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United States v. Martin Alvarez-Yanez, 13-4046 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 13-4046 Visitors: 36
Filed: Jan. 17, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4046 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN ALVAREZ-YANEZ, a/k/a Martin Abraves-Yanez, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00152-CCE-1) Submitted: January 13, 2014 Decided: January 17, 2014 Before AGEE, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4046


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARTIN ALVAREZ-YANEZ, a/k/a Martin Abraves-Yanez,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00152-CCE-1)


Submitted:   January 13, 2014             Decided:   January 17, 2014


Before AGEE, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Kyle D. Pousson, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Martin       Alvarez-Yanez               appeals     the    forty-four         month

sentence imposed following this court’s remand for resentencing

pursuant to United States v. Vann, 
660 F.3d 771
(4th Cir. 2011)

(en banc).         On appeal, Alvarez-Yanez challenges the district

court’s    application          of    a     sixteen-level        sentencing         enhancement

under      U.S.           Sentencing              Guidelines            Manual         (“USSG”)

§ 2L1.2(b)(1)(A)(ii)            (2011),          upon    finding        that   he    had        been

deported after being convicted of a crime of violence.                                 Finding

no error, we affirm.

             In    reviewing          a     sentence,      we    must     ensure      that       the

district     court       did     not        commit      any     “significant         procedural

error,” such as failing to properly calculate the applicable

Guidelines       range.         Gall       v.    United       States,    
552 U.S. 38
,    51

(2007).      We        review    de       novo    the     issue    of     whether      a    prior

conviction constitutes a crime of violence for purposes of a

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

             A    defendant          like      Alvarez-Yanez       who    is    convicted         of

illegal reentry in violation of 8 U.S.C. § 1326 (2012), faces a

sixteen-level          increase           to    his     base     offense       level       if    he

previously       was    deported          from    the    United    States      following          “a

conviction for a felony that is . . . a crime of violence.”

USSG    § 2L1.2(b)(1)(A)(ii).                   Here,    the    district       court    applied

                                                  2
this enhancement based on Alvarez-Yanez’s prior conviction for

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

Gen. Stat. § 14-202.1 (2013).               Alvarez-Yanez relies on Vann to

argue   that    this    conviction      does   not    constitute      a    “crime     of

violence” for purposes of USSG § 2L1.2(b)(1)(A)(ii).

               We have recently held, in a published opinion, that a

North Carolina conviction for taking indecent liberties with a

minor qualifies categorically as sexual abuse of a minor, and

therefore      upheld     an     enhancement     under      the     very    Guideline

provision at issue here.           United States v. Perez-Perez, 
737 F.3d 950
, 951 (4th         Cir.     2013).      Alvarez-Yanez’s        arguments      to   the

contrary are therefore foreclosed.                  Accordingly, the district

court did not err in applying the challenged enhancement.

            We therefore affirm the district court’s judgment.                        We

dispense    with      oral      argument    because       the     facts    and    legal

contentions     are     adequately      presented    in    the    materials      before

this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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Source:  CourtListener

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