FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN ALBERTO MENDEZ-SOSA,

AKA Juan Mendez,

Defendant-Appellant.

No. 13-10664

D.C. No.

4:13-cr-01220-RCCBPV-1

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the District of Arizona

Linda R. Reade, Chief District Judge, Presiding

Argued and Submitted

January 16, 2015—San Francisco California

Filed March 2, 2015

Amended April 13, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Michelle T. Friedland, Circuit Judges.

Order;

Per Curiam Opinion
2 UNITED STATES V. MENDEZ-SOSA

SUMMARY*

Criminal Law

The panel affirmed a sentence for unauthorized reentry

into the United States after deportation, in a case in which the

district court assessed a 16-level enhancement based on its

conclusion that the defendant was previously convicted of

Criminal Sexual Contact under section 2C:14-3(b) of New

Jersey’s Criminal Justice Conduct Code, an offense the

district court concluded was a “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

The panel held that the applicable definition of

“conviction,” for purposes of implementing the sentencing

guidelines in the immigration context, is to be found in

federal law, not state law; and that Chapter Four of the

sentencing guidelines, and not the Immigration and

Nationality Act, provides the proper definition of

“conviction” for purposes of the enhancement.

The panel held that under Chapter Four’s definitions, the

defendant, who pled guilty to the New Jersey offense, was

“convicted of an offense,” which gave rise to a “prior

sentence,” which received at least one criminal history point. 

The panel held that because the New Jersey statute is

divisible and includes alternatives that do not involve the

absence of consent, the district court properly applied the

modified-categorical approach to determine that the

defendant was convicted of the statutoryalternative involving

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MENDEZ-SOSA 3

lack of consent. The panel concluded that based on the

defendant’s admission in his plea colloquy before the New

Jersey tribunal, the conduct for which he was convicted fit

within the guideline definition of a forcible sex offense, and

thus the definition of crime of violence. 

COUNSEL

Henry L. Jacobs (argued), Law Offices of Henry Jacobs,

PLLC, Tucson, Arizona, for Defendant-Appellant.

Erica L. Seger (argued), Assistant United States Attorney,

John S. Leonardo, United States Attorney, Robert L. Miskell,

Chief, Appellate Division, Tucson, Arizona, for PlaintiffAppellee.

ORDER

The opinion filed on March 2, 2015 is amended as

follows:

On slip opinion page 6, line 18, add the following citation

after “without her consent.”:

See Almanza-Arenas v. Holder, 771 F.3d

1184, 1192 (9th Cir. 2014) (Under the

modified categorical approach, “a court may

determine which particular offense the

noncitizen was convicted of by examining the

charging document and jury instructions, or in

the case of a guilty plea, the plea agreement,
4 UNITED STATES V. MENDEZ-SOSA

plea colloquy, or some comparable judicial

record of the factual basis for the plea”).

With this amendment, Judges Smith and Friedland voted

to deny the petition for rehearing en banc, and Judge Wallace

so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

Mendez-Sosa’s petition for rehearing en banc is therefore

DENIED. No further petitions for rehearing or rehearing en

banc will be entertained.

OPINION

PER CURIAM:

Juan Alberto Mendez-Sosa appeals from the district

court’s sentence of thirty-seven months in prison. The court

imposed this sentence after Mendez-Sosa pled guilty to

violating 8 U.S.C. § 1326(a), which prohibits unauthorized

reentry into the United States after deportation. In applying

the federal sentencing guidelines, the district judge assessed

a 16-level sentencing enhancement because she concluded

that Mendez-Sosa was previously convicted of Criminal

Sexual Contact under New Jersey law, an offense which the

judge concluded was a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). On appeal, Mendez-Sosa argues the 16-

level enhancement was improper for two reasons. First, he

argues that he was never “convicted” of the prior offense as

that term is defined by either New Jersey law or the
UNITED STATES V. MENDEZ-SOSA 5

Immigration and NationalityAct. Second, he argues that even

if he had been convicted of the prior offense, it was not a

“crime of violence.” We affirm.

I.

We review de novo the district court’s selection of the

applicable definition of the term “conviction,” as well as the

court’s application of that term to the facts. See United States

v. Leal-Felix, 665 F.3d 1037, 1040 (9th Cir. 2011) (en banc)

(reviewing de novo the district court’s interpretation of the

sentencing guidelines, including whether to adopt a state law

definition of “arrest”). We begin by rejecting Mendez-Sosa’s

argument that state law provides the relevant definition of

“conviction” in the present context. We have previously held

that federal sentencing enhancement provisions are to be

“interpreted according to a uniform, national definition,” and

should not be “dependent upon the vagaries of state law.” Id.

