United States of America v. Felix Perez-Xia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Robert D. Sack, Senior Circuit Judge for the Second***
Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELIX PEREZ-XIA,
Defendant - Appellant.
No. 10-10380
D.C. No. 4:09-cr-02768-JMR-
CRP-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Submitted November 5, 2012**
San Francisco, California
Before: SACK, GOULD, and M. SMITH, Circuit Judges.***
Defendant-Appellant Perez-Xia appeals the sentence imposed following his
FILED
NOV 16 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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guilty plea to illegal reentry after deportation. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The district court did not commit plain error in determining that Perez-Xia’s
felony conviction for sexual indecency with a child qualified him for a 16-level
enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) because
the conviction meets the requirements for a crime of violence under the modified
categorical approach. A “crime of violence” is defined in the Guidelines to include
“sexual abuse of a minor.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt.
n.1(B)(iii). The district court correctly determined that Perez-Xia’s conduct in
exposing his genitals to a 4 year-old is sufficient to establish sexual abuse of a
minor under the modified categorical approach because “[t]he use of young
children for the gratification of sexual desires constitutes an abuse.” United States
v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). The district court did not
err in relying on the presentence report for a description of the underlying facts of
the prior conviction because the presentence report quoted from the information.
See United States v. Gonzalez-Aparicio, 663 F.3d 419, 423–33 (9th Cir. 2011).
The district court also did not err in determining that Perez-Xia’s suspended
sentence qualified him for a two-point increase in his criminal history score under
U.S. Sentencing Guidelines Manual § 4A1.1(d). Under § 4A1.1(d), two points

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may be added to the defendant’s criminal history category “if the defendant
committed the instant offense while under any criminal justice sentence [.]” U.S.
Sentencing Guidelines Manual § 4A1.1(d). A “criminal justice sentence” means a
sentence “having a custodial or supervisory component, although active
supervision is not required for this subsection to apply.” Id. § 4A1.1 cmt. n.4.
Perez-Xia committed the instant offense while under a suspended sentence for his
prior conviction. According to the presentence report, that suspended sentence
contained a community supervision component. Additionally, the district court
judge spoke with the probation officers and determined that even though “they are
not going to revoke [Perez-Xia] in Arkansas,” it is “not as though he still doesn’t
face at least the possibility of that.” Accordingly, the district court did not err in
determining that Perez-Xia’s suspended sentence constituted a “criminal justice
sentence” under § 4A1.1(d).
Finally, we find that Perez-Xia’s sentence of fifty-one months—the lowest
term under the applicable Guidelines range—was substantively reasonable. Perez-
Xia’s sentence is supported by the totality of the circumstances because the district
court properly considered the 18 U.S.C. § 3553(a) factors, including the risk Perez-
Xia presented as an unregistered sex offender.
AFFIRMED.

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