United States v. Jose Perdomo-Castro , 441 F. App'x 416 ( 2011 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                               JUN 29 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         No. 10-10080
    Plaintiff - Appellee,              D.C. No. 4:09-cr-01637-JMR
    v.
    MEMORANDUM *
    JOSE ANGEL PERDOMO-CASTRO,
    a.k.a. Jose Angel Perdomo Castro, a.k.a.
    Jose Angel Peredomo-Castro,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    John M. Roll, Chief District Judge, Presiding
    Submitted June 15, 2011 **
    Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
    Jose Angel Perdomo-Castro appeals from the 48-month sentence imposed
    following his guilty-plea conviction for reentry after deportation, in violation of
    
    8 U.S.C. § 1326
    . We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    *
    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).
    Perdomo-Castro contends that the district court erred by imposing a 16-level
    enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his 2005 Texas felony sexual
    assault conviction. The district court did not err in imposing the enhancement, as
    the indictment and Perdomo-Castro’s judicial confession in the Texas case clearly
    show that the conviction was for a sex offense perpetrated without the victim’s
    consent through “the use of physical force and violence.” See U.S.S.G. § 2L1.2
    cmt. n.1(B)(iii) (forcible sex offense is a crime of violence); United States v.
    Espinoza-Morales, 
    621 F.3d 1141
    , 1149 (9th Cir. 2010) (prior conviction qualifies
    as a crime of violence if the “record of conviction shows the . . . defendant
    necessarily admitted all of the generic elements in a plea”) (internal quotations and
    footnote omitted).
    Perdomo-Castro also contends that the enhancement violates the
    constitutional proscription against ex post facto laws. He forfeited this argument
    by failing to raise it in his opening brief, and no exceptions to this rule apply. See
    Koerner v. Grigas, 
    328 F.3d 1039
    , 1048-49 (9th Cir. 2003).
    AFFIRMED.
    2                                       10-10080
    

Document Info

Docket Number: 10-10080

Citation Numbers: 441 F. App'x 416

Judges: Canby, Fisher, O'Scannlain

Filed Date: 6/29/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023