(internal quotation mark omitted). Thus, we hold that the

applicable definition of “conviction,” for purposes of

implementing the sentencing guidelines in the immigration

context, is to be found in federal law, not state law. See

United States v. Cuevas, 75 F.3d 778, 781 (1st Cir. 1996).

As to which federal law applies, the district court

correctly concluded that Chapter Four of the sentencing

guidelines, and not the Immigration and Nationality Act,

provides the proper definition of “conviction” for purposes of

the 16-level sentencing enhancement. Cf. United States v.

Pimentel-Flores, 339 F.3d 959, 963–64 (9th Cir. 2003) (in the

context of sentencing enhancements, the guideline definition

of “crime of violence” governs if “the guideline definition is

different from the statutory definition of that phrase,” because

“[e]ach definition works well within its respective regime”).
6 UNITED STATES V. MENDEZ-SOSA

The propriety of the 16-level enhancement “depend[s] on

whether the [prior] conviction receives criminal historypoints

under Chapter Four” of the guidelines. U.S.S.G. § 2L1.2, cmt

n.1(C). “Although the particular guideline at issue here

(§ 2L1.2) does not define ‘conviction,’ the guideline that

contains the general instructions for assessing a defendant’s

criminal history does provide clear guidance.” Cuevas,

75 F.3d at 782. Chapter Four states that, subject to some

inapplicable exceptions, at least one criminal history point is

to be added “for each prior sentence.” U.S.S.G. § 4A1.1(c).

“Where a defendant has been convicted of an offense,”

meaning “the guilt of the defendant has been established,”

including “by guilty plea,” “but not yet sentenced, such

conviction shall be counted as if it constituted a prior

sentence.” Id. § 4A1.2(a)(4). Mendez-Sosa pled guilty to the

New Jersey offense. Thus, under Chapter Four’s definitions,

Mendez-Sosa was “convicted of an offense,” which gave rise

to a “prior sentence,” which received at least one criminal

history point. Id. §§ 4A1.1(c); 4A1.2(a)(4). Accordingly, as

long as this “conviction” was for a “crime of violence,” the

16-level enhancement was proper.

II.

We review de novo whether a conviction under section

2C:14-3(b) ofNewJersey’s Criminal Justice Code constitutes

a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

See United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.

2009). We conclude that the offense at issue is a “crime of

violence” because it is a “forcible sex offense[]” as defined in

the federal sentencing guidelines. U.S.S.G. § 2L1.2, cmt

n.1(B)(iii). A“forcible sex offense” includes “any sex offense

involving the absence of the victim’s consent.” United States

v. Gallegos-Galindo, 704 F.3d 1269, 1270 (9th Cir. 2013)
UNITED STATES V. MENDEZ-SOSA 7

(emphasis added). See also United States v. Ruiz-Apolonio,

657 F.3d 907, 911–12 (9th Cir. 2011). New Jersey law states

that “[a]n actor is guilty of criminal sexual contact if he

commits an act of sexual contact” under four enumerated

circumstances, including by“physical force or coercion.” N.J.

STAT. ANN. § 2C:14-3(b), 2C:14-2(c)(1). Because the New

Jersey statute at issue is divisible and includes alternatives

that do not involve the absence of consent, the district court

properly applied the modified-categorical approach to

determine that Mendez-Sosa was convicted of the statutory

alternative involving lack of consent. See United States v.

Quintero-Junco, 754 F.3d 746, 751–53 (9th Cir. 2014).

Mendez-Sosa admitted in his plea colloquy before the New

Jersey tribunal that he “touched [the victim’s] breasts . . .

without her consent.” See Almanza-Arenas v. Holder,

771 F.3d 1184, 1192 (9th Cir. 2014) (Under the modified

categorical approach, “a court may determine which

particular offense the noncitizen was convicted of by

examining the charging document and jury instructions, or in

the case of a guilty plea, the plea agreement, plea colloquy, or

some comparable judicial record of the factual basis for the

plea”). Therefore, the conduct for which Mendez-Sosa was

convicted fit within the guideline definition of a forcible sex

offense, and thus the definition of a crime of violence. See

Gallegos-Galindo, 704 F.3d at 1274–75.

As a result, the district court did not err in imposing the

16-level sentencing enhancement.

AFFIRMED.