                                                                           FILED
                           NOT FOR PUBLICATION                              APR 05 2012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. 11-10070

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00921-DCB-
                                                 JCG-1
  v.

JOSE MAGANA, AKA Jose A. Magana,                 MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted February 16, 2012
                            San Francisco, California

Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.

       Jose Magana appeals his 46-month sentence, imposed after Magana pled

guilty, without an agreement, to illegal reentry in violation of 8 U.S.C. § 1326. We

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      First, Magana contends that the district court erred when it calculated the

applicable Sentencing Guidelines range. In particular, he argues that the district

court incorrectly determined that his prior conviction for attempted sexual abuse in

the first degree, in violation of New York Penal Law § 130.65 (2008),1 was a

forcible sex offense and therefore was a crime of violence subject to a sixteen-level

increase. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).

      We review the district court’s interpretation of the Guidelines de novo, its

factual determinations for clear error, and its application of the Guidelines for

abuse of discretion. United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.

2008). “The Guidelines, including enhancements, are ordinarily applied in light of

available commentary, including application notes.” United States v. Staten, 466



      1
         At the time of Magana’s offense, New York defined sexual abuse in the
first degree as follows:

      A person is guilty of sexual abuse in the first degree when he or she
      subjects another person to sexual contact:
      1.    By forcible compulsion; or
      2.    When the other person is incapable of consent by reason of
      being physically helpless; or
      3.    When the other person is less than eleven years old.

N.Y. Penal Law § 130.65 (2008). Effective November 1, 2011, New York
amended § 130.65 to add a fourth means of committing sexual abuse in the first
degree: “When the other person is less than thirteen years old and the actor is
twenty-one years old or older.” 2011 N.Y. Sess. Laws ch. 26 § 1 (McKinney).

                                           2
F.3d 708, 715 (9th Cir. 2006) (citing Stinson v. United States, 508 U.S. 36, 38

(1993)).

      The district court granted the Government’s motion to take judicial notice of

Magana’s prior conviction for attempted sexual abuse in the first degree.

According to the felony complaint and the information from which Magana pled

guilty, Magana helped move and undress an unconscious eighteen-year-old female

acquaintance, and then a co-defendant committed sexual assault by engaging in

mouth-to-breast contact on the unconscious woman. Magana was eighteen years

old at the time of the offense and also inebriated. He was sentenced to a year in

prison, and later deported.

      The Guidelines define a crime of violence to include “forcible sex offenses

(including where consent to the conduct is not given or is not legally valid, such as

where consent to the conduct is involuntary, incompetent, or coerced).” § 2L1.2

cmt. n.1(B)(iii). Magana claims that this definition does not apply to a sex offense,

like his, where the victim is unconscious. But an unconscious victim of sexual

abuse cannot give consent to sexual contact. Applying the modified categorical

approach, we agree with the district court that Magana’s prior conviction

constitutes a crime of violence under U.S.S.G. § 2L1.2. See United States v.

Espinoza-Morales, 621 F.3d 1141, 1148–49 (9th Cir. 2010).


                                          3
         Second, Magana claims that the district court erred by refusing to order the

government to move for a one-level reduction for his early acceptance of

responsibility by entering a pre-trial guilty plea. Under U.S.S.G. § 3E1.1(b), the

government may move for a one-point reduction in the offense level if the

defendant timely notifies the authorities of his intention to plead, “thereby

permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” See United States

v. Espinoza-Cano, 456 F.3d 1126, 1137 (9th Cir. 2006). We review de novo

“whether the district court misapprehended the law with respect to the acceptance

of responsibility reduction.” United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.

2002).

         At sentencing, the assistant United States attorney informed Magana and the

district court that the Government would not move for a one-level reduction

because Magana had not waived his right to appeal when he pled guilty. Magana,

citing cases from the Second and Fourth Circuits, argues that the Government’s

motive for withholding the motion was arbitrary and unrelated to the objective in

the Guidelines to conserve trial resources. But the Government’s refusal to move

for the one-level reduction is permitted under our case law. See United States v.




                                       Page 4 of 5
Johnson, 581 F.3d 994, 1002–03 (9th Cir. 2009); United States v. Medina-Beltran,

542 F.3d 729, 731 (9th Cir. 2008) (per curiam).

      Third, Magana argues that the enhancement provision of § 2L1.2 is not

empirically supported and impermissibly double-counts a prior conviction. But

under Kimbrough v. United States, 552 U.S. 85, 108 (2007), the district court is not

required to reject non-empirically-grounded Guidelines. Further, § 2L1.2 does not

impermissibly double-count a prior conviction. See United States v. Garcia-

Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam).

      Fourth, Magana argues that the district court erred by relying on his prior

conviction to reject a departure or downward variance based on cultural

assimilation. See § 2L1.2 cmt. n.8. Although most of the Guidelines factors favor

Magana, the district court did not abuse its discretion by relying on the seriousness

of Magana’s prior conviction and his familial ties outside the United States to

reject a downward departure or variance.

      Fifith, Magana contends that the sentence imposed by the district court is

substantively unreasonable. We disagree. Although a shorter sentence would have

been reasonable, the district court did not abuse its discretion when sentencing

Magana at the bottom of the correctly-calculated Guidelines range.

      AFFIRMED.


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