UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4216

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALONSO FLORES SALAS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:08-cr-00086-LHT-1)

Submitted: March 18, 2010 Decided: April 1, 2010

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North 

Carolina, for Appellant. Edward R. Ryan, United States 

Attorney, Jennifer Lynn Dillon, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alonso Flores Salas pled guilty, without benefit of a 

plea agreement, to illegal reentry in violation of 8 U.S.C. 

§ 1326(a), (b)(2) (2006). The district court imposed a fiveyear sentence. Salas appeals his sentence, contending that the 

district court erred by increasing his base offense level by 

sixteen levels after finding that he previously had been 

deported after a North Carolina conviction for a crime of 

violence; specifically, felony indecent liberties with a child. 

See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) 

(2008). We affirm.

We review a sentence for reasonableness under an abuse 

of discretion standard, Gall v. United States, 552 U.S. 38, 51 

(2007), which requires consideration of both the procedural and 

substantive reasonableness of a sentence. Id. We first

determine whether the district court properly calculated the 

defendant’s advisory guidelines range, then consider whether the 

district court considered the 18 U.S.C. § 3553(a) (2006) 

factors, analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Id. We presume

that a sentence imposed within the properly calculated 

guidelines range is reasonable. Rita v. United States, 551 U.S. 

338, 347 (2007) (upholding presumption of reasonableness for 
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within-guideline sentence); United States v. Smith, 566 F.3d 

410, 414 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010). 

As used in § 2L1.2, the term crime of violence means

certain specific offenses, including sexual abuse of a minor. 

USSG § 2L1.2, comment. (n.1(B)(iii)). “Sexual abuse of a minor” 

means “physical or nonphysical misuse or mistreatment of a minor 

for a purpose associated with sexual gratification.” United 

States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). In 

Diaz-Ibarra, we held that the Georgia offense of felony 

attempted child molestation was a crime of violence because 

“every violation of the statute necessarily involved a 

defendant’s commission of an immoral or indecent act in a 

child’s presence with the intent to arouse either the defendant 

or the child.” Id. at 353. To determine whether a prior 

conviction is a crime of violence, we employ the categorical 

approach dictated by Taylor v. United States, 495 U.S. 575 

(1990), and consider only the statutory definition of the crime 

and the fact of the conviction. See Diaz-Ibarra, 522 F.3d at 

348. When the statute under scrutiny includes both violent and 

non-violent offenses, we may consider certain state court 

documents to discover whether the defendant’s conduct is within 

the definition of a crime of violence. Id. (quoting Shepard v. 

United States, 544 U.S. 13, 26 (2005)). However, in Salas’ 
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case, the materials included in the record on appeal contain no 

facts about his conduct from any state court documents.

Salas points out that (1) the North Carolina statute 

does not state that the criminal act must take place in the 

presence of the child, (2) the state court record does not 

disclose whether he touched the victim, and (3) unlike the 

Georgia statute at issue in Diaz-Ibarra, the North Carolina 

indecent liberties statute has been applied to acts committed 

outside the presence of the child. See State v. McClees, 424 

S.E.2d 687 (N.C. 1993). Salas thus contends that, under DiazIbarra, his indecent liberties offense is not a crime of 

violence because “the North Carolina courts have not strictly 

required that the child know of or be aware of the defendant’s 

act,” and instead apply the statute to acts which fall outside 

the categorical definition of “sexual abuse of a minor” 

recognized in Diaz-Ibarra. 

In Diaz-Ibarra, we did not directly address whether a 

defendant’s sexual abuse of a minor must occur in the presence 

of the victim. However, in the course of finding that no 

physical or psychological injury to the child is required, we 

agreed with the Fifth Circuit’s definition of “sexual abuse of a 

minor” as “gratifying or arousing one’s sexual desires in the 

actual or constructive presence of a child[.]” Diaz-Ibarra, 522 

F.3d at 351 n.6 (quoting United States v. Izaguirre-Flores, 405 
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F.3d 270, 275 (5th Cir. 2005)). While the North Carolina courts 

have held that the state’s indecent liberties statute applied to 

conduct that occurred outside the presence of the victim, see

State v. Every, 578 S.E.2d 642 (N.C. Ct. App. 2003); McClees, 

424 S.E.2d 687, in both cases the state court found that the 

defendant was constructively present when he committed the 

offense. Therefore, Salas has not shown that there is a 

realistic probability that his offense involved conduct that is 

outside the categorical definition of “sexual abuse of a minor” 

adopted in Diaz-Ibarra. 

Salas also maintains that his case is not controlled 

by United States v. Pierce, 278 F.3d 282 (4th Cir. 2002), which 

held that a North Carolina conviction for indecent liberties is 

a “forcible sex offense” and thus a crime of violence for career 

offender purposes because it presents a serious risk of physical 

injury under USSG § 4B1.2(a)(2) and Application Note 1. Because 

the term “crime of violence” is specifically defined in the 

commentary to § 2L1.2, Salas is correct that there is no need to 

look to Pierce. 

We conclude that the district court committed no 

procedural error and that Salas has failed to rebut the 

presumption of reasonableness which applies to his withinguideline sentence. We therefore affirm the sentence imposed by 

the district court. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED