                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 18 2010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. 10-30035

              Plaintiff - Appellee,               DC No. CR 08-0525 KI

  v.
                                                  MEMORANDUM *
MANUEL ELIAS-GARCIA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                       Argued and Submitted October 4, 2010
                                 Portland, Oregon

Before:       TASHIMA, PAEZ, and CLIFTON, Circuit Judges.

       Manuel Elias-Garcia (“Elias”) appeals the 40-month sentence he received

following his guilty plea to one count of illegal re-entry after removal, in violation

of 8 U.S.C. § 1326. We review the district court’s interpretation of the Guidelines




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
de novo. United States v. Coronado, 603 F.3d 706, 708 (9th Cir. 2010). We affirm.

      Elias takes issue with the district court’s finding that he had previously been

convicted of a “crime of violence,” which resulted in a 16-level enhancement to his

offense level. See U.S.S.G. § 2L1.2(b)(1)(A) (2009). The district court imposed

this enhancement because it determined that Elias’ 1996 conviction pursuant to a

guilty plea to two counts of attempted first degree sexual abuse constituted “sexual

abuse of a minor.” See U.S.S.G. § 2L1.2, app n.1(B)(iii) (2009) (defining “crime

of violence” to include “sexual abuse of a minor”).

      We conclude that the district court properly applied the 16-level

enhancement because Elias’ prior conviction amounted to “sexual abuse of a

minor” under the modified categorical approach. By pleading guilty to the first

two counts in the indictment, Elias admitted that he attempted to touch the lips and

breasts of a girl under the age of 14. See United States v. Snellenberger, 548 F.3d

699, 701 (9th Cir. 2008) (en banc) (per curiam) (listing documents to be considered

under modified categorical approach). This conduct was sufficient to satisfy the

three elements of the generic federal definition of sexual abuse of a minor: “1)

sexual conduct; 2) with a minor; 3) that constitutes abuse.” United States v.

Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010). The conduct Elias

admitted to was undisputedly sexual. We consider whether conduct is sexual by


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“employing the ordinary, contemporary, and common meaning of the words that

Congress used.” United States v. Castro, 607 F.3d 566, 568 (9th Cir. 2010); see

also United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999)

(concluding that even “‘innocuous’ touching, ‘innocently and warmly received,’”

constitutes sexual conduct when “effected with lewd intent”); see also Or. Rev.

Stat. § 163.305(6) (defining “sexual contact” to include “any touching of the

sexual or other intimate parts of a person . . . for the purpose of arousing or

gratifying the sexual desire or either party”). The admission that the victim was

under 14 satisfies the final two elements. See Valencia-Barragan, 608 F.3d at

1107; see also Baron-Medina, 187 F.3d at 1147 (concluding that the use of

children under 14 for the gratification of sexual desire necessarily constitutes

abuse).

      We have previously recognized a second generic definition for sexual abuse

of a minor. See Estrada-Espinoza v. Mukasey, 546 F.2d 1147 (9th Cir. 2008) (en

banc). Our case law teaches, however, that the two definitions are complementary.

See Castro, 607 F.3d at 568-69. The proper analysis is to determine whether the

prior conviction is in accord with either definition. Id. Because Elias’ prior

conviction satisfies the elements of one of the generic definitions of sexual abuse




                                          -3-
of a minor, the district court correctly calculated Elias’ offense level under the

Sentencing Guidelines. His sentence is therefore

AFFIRMED.




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