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Court says prior sex offense can weigh in illegal immigrant sentencing

A divided federal appeals court panel Wednesday upheld the 51-month sentence for a Mexican man charged with illegal re-entry to the country, saying his 2000 conviction for having sex with a 14-year-old girl could be counted against him.

Isaias Gonzalez-Aparicio, 38, had twice been deported when he pleaded guilty in 2009 to attempted illegal re-entry, a charge that would typically bring a sentence of two to eight months.

But a sentencing report recommended a term of 51 to 63 months, citing the earlier “crime of violence.” A U.S. district judge sentenced him to 51 months.

Gonzalez-Aparicio appealed, claiming his conviction for “sexual conduct with a minor” under Arizona law should not be categorized as statutory rape — a crime of violence — and that his sentence should have been much shorter.

Two of three judges on the 9th U.S. Circuit Court of Appeals disagreed, saying in their opinion that the lower court interpreted the sex offense correctly. In a dissenting opinion, Circuit Judge A. Wallace Tashima said the majority failed to address Gonzalez-Aparicio’s argument.

Aparicio was 26 in 1999 when he was charged with having repeated sexual contact with a minor, who was described in court papers as a 14-year-old distant cousin of his wife. He pleaded guilty to one count and was sentenced to one year in jail, which was reduced to 167 days the day after he was deported to Mexico in February 2000.

Gonzalez-Aparicio was not seen again until March 2009, when he was deported a second time. A month later, he was arrested by Border Patrol agents who caught Gonzalez-Aparicio crawling through a hole in the international border fence.

He pleaded guilty in August 2009 to one count of attempted illegal re-entry.

But a sentencing report added 16 levels to the sentencing guidelines, classifying the 2000 crime as statutory rape and a crime of violence.

Gonzalez-Aparicio argued on appeal that the federal definition for statutory rape generally requires a four-year age difference between the offender and the victim. Arizona law has no such age spread. It states that sexual conduct with a minor is defined as knowingly engaging in sexual intercourse or oral sexual contact with any person who is under 18 years old.

Since the state law does not include an age range for “statutory rape,” Gonzalez-Aparicio said the crime-of-violence increase should not be applied to his sentence.

But the appellate judges noted that under Arizona law the age of consent is 16, which makes his original conviction a “crime of violence” under federal law.

Gonzalez-Aparicio’s attorney Jeffery Glenn Buchella was not available for comment on the case Wednesday, but federal prosecutors praised the ruling.

“We are pleased that the 9th Circuit affirmed the sentence that was imposed by the district court,” said Robbie Sherwood, a spokesman for the U.S. Attorney’s Office for the District of Arizona.

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