United States v. Quintero-Junco

A district court that imposes a non-United States Sentencing Guidelines sentence for illegal reentry after deportation does not commit methodological or plain error where it treats the Guidelines as its starting point and then relies on the 18 U.S.C. § 3553(a) factors; and, a sentencing court’s improper execution in applying the modified categorical approach to a divisible statute when analyzing a defendant’s prior conviction is inconsequential where the elements of the pertinent statutory prong categorically match the elements of the United States Sentencing Commission’s definition of “forcible sex offense.”

A Mexican citizen, Juan Gregorio Quintero-Junco, was arrested on September 27, 2012, in Arizona. Having previously been deported in June of 2008, Quintero-Junco was charged with violating 8 U.S.C. § 1326 and illegal reentry after deportation. Without a plea agreement, Quintero-Junco pled guilty to the indictment. The Probation Office, in its Presentence Investigation Report (“PSR”), revealed that Quintero-Junco had a prior attempted sexual abuse conviction in violation of Arizona Revised Statutes § 13-1404. The PSR deemed Quintero-Junco’s prior conviction a “forcible sex offense” and thus a “crime of violence” which subjected him to a United States Sentencing Guidelines (“USSG” or “Guidelines”) § 2L1.2(b)(1)(A)(ii) sentencing enhancement. Quintero-Junco received his district court sentence on February 14, 2013. The district court began by calculating the appropriate Guidelines range, between twenty-seven months and thirty-three months, noting the potential for enhancement. The district court then sentenced Quintero-Junco to a term of fifty-two months. Quintero-Junco timely appealed, arguing that the district court erred in two ways: the court (1) did not give the Guidelines adequate weight, and (2) improperly classified his prior conviction as a forcible sex offense. The Ninth Circuit rejected both of Quintero-Junco’s arguments. The panel held: (1) a district court that imposes a non-USSG sentence for illegal reentry after deportation does not commit methodological or plain error where it treats the Guidelines as its starting point and then relies on the 18 U.S.C. § 3553(a) factors; and, (2) a sentencing court’s improper execution in applying the modified categorical approach to a divisible statute when analyzing a defendant’s prior conviction is inconsequential where the elements of the pertinent statutory prong categorically match the elements of the United States Sentencing Commission’s definition of “forcible sex offense.” AFFIRMED.