                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 16 2012

                                                                        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. 10-10380

              Plaintiff - Appellee,              D.C. No. 4:09-cr-02768-JMR-
                                                 CRP-1
  v.

FELIX PEREZ-XIA,                                 MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, District Judge, Presiding

                          Submitted November 5, 2012 **
                            San Francisco, California

Before: SACK,*** GOULD, and M. SMITH, Circuit Judges.

       Defendant-Appellant Perez-Xia appeals the sentence imposed following his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
               The Honorable Robert D. Sack, Senior Circuit Judge for the Second
Circuit, sitting by designation.
guilty plea to illegal reentry after deportation. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      The district court did not commit plain error in determining that Perez-Xia’s

felony conviction for sexual indecency with a child qualified him for a 16-level

enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) because

the conviction meets the requirements for a crime of violence under the modified

categorical approach. A “crime of violence” is defined in the Guidelines to include

“sexual abuse of a minor.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt.

n.1(B)(iii). The district court correctly determined that Perez-Xia’s conduct in

exposing his genitals to a 4 year-old is sufficient to establish sexual abuse of a

minor under the modified categorical approach because “[t]he use of young

children for the gratification of sexual desires constitutes an abuse.” United States

v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). The district court did not

err in relying on the presentence report for a description of the underlying facts of

the prior conviction because the presentence report quoted from the information.

See United States v. Gonzalez-Aparicio, 663 F.3d 419, 423–33 (9th Cir. 2011).

      The district court also did not err in determining that Perez-Xia’s suspended

sentence qualified him for a two-point increase in his criminal history score under

U.S. Sentencing Guidelines Manual § 4A1.1(d). Under § 4A1.1(d), two points


                                           2
may be added to the defendant’s criminal history category “if the defendant

committed the instant offense while under any criminal justice sentence [.]” U.S.

Sentencing Guidelines Manual § 4A1.1(d). A “criminal justice sentence” means a

sentence “having a custodial or supervisory component, although active

supervision is not required for this subsection to apply.” Id. § 4A1.1 cmt. n.4.

Perez-Xia committed the instant offense while under a suspended sentence for his

prior conviction. According to the presentence report, that suspended sentence

contained a community supervision component. Additionally, the district court

judge spoke with the probation officers and determined that even though “they are

not going to revoke [Perez-Xia] in Arkansas,” it is “not as though he still doesn’t

face at least the possibility of that.” Accordingly, the district court did not err in

determining that Perez-Xia’s suspended sentence constituted a “criminal justice

sentence” under § 4A1.1(d).

      Finally, we find that Perez-Xia’s sentence of fifty-one months—the lowest

term under the applicable Guidelines range—was substantively reasonable. Perez-

Xia’s sentence is supported by the totality of the circumstances because the district

court properly considered the 18 U.S.C. § 3553(a) factors, including the risk Perez-

Xia presented as an unregistered sex offender.

      AFFIRMED.


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