                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 28 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30290

             Plaintiff-Appellee,                 D.C. No. CR 08-277-LAB

  v.
                                                 MEMORANDUM *
KENNETH J. HENDRYX,

             Defendant-Appellant.



                   Appeal from the United States District Court
                             for the District of Idaho
                    Larry A. Burns, District Judge, Presiding

                        Argued and Submitted May 3, 2010
                                Portland, Oregon


Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.




       Kenneth Hendryx pleaded guilty to one count of possession of a visual

depiction involving the use of a minor engaging in sexually explicit conduct in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violation of 18 U.S.C. § 2252(a)(4)(B). The district court determined that the ten

year mandatory minimum sentence applied. 18 U.S.C. § 2252(b)(2). Hendryx has

a 1993 conviction for sexual abuse of a child under the age of sixteen in violation

of Idaho Code Annotated § 18-1506. The district court sentenced Hendryx to 120

months’ imprisonment, the mandatory minimum. Hendryx appeals his sentence.




      18 U.S.C. § 2252(b)(2) imposes a mandatory minimum sentence of ten

years’ imprisonment for violations of § 2252(a)(4)(B) if the defendant has a

qualifying prior conviction. Among those are prior convictions “under the laws of

any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward.” Id. § 2252(b)(2). “We have broadly

interpreted [the identical language in 18 U.S.C. § 2252A(b)(1)] to apply not simply

to state offenses that are equivalent to sexual abuse, but rather to ‘any state offense

that stands in some relation, bears upon, or is associated with the generic offense.’”

United States v. Strickland, No. 08-30091, 2010 WL 1529414, at *2 (9th Cir. Apr.

19, 2010) (en banc) (quoting United States v. Sinerius, 504 F.3d 737, 743 (9th Cir.

2007)).




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      Under Sinerius, sexual abuse for purposes of § 2252A(b) has two elements:

(1) the abuse element, where “abuse” means “to use or treat so as to injure, hurt, or

damage[;] to commit indecent assault on,” which “encompasses behavior that is

harmful emotionally and physically,” and (2) the sexual element, where “‘sexual’

[is given] its ordinary and commonsense meaning.” Sinerius, 504 F.3d at 740–41

(internal quotation marks omitted).




      We apply the categorical approach of Taylor v. United States, 495 U.S. 575

(1990), to determine if Idaho Code Annotated § 18-1506 (!993) is a crime relating

to sexual abuse of a minor. The crime covers sexual conduct between a person at

least 18 years old and a victim under 16 years old. Idaho Code Ann. § 18-1506.

This includes statutory rape of a 15-year-old by an 18-year-old, which, we have

held, does not constitute abuse. See Estrada-Espinoza v. Mukasey, 546 F.3d 1147,

1160 (9th Cir. 2008) (en banc) (holding that statutory rape with a three-year age

difference element is not per se abusive).




      We therefore apply the modified categorical approach because the Idaho

crime is broader than the generic crime in that it covers more than conduct

“relating to sexual abuse . . . involving a minor or ward,” Sinerius, 504 F.3d at 739


                                             3
(alteration and internal quotations marks omitted), but it is not missing an element

altogether, see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007)

(en banc). Estrada-Espinoza does not apply to this case because the mandatory

minimum in 18 U.S.C. § 2252(b)(2) does not require that the prior conviction

conform to the federal sexual abuse of a minor statute, and instead covers a broader

range of state crimes relating to sexual abuse of a minor under Sinerius and

Strickland. A four-year age difference is not a required element of the generic

crime that triggers the mandatory minimum of § 2252(b)(2), so Hendryx’s Idaho

conviction is not missing an element of the generic crime. Therefore, we are not

precluded from applying the modified categorical analysis to Hendryx’s prior

conviction.




      Under the modified categorical approach, Hendryx’s prior conviction for

sexual abuse of a minor in violation of Idaho Code Annotated § 18-1506 is a

conviction relating to sexual abuse of a minor. The amended information in

Hendryx’s Idaho conviction establishes that Hendryx was 41 when he committed

the crime and his victim was 12. The district court properly looked to the amended

information to determine that although it is possible for an 18-year-old to violate §

18-1506, Hendryx was 41, not 18, when he violated the statute. See Shepard v.


                                          4
United States, 544 U.S. 13, 16 (2005) (holding that the charging document may be

used in the modified categorical analysis). The amended information also

establishes that Hendryx’s conviction was both sexual and abusive to a minor.




      The fact that Hendryx entered an Alford plea does not change the analysis.

A plea based on North Carolina v. Alford, 400 U.S. 25 (1970), is a guilty plea

where the defendant claims innocence but nevertheless pleads guilty, ordinarily to

avoid risk of a harsher sentence. See State v. Jakoski, 79 P.3d 711, 712 n.1 (Idaho

2003) (“When making an Alford plea, [named after North Carolina v. Alford], the

defendant pleads guilty while at the same time asserting that he or she is innocent

of the charge.”). An Alford plea is sufficient to trigger sentencing enhancements

for that conviction. United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197

(9th Cir. 2006). Moreover, such a plea admits all the factual allegations in the

information. Id.




      The district court was correct that, based on the modified categorical

analysis of Hendryx’s 1993 state conviction, the mandatory minimum ten year

sentence applies. Hendryx’s other challenges are to the sentencing guidelines

calculation, in his case. Given that the district court calculated the guidelines range


                                           5
to be 135–168 months, but chose to depart downwards and sentence Hendryx to

the mandatory minimum of 120 months, and that Hendryx cannot receive a lower

sentence than what he got, we need not reach the guidelines calculation or

Hendryx’s due process claim based on the introduction of the prior victim’s

testimony in the sentencing hearing.




      AFFIRMED.




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