing
guidelines, and not the Immigration and Nationality Act,
provides the proper definition of “conviction” for purposes of
the 16-level sentencing enhancement. Cf. United States v.
Pimentel-Flores, 339 F.3d 959, 963–64 (9th Cir. 2003) (in the
context of sentencing enhancements, the guideline definition
of “crime of violence” governs if “the guideline definition is
different from the statutory definition of that phrase,” because
“[e]ach definition works well within its respective regime”).
6            UNITED STATES V. MENDEZ-SOSA

    The propriety of the 16-level enhancement “depend[s] on
whether the [prior] conviction receives criminal history points
under Chapter Four” of the guidelines. U.S.S.G. § 2L1.2, cmt
n.1(C). “Although the particular guideline at issue here
(§ 2L1.2) does not define ‘conviction,’ the guideline that
contains the general instructions for assessing a defendant’s
criminal history does provide clear guidance.” Cuevas,
75 F.3d at 782. Chapter Four states that, subject to some
inapplicable exceptions, at least one criminal history point is
to be added “for each prior sentence.” U.S.S.G. § 4A1.1(c).
“Where a defendant has been convicted of an offense,”
meaning “the guilt of the defendant has been established,”
including “by guilty plea,” “but not yet sentenced, such
conviction shall be counted as if it constituted a prior
sentence.” Id. § 4A1.2(a)(4). Mendez-Sosa pled guilty to the
New Jersey offense. Thus, under Chapter Four’s definitions,
Mendez-Sosa was “convicted of an offense,” which gave rise
to a “prior sentence,” which received at least one criminal
history point. Id. §§ 4A1.1(c); 4A1.2(a)(4). Accordingly, as
long as this “conviction” was for a “crime of violence,” the
16-level enhancement was proper.

                              II.

    We review de novo whether a conviction under section
2C:14-3(b) of New Jersey’s Criminal Justice Code constitutes
a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
See United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.
2009). We conclude that the offense at issue is a “crime of
violence” because it is a “forcible sex offense[]” as defined in
the federal sentencing guidelines. U.S.S.G. § 2L1.2, cmt
n.1(B)(iii). A “forcible sex offense” includes “any sex offense
involving the absence of the victim’s consent.” United States
v. Gallegos-Galindo, 704 F.3d 1269, 1270 (9th Cir. 2013)
             UNITED STATES V. MENDEZ-SOSA                     7

(emphasis added). See also United States v. Ruiz-Apolonio,
657 F.3d 907, 911–12 (9th Cir. 2011). New Jersey law states
that “[a]n actor is guilty of criminal sexual contact if he
commits an act of sexual contact” under four enumerated
circumstances, including by “physical force or coercion.” N.J.
STAT. ANN. § 2C:14-3(b), 2C:14-2(c)(1). Because the New
Jersey statute at issue is divisible and includes alternatives
that do not involve the absence of consent, the district court
properly applied the modified-categorical approach to
determine that Mendez-Sosa was convicted of the statutory
alternative involving lack of consent. See United States v.
Quintero-Junco, 754 F.3d 746, 751–53 (9th Cir. 2014).
Mendez-Sosa admitted in his plea colloquy before the New
Jersey tribunal that he “touched [the victim’s] breasts . . .
without her consent.” See Almanza-Arenas v. Holder,
771 F.3d 1184, 1192 (9th Cir. 2014) (Under the modified
categorical approach, “a court may determine which
particular offense the noncitizen was convicted of by
examining the charging document and jury instructions, or in
the case of a guilty plea, the plea agreement, plea colloquy, or
some comparable judicial record of the factual basis for the
plea”). Therefore, the conduct for which Mendez-Sosa was
convicted fit within the guideline definition of a forcible sex
offense, and thus the definition of a crime of violence. See
Gallegos-Galindo, 704 F.3d at 1274–75.

    As a result, the district court did not err in imposing the
16-level sentencing enhancement.

   AFFIRMED.
