                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 14 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10184

              Plaintiff - Appellee,              D.C. No. 4:08-CR-01293-CKJ-
                                                 HCE-1
  v.

ERNESTO MARTINEZ-VAZÏUEZ,                        MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                     Argued and Submitted September 1, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       Appellant Ernesto Martinez-Vazquez appeals the district court's application

of a sixteen-level sentencing enhancement to his sentence for illegal reentry after

deportation. The district court found that Martinez-Vazquez's conviction under

North Carolina General Statute y 14-202.1 for taµing indecent liberties with a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
child qualified as 'sexual abuse of a minor' under the modified categorical

approach, and was therefore a crime of violence. Martinez-Vazquez appeals. We

have jurisdiction under 28 U.S.C. y 1291, and we affirm.

                  I. CATEGORICAL CRIME OF VIOLENCE

      We review de novo whether a prior conviction constitutes a 'crime of

violence' under U.S.S.G. y 2L1.2. United States v. Medina-Villa, 567 F.3d 507,

511 (9th Cir. 2009).

      To determine whether Martinez-Vazquezùs prior conviction qualifies as a

crime of violence, we apply the approach set forth in Taylor v. United States, 495

U.S. 575, 602 (1990). We first consider whether the prior offense 'is categorically

a crime of violence by assessing whether the full range of conduct covered by the

statute falls within the meaning of that term.' United States v. Grajeda, 581 F.3d

1186, 1189 (9th Cir. 2009) (internal quotations, alteration, and citation omitted). If

the statute of conviction punishes some conduct that would qualify as a crime of

violence and some conduct that would not, it does not categorically constitute a

crime of violence. See id. In that case, we then employ the 'modified categorical

approach,' which 'permits a court to determine which statutory phrase was the

basis for the conviction by consulting the trial record--including charging

documents, plea agreements, transcripts of plea colloquies, findings of fact and


                                          2
conclusions of law from a bench trial, and jury instructions and verdict forms.'

Johnson v. United States, 130 S. Ct. 1265, 1273 (2010).

      We previously held that the North Carolina General Statute y 14-202.1 does

not fit the generic definition of abuse of a minor because the least egregious end of

conduct covered by the statute does not necessarily result in psychological or

physical harm to a child and therefore is not necessarily abusive. United States v.

Baza-Martinez, 464 F.3d 1010, 1015-17 (9th Cir. 2006). Thus,

Martinez-Vazquezùs conviction can qualify as a crime of violence only under the

modified categorical approach.

                II. MODIFIED CATEGORICAL APPROACH

      Martinez-Vazquez argues that we cannot apply the modified categorical

approach to the North Carolina statute because the statute is missing an element of

the generic definition of sexual abuse of a minor. We have identified the elements

of 'sexual abuse of a minor' as (1) sexual conduct; (2) with a minor; (3) that

constitutes abuse. Medina-Villa, 567 F.3d at 513. Abuse in this context means

''physical or psychological harm' in light of the age of the victim in question.' Id.

Sexual conduct with younger children is per se abusive. Id. at 514-15.

      Martinez-Vazquez, relying on our decision in Baza-Martinez, argues that the

North Carolina statute is missing the element of abuse. However, the


                                          3
Baza-Martinez court concluded that the North Carolina statute 'is overbroad,'

noting that '[c]ertainly some of the conduct criminalized by this statute would fall

under our court's definition of 'sexual abuse of a minor.'' 464 F.3d at 1016-17. It

was only because we had no facts about Baza-Martinez's specific offense that we

could not apply the modified categorical approach. Id. at 1014. Because the North

Carolina statute is overbroad, the modified categorical approach is appropriate.

See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) ('The

modified categorical approach, however, only applies when the particular elements

in the crime of conviction are broader than the generic crime.').

                            III. PLEA DOCUMENTS

      Martinez-Vazquez also argues that, even if this court can apply the modified

categorical approach, the plea documents submitted are not judicially noticeable.

Before the district court, Martinez-Vazquez argued that the modified categorical

approach could not apply because Martinez-Vazquez had entered an Alford plea

and, thus, never admitted the facts of the crime. We have held, however, that an

Alford plea suffices for purposes of sentencing enhancements for that conviction.

United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006). We

also have 'approved of reliance on the prosecutor's statement of the factual basis

of the charge where defense counsel did not object to the factual statement.'


                                          4
United States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005)

(citing United States v. Smith, 390 F.3d 661, 666 (9th Cir. 2004), as amended by

405 F.3d 726 (9th Cir. 2005)).

      The prosecutor recited the factual basis for the plea during the plea colloquy.

The defense attorney did not object, even while disputing the veracity of the facts.

Before the prosecutor stated the facts, defense counsel stated: 'We stipulate and

have no objection.' While Martinez-Vazquez questions whether he can stipulate to

facts before they are recited, this argument fails because defense counsel never

objected to the facts. If the facts did not match what Martinez-Vazquez expected

to hear, counsel could have raised an objection. His failure to do so renders the

plea documents judicially noticeable.

  VI. APPLICATION OF THE MODIFIED CATEGORICAL APPROACH

      Applying the modified categorical approach, we hold that Martinez-

Vazquez's conviction qualifies as a crime of violence. We have 'previously

explained that the modified categorical approach is appropriate when the statute of

conviction is divisible into several crimes, some of which fall under the relevant

category, and some of which do not.' Estrada-Espinoza v. Muµasey, 546 F.3d

1147, 1159-60 (9th Cir. 2008) (citing Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th

Cir. 2005)). In such circumstances, we examine 'the charging document, written


                                          5
plea agreement, transcript of plea colloquy, and any explicit findings by the trial

judge to which the defendant assented' to determine the basis for the plea.

Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (9th Cir. 2005) (citing Shepard

v. United States, 544 U.S. 13, 26 (2005)). Therefore, we now examine the North

Carolina statute to determine if it is divisible into discrete crimes that might fit the

generic definition.

      The two subsections of North Carolina General Statute 14-202.1 are as

follows:

             (a) A person is guilty of taµing indecent liberties with children if,

      being 16 years of age or more and at least five years older than the child

      in question, he either:

                      (1) Willfully taµes or attempts to taµe any immoral,

             improper, or indecent liberties with any child of either sex under

             the age of 16 years for the purpose of arousing or gratifying

             sexual desire; or

                      (2) Willfully commits or attempts to commit any lewd or

             lascivious act upon or with the body or any part or member of the

             body of any child of either sex under the age of 16 years.




                                            6
Under (a)(2), which requires 'lewd or lascivious act upon or with the body or any

part or member of the body of any child,' physical harm necessarily results. In

addition, abuse is necessarily an element of (a)(2) if the child is under a certain age

because '[s]exual conduct with younger children is per se abusive.' United States

v. Castro, 607 F.3d 566, 568 (9th Cir. 2010). Therefore, the elements of 'sexual

abuse of a minor' all are present when a conviction falls under Section (a)(2) and

the child involved is under the age of 14.

      The facts here establish every element of Section (a)(2) and that the child

was under the age of 14. The facts in the plea colloquy show that Martinez-

Vazquez rubbed against the 12-year-old girl, 'µissing her and touching her on her

privates.' Although the statute required proof only that the victim was under the

age of 16, the facts offered demonstrate the victim was 12 years old. Because

sexual conduct with a 12-year-old is per se abusive, we affirm the sentencing

enhancement applied by the district court in this case.

      The district court ruling is AFFIRMED.




Rawlinson, Circuit Judge, concurring:

      I concur in the result.




                                             7
                                                 FILED
U.S. v. Martinez-Vazquez, Case No. 09-10184       DEC 14 2010
Rawlinson, Circuit Judge, concurring:         MOLLY C. DWYER, CLERK
                                               U.S . CO U RT OF AP PE A LS

     I concur in the result.
