* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 20 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JUAN MANUEL-MEDIANO,

Defendant-Appellant. No. 98-4084 (D.C. No. 97-CR-406-C) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T herefore, appellant’s request for oral argument is denied, an d the case is ordered submitted without oral argument.-2-

In 1991, defendant-appellant Juan Manuel-Mediano wa s convicted in Utah state court of sexual abuse of a child under Utah C ode Ann. § 76-5-404.1(2), and was sentenced to one to fifteen years’ imprisonment . Upon his parole in 1994, defendant was deported from the United States. In 1998, he was convicted of illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. The district court sentenced defendant to forty-six months’ impr isonment, imposing a sixteen level enhancement under U.S.S.G. § 2L1.2 for reentry following deportation after conviction of an aggravated felony. In this direct appeal, defendant asserts that the d istrict court erred in finding that it lacked discretion to consider the f acts of defendant’s underlying conviction in making a determination that defendant ’s conviction was for an aggravated felony. We review the district court’s interpretation and application of the Sentencing Guidelines de novo and its underl ying findings of fact for clear

error. See United States v. Flores , 149 F.3d 1272, 1279 (10th Cir. 1998), cert. denied , 119 S. Ct. 849 (1999). We exercise jurisdiction under 28 U.S.C. § 1291, and we affirm. Section 2L1.2(b)(1)(A) provides for a sixteen-level enhancement if an alien illegally reenters the United States after he has b een deported following a conviction for an aggravated felony. An aggravatedfelony is defined as, “any crime of violence (as defined in section 16 of Titl e 18, but not including a purely-3-

political offense) for which the term of imprisonme nt at least one year.” 8 U.S.C. § 1101(a)(43)(F). A crime of violence is defined a s: (a) an offense that has as an element the use, atte mpted use, or threatened use of physical force against the personor property of another, or (b) any other offense that is a felony and that, byits nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16. For purposes of the enhancement, s exual abuse of a minor is considered an aggravated felony. See 8 U.S.C. § 1101(a)(43)(A); see also United States v. Reyes-Castro , 13 F.3d 377, 378-79 (10th Cir. 1993) (classifyingsexual abuse of a minor under Utah Code Ann. 76-5-404.1(1) as a crime of violence and an aggravated felony). At sentencing, defendant requested that the court c onsider the facts of his underlying conviction in its determination of wheth er his crime constituted an aggravated felony for purposes of the sixteen-level enhancement. The district court declined to do so, opining that it did not have discretion to look to the facts of the underlying conviction used to support the enhancement. See R. Vol. II at 8. The court concluded that to do otherwise would be t o turn the sentencing into a “minitrial” of the merits of the prior conviction. Id. at 7. The district court’s decision is in conformity withthe law of this circuit. In Reyes-Castro , this court considered an appeal of the district c ourt’s denial of the-4-

defendant’s motions to dismiss a charge of illegal reentry or in the alternative to suppress evidence of the defendant’s prior deportation. The defendant in ReyesCastro had been previously charged with sexually abusing his twelve-year-old daughter. The defendant argued that his deportatio n was unfair and a deprivation of his right to judicial review because the Immigration and Naturalization Service improperly classified his state conviction as an aggravated felony. See 13 F.3d at 377-78. The Reyes-Castro court agreed with the Eighth Circuit’s decision in United States v. Rodriguez , 979 F.2d 138, 141 (8th Cir. 1992), holding that, in making a determination of whether an offense is a crime of v iolence, “a court must only look to the statutory definition, not the underlyin g circumstances of the crime.” 13 F.3d at 379; see also United States v. Frias-Trujillo , 9 F.3d 875, 877 (10th Cir. 1993) (“There is no indication that Congress intend ed ‘that a particular crime might sometimes count towards enhancement and somet imes not, depending on the facts of the case.’”) (quoting Taylor v. United States , 495 U.S. 575, 601 (1990)); United States v. Reyna-Espinosa , 117 F.3d 826, 830 (5th Cir. 1997) (reiterating prior holding that court should not lo ok to facts of underlying conviction to determine whether crime was an aggrav ated felony under § 2L1.2); United States v. Amaya-Benitez , 69 F.3d 1243, 1247-48 (2d Cir. 1995) (same). In Reyes-Castro, we concluded that, because sexual abuse of a child includes a-5-

substantial risk that physical force will be necess ary to gain compliance of the victim, the crime is a crime of violence under 18 U.S.C. § 16(b). See id. Defendant argues that in Rodriguez , the Eighth Circuit cited to dicta from United States v. Wright , 957 F.2d 520 (8th Cir. 1992), which would indicat e that the court has discretion to examine the facts of th e underlying crime in deciding whether the act involves a significant risk of physical harm to the victim. See Rodriguez , 979 F.2d at 141. Defendant misunderstands the rationale of the court in Rodriguez.
In Rodriguez , the court stated that “[a] sentencing court is no t required to consider the underlying circumstances at the time o f the crime in determining that a defendant has been convicted of a ‘crime of violence.’” Id. at 140-41. The court then acknowledged contrary dicta in Wright indicating “that the court may examine such underlying facts in deciding whether an offens e involves conduct that presents a serious potential risk of physical injury to another in the context of the career offender guideline (U.S.S.G. § 4B1.1).” Rodriguez , 979 F.2d at 141. Rodriguez distinguished Wright by noting that the Wright decision was guided by a different definition of “crime of violence” which p ermitted the court to look beyond the elements of the crime. See id. at 141 n.2. Rodriguez then concluded by holding that the phrase “by its nature,” found i n the statutory definition of a crime of violence in 18 U.S.C. § 16,-6-

would be rendered superfluous if the sentencing courts were saddled with the task of examining each individual offense committed to determine whether it actually involved substantial risk of physical force. . . . All crimes which by their nature invo lve a substantial risk of physical force share the risk of harm. It matters not one whit whether the risk ultimately causes actual harm. Ou r scrutiny ends upon a finding that the risk of violence is present

. Id. at 141. It is this holding that this court adopted and applied in Reyes-Castro, 13 F.3d at 379 , and it is this holding which we apply here in conc luding that the district court did not err in refusing to consider the underlying facts of defendant’s state conviction in determining whether he was conv icted of an aggravated felony warranting the sixteen-level enhancement mandated b y U.S.S.G. § 2L1.2(b)(2). This is also in conformity with the Supreme Court’s rationale in Taylor v United States . In Taylor , the Court considered the question of whether burg lary was a violent felony for purposes of sentence enhan cement under the Armed Career Criminal Act, 18 U.S.C. § 924(e). In so doi ng, the Court stated that “the practical difficulties and potential unfairness of a factual approach are daunting.” Taylor , 495 U.S. at 601. The Court opined that Congress did not intend sentencing proceedings to become retrials of the facts of the underlying conviction, see id. , and concluded that the sentencing court, when apply ing the statute, must “look only to the fact of conviction and the statutory definition of the prior offense” id. at 602.-7-

Defendant further asserts that the district court e rred in finding that it did not have discretion to consider defendant’s arguments for downward departure. We disagree. Here, after hearing arguments from bo th parties, the district court refused to grant defendant a downward departure. I t did not base its decision on a lack of authority to depart downward, but instead c arefully examined the circumstances presented by defendant and determinedthat no departure was in order. See R. Vol. II at 9-12. Because the court acknowledge d its authority to grant a downward departure, we have no jurisdictionto review its decision refusing to exercise that authority. See United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). The judgment of the United States District Court fo r the District of Utah is AFFIRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge