UNITED STATES of America, Plaintiff-Appellee, v. Felix PEREZ-XIA, Defendant-Appellant, 488 F. App'x 249

MEMORANDUM Defendant-Appellant Perez-Xia appeals the sentence imposed following his 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)(l)(

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. l(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 § 4Al.l(d).

Under § 4Al.l(d), two points 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 § 4Al.l(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 § 4Al.l(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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.