Tuesday, September 26, 2006

US v. Baza-Martinez, No. 05-10282 (9-26-06). The 9th vacates a 1326 sentence and remands for resentencing. Defendant plead to an illegal reentry. He was assessed a 16 level adjustment because his state prior (North Carolina) was "sexual abuse of a minor." Defendant argued that the statute was overbroad. The "sexual abuse" included conduct that was arguably not physically or psychologically harmful, such as "indecent liberties." Taking a categorical approach under Taylor, and not being able to take a modified categorical approach because of a lack of documents, the 9th agreed, and concluded that "sexual abuse of a minor" under N.C.G.S. 14-202 is not a "crime of violence"under 2L1.2 because its definitional elements does not necessarily require physical or psychological harm.


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