United States v. Jose Magana

MEMORANDUM

Jose Magana appeals his 46-month sentence, imposed after Magana pled guilty, without an agreement, to illegal reentry in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

First, Magana contends that the district court erred when it calculated the applicable Sentencing Guidelines range. In particular, he argues that the district court incorrectly determined that his prior conviction for attempted sexual abuse in the first degree, in violation of New York Penal Law § 130.65 (2008), was a forcible sex offense and therefore was a crime of violence subject to a sixteen-level increase. See U.S.S.G. § 2L1.2(b)(l)(A)(ii).

We review the district court’s interpretation of the Guidelines de novo, its factual determinations for clear error, and its application of the Guidelines for abuse of discretion. United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir.2008). “The Guidelines, including enhancements, are ordinarily applied in light of available commentary, including application notes.” United States v. Staten, 466 F.3d 708, 715 (9th Cir.2006) (citing Stinson v. United States, 508 U.S. 36, 38 , 113 S.Ct. 1913 , 123 L.Ed.2d 598…