                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4217


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE GUZMAN-ALVARADO, a/k/a Jose Alvarado,

                Defendant -   Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00139-RJC-1)


Submitted:   November 22, 2011              Decided:   December 12, 2011


Before WILKINSON and    GREGORY,    Circuit     Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Haakon Thorsen, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Jose Guzman-Alvarado pled guilty to unlawful reentry

of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006),       and     was   sentenced    to       a    term    of   forty-six       months’

imprisonment.          Guzman-Alvarado appeals his sentence, contending

that the district court plainly erred when it added a 16-level

increase in his offense level under U.S. Sentencing Guidelines

Manual § 2L1.2(b)(1)(A)(ii) (2010), on the ground that he had

previously been deported after being convicted of a crime of

violence.          We affirm.

               The enhancement Guzman-Alvarado challenges was based

on his prior conviction, pursuant to an Alford * plea, of four

counts of indecent liberties with a child, in violation of N.C.

Gen.       Stat.    § 14-202.1   (2009).          Guzman-Alvarado        contends      that

(1) the district court erred in failing to conduct an analysis

of   the      indecent      liberties    statute           under    Shepard    v.    United

States, 544 U.S. 13 (2005), to determine whether the statute

categorically qualified as a crime of violence; (2) the statute

is     not    categorically       a     crime         of    violence;    and    (3)     his

conviction, pursuant to an Alford plea, could not be used to

support the enhancement because he did not admit any facts.




       *
           North Carolina v. Alford, 400 U.S. 25 (1970).



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               Generally, whether a prior conviction is a crime of

violence is a legal issue that is reviewed de novo.                                    United

States    v.    Diaz-Ibarra,       522    F.3d    343,       347    (4th    Cir.       2008).

Because     Guzman-Alvarado         failed       to     challenge          the    16-level

enhancement in the district court, he must show plain error.

United States v. Olano, 507 U.S. 725, 732-37 (1993) (unpreserved

error may be corrected only if error occurred, that was plain,

and that affects substantial rights, and if failure to correct

error would seriously affect the fairness, integrity, or public

reputation of judicial proceedings); United States v. Lynn, 592

F.3d 572, 576-77 (4th Cir. 2010).

               Guzman-Alvarado      relies       on    our    decisions          in    United

States v. Vann, ___ F.3d ___, 2011 WL 4793230 (4th Cir. Oct. 11,

2011) (en banc) (Vann II)             (using modified categorical approach

to determine that defendant’s prior North Carolina convictions

for    indecent    liberties       were   not    “violent          felonies”      under    18

U.S.C. § 924(e) (2006)), and United States v. Alston, 611 F.3d

219 (4th Cir. 2010) (applying modified categorical approach to

determine       that    defendant’s       prior        Alford      plea     to    Maryland

second-degree assault did not establish a “violent felony” under

18 U.S.C. § 924(e)).         Neither case is helpful to him.

               The term “crime of violence” is defined in Application

Note    1(B)(iii)      to   USSG   § 2L1.2       and    encompasses        a     number    of

specific offenses, including “sexual abuse of a minor.”                               We have

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held that “sexual abuse of a minor” need not be a crime that

requires the use, or threatened use, of physical force against

another, but must be a crime that prohibits the “physical or

nonphysical       misuse    or     maltreatment      of   a    minor     for    a   purpose

associated with sexual gratification.”                    Diaz-Ibarra, 522 F.3d at

350, 352 (internal quotation marks omitted) (construing Georgia

felony   attempted        child     molestation      as    a    “crime    of    violence”

under USSG § 2L1.2(b)(1)(A)(ii)).

             To     determine         whether       Guzman-Alvarado’s               indecent

liberties conviction was a crime of violence as defined in USSG

§ 2L1.2,     we    may     apply    the   categorical          approach      set     out    in

Taylor v. United States, 495 U.S. 575 (1990), unless the statute

proscribes a number of offenses, not all of which qualify as

crimes of violence.          The analysis involves deciding whether “the

conduct criminalized by the statute, including the most innocent

conduct, qualifies as a ‘crime of violence.’”                       Diaz-Ibarra, 522

F.3d at 348.         To find otherwise, “there must be a realistic

possibility, not a theoretical possibility, that the state would

apply its statute to conduct that falls outside the definition

of   crime   of    violence.”          Id.       (internal     quotation       marks       and

citation omitted).          With respect to N.C. Gen. Stat. § 14-202.1,

we   conclude      that    there     is   no     realistic      probability          that    a

violation    of    the     statute    could      occur    without      the     “misuse      or

maltreatment of a minor for a purpose associated with sexual

                                             4
gratification.”               Diaz-Ibarra,         522    F.3d    at        352     (internal

quotation      marks          and   citation        omitted).           Therefore,          the

categorical approach is sufficient to establish that a violation

of N.C. Gen. Stat. § 14-202.1 constitutes a crime of violence

for purposes of USSG § 2L1.2.

            Guzman-Alvarado’s             reliance       on    Vann    II    is     misplaced

because Vann II does not address the term “crime of violence” as

it is defined in USSG § 2L1.2.                     Rather, Vann II held that the

North Carolina indecent liberties statute, viewed in light of

Begay v. United States, 553 U.S. 137 (2008), proscribes both

violent and non-violent felonies, as the term “violent felony”

is   defined    in       18    U.S.C.     § 924(e)(2)(B).             Assuming,          without

deciding, that the modified categorical approach was the correct

one, Vann II ultimately determined that the government had not

produced    Shepard-approved              documents       to     establish          that    the

defendant’s      convictions             for       violating      N.C.        Gen.         Stat.

§ 14-202.1(a)(2)          constituted          “violent        felonies”          that     would

subject him to enhanced sentencing as an armed career criminal

under 18 U.S.C. § 924(e).                Vann II, 2011 WL 4793230, at *1-4.

            Guzman-Alvarado asserts that his Alford plea, entered

without his admission of guilt or any facts, cannot be used to

establish a predicate offense.                     See Alston, 611 F.3d at 226.

However, because North Carolina’s indecent liberties statute is

categorically        a    crime     of    violence       under    USSG       § 2L1.2,        the

                                               5
district court did not need to consider any facts to find that

Guzman-Alvarado’s prior conviction for indecent liberties was a

crime   of    violence    under    USSG    § 2L1.2.         Consequently,      we   are

satisfied      that    the     district    court      did   not    plainly    err   in

treating      Guzman-Alvarado’s           prior      conviction      for      indecent

liberties as a crime of violence that warranted the 16-level

increase under USSG § 2L1.2(b)(1)(A)(ii).

              We   therefore      affirm       the   sentence      imposed    by    the

district     court.      We    dispense    with      oral   argument    because     the

facts   and    legal    contentions       are     adequately      presented    in   the

materials     before     the    court     and    argument    would     not    aid   the

decisional process.



                                                                              AFFIRMED




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