Thursday, January 02, 2014

NC Prior for Taking Indecent Liberties With a Minor Is "Crime of Violence" for Illegal Reentry Guidelines

US v. Perez-Perez: Perez-Perez, a Mexican citizen, was convicted in 2001 for taking indecent liberties with a minor in North Carolina.  As a result, he was deported.  He returned to the United States, was caught, and pleaded guilty to illegal reentry.  At sentencing, the primary issue was whether his prior North Carolina conviction was a "crime of violence," triggering a 16-level increase under the applicable Guideline.  The district court held that it did and sentenced Perez-Perez to the bottom of the resulting Guideline range, 46 months.

Perez-Perez challenged his sentence on appeal and the Fourth Circuit affirmed.  Calling itself "constrained by our precedent" in US v. Diaz-Ibarra, the court concluded that Perez-Perez's North Carolina conviction was categorically a crime of violence when its elements were compared to the generic elements of a crime listed in the Guidelines as being a crime of violence, in this case sexual abuse of a minor.  The elements of the North Carolina offense set forth by the state courts "correspond in substance" with the Fourth Circuit's prior description of sexual about of a minor in Diaz-Ibarra.  That definition, the court noted has "extraordinary breadth."

Judge Davis wrote a concurring opinion, agreeing that the outcome was controlled by Diaz-Ibarra, but concluding that "the time has come to reconsider" that decision.

NOTE: This case was decided on December 18, 2013.

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