                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 20 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-4084
                                                    (D.C. No. 97-CR-406-C)
    JUAN MANUEL-MEDIANO,                                   (D. Utah)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , BARRETT , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore,

appellant’s request for oral argument is denied, and the case is ordered submitted

without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In 1991, defendant-appellant Juan Manuel-Mediano was convicted in Utah

state court of sexual abuse of a child under Utah Code Ann. § 76-5-404.1(2), and

was sentenced to one to fifteen years’ imprisonment. Upon his parole in 1994,

defendant was deported from the United States. In 1998, he was convicted of

illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. The district

court sentenced defendant to forty-six months’ imprisonment, imposing a sixteen

level enhancement under U.S.S.G. § 2L1.2 for reentry following deportation after

conviction of an aggravated felony.

      In this direct appeal, defendant asserts that the district court erred in

finding that it lacked discretion to consider the facts of defendant’s underlying

conviction in making a determination that defendant’s conviction was for an

aggravated felony. We review the district court’s interpretation and application

of the Sentencing Guidelines de novo and its underlying findings of fact for clear

error. See United States v. Flores , 149 F.3d 1272, 1279 (10th Cir. 1998),    cert.

denied, 119 S. Ct. 849 (1999). We exercise jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Section 2L1.2(b)(1)(A) provides for a sixteen-level enhancement if an alien

illegally reenters the United States after he has been deported following a

conviction for an aggravated felony. An aggravated felony is defined as, “any

crime of violence (as defined in section 16 of Title 18, but not including a purely


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political offense) for which the term of imprisonment at least one year.” 8 U.S.C.

§ 1101(a)(43)(F). A crime of violence is defined as:

       (a) an offense that has as an element the use, attempted use, or
       threatened use of physical force against the person or property of
       another, or

       (b) any other offense that is a felony and that, by its nature, involves
       a substantial risk that physical force against the person or property of
       another may be used in the course of committing the offense.

18 U.S.C. § 16. For purposes of the enhancement, sexual abuse of a minor is

considered an aggravated felony.      See 8 U.S.C. § 1101(a)(43)(A);     see also United

States v. Reyes-Castro , 13 F.3d 377, 378-79 (10th Cir. 1993) (classifying sexual

abuse of a minor under Utah Code Ann. 76-5-404.1(1) as a crime of violence and

an aggravated felony).

       At sentencing, defendant requested that the court consider the facts of his

underlying conviction in its determination of whether his crime constituted an

aggravated felony for purposes of the sixteen-level enhancement. The district

court declined to do so, opining that it did not have discretion to look to the facts

of the underlying conviction used to support the enhancement.          See R. Vol. II at 8.

The court concluded that to do otherwise would be to turn the sentencing into a

“minitrial” of the merits of the prior conviction.   Id. at 7.

       The district court’s decision is in conformity with the law of this circuit. In

Reyes-Castro , this court considered an appeal of the district court’s denial of the


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defendant’s motions to dismiss a charge of illegal reentry or in the alternative to

suppress evidence of the defendant’s prior deportation. The defendant in       Reyes-

Castro had been previously charged with sexually abusing his twelve-year-old

daughter. The defendant argued that his deportation was unfair and a deprivation

of his right to judicial review because the Immigration and Naturalization Service

improperly classified his state conviction as an aggravated felony.     See 13 F.3d at

377-78.

       The Reyes-Castro court agreed with the Eighth Circuit’s decision in      United

States v. Rodriguez , 979 F.2d 138, 141 (8th Cir. 1992), holding that, in making a

determination of whether an offense is a crime of violence, “a court must only

look to the statutory definition, not the underlying circumstances of the crime.”

13 F.3d at 379; see also United States v. Frias-Trujillo    , 9 F.3d 875, 877 (10th Cir.

1993) (“There is no indication that Congress intended ‘that a particular crime

might sometimes count towards enhancement and sometimes not, depending on

the facts of the case.’”) (quoting    Taylor v. United States , 495 U.S. 575, 601

(1990)); United States v. Reyna-Espinosa      , 117 F.3d 826, 830 (5th Cir. 1997)

(reiterating prior holding that court should not look to facts of underlying

conviction to determine whether crime was an aggravated felony under § 2L1.2);

United States v. Amaya-Benitez       , 69 F.3d 1243, 1247-48 (2d Cir. 1995) (same). In

Reyes-Castro, we concluded that, because sexual abuse of a child includes a


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substantial risk that physical force will be necessary to gain compliance of the

victim, the crime is a crime of violence under 18 U.S.C. § 16(b).        See id.

       Defendant argues that in     Rodriguez , the Eighth Circuit cited to dicta from

United States v. Wright , 957 F.2d 520 (8th Cir. 1992), which would indicate that

the court has discretion to examine the facts of the underlying crime in deciding

whether the act involves a significant risk of physical harm to the victim.        See

Rodriguez , 979 F.2d at 141. Defendant misunderstands the rationale of the court

in Rodriguez.

       In Rodriguez , the court stated that “[a] sentencing court is not required to

consider the underlying circumstances at the time of the crime in determining that

a defendant has been convicted of a ‘crime of violence.’”       Id. at 140-41. The court

then acknowledged contrary dicta in      Wright indicating “that the court    may examine

such underlying facts in deciding whether an offense involves conduct that

presents a serious potential risk of physical injury to another in the context of the

career offender guideline (U.S.S.G. § 4B1.1).”       Rodriguez , 979 F.2d at 141.

Rodriguez distinguished Wright by noting that the Wright decision was guided by a

different definition of “crime of violence” which permitted the court to look

beyond the elements of the crime.      See id. at 141 n.2. Rodriguez then concluded

by holding that the phrase “by its nature,” found in the statutory definition of a

crime of violence in 18 U.S.C. § 16,


                                             -5-
       would be rendered superfluous if the sentencing courts were saddled
       with the task of examining each individual offense committed to
       determine whether it actually involved substantial risk of physical
       force. . . . All crimes which by their nature involve a substantial risk
       of physical force share the risk of harm. It matters not one whit
       whether the risk ultimately causes actual harm. Our scrutiny ends
       upon a finding that the risk of violence is present.

Id. at 141. It is this holding that this court adopted and applied in     Reyes-Castro,

13 F.3d at 379 , and it is this holding which we apply here in concluding that the

district court did not err in refusing to consider the underlying facts of defendant’s

state conviction in determining whether he was convicted of an aggravated felony

warranting the sixteen-level enhancement mandated by U.S.S.G. § 2L1.2(b)(2).

       This is also in conformity with the Supreme Court’s rationale in         Taylor v

United States . In Taylor , the Court considered the question of whether burglary

was a violent felony for purposes of sentence enhancement under the Armed

Career Criminal Act, 18 U.S.C. § 924(e). In so doing, the Court stated that “the

practical difficulties and potential unfairness of a factual approach are daunting.”

Taylor , 495 U.S. at 601. The Court opined that Congress did not intend sentencing

proceedings to become retrials of the facts of the underlying conviction,           see id. ,

and concluded that the sentencing court, when applying the statute, must “look

only to the fact of conviction and the statutory definition of the prior offense”          id.

at 602.




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       Defendant further asserts that the district court erred in finding that it did

not have discretion to consider defendant’s arguments for downward departure.

We disagree. Here, after hearing arguments from both parties, the district court

refused to grant defendant a downward departure. It did not base its decision on a

lack of authority to depart downward, but instead carefully examined the

circumstances presented by defendant and determined that no departure was in

order. See R. Vol. II at 9-12. Because the court acknowledged its authority to

grant a downward departure, we have no jurisdiction to review its decision

refusing to exercise that authority.   See United States v. Rodriguez   , 30 F.3d 1318,

1319 (10th Cir. 1994).

       The judgment of the United States District Court for the District of Utah is

AFFIRMED.


                                                       Entered for the Court


                                                       Bobby R. Baldock
                                                       Circuit Judge




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