United States v. Benjamin Lopez-Patino, A.K.A. Benjamin Patino Lopez

This case principally presents the question whether a conviction under Arizona’s child abuse statute circa 1990 qualifies as a categorical crime of violence for purposes of the federal Sentencing Guidelines. We hold that it does not. However, applying this circuit’s modified categorical approach, we hold that the government adequately proved that the appellant’s Arizona conviction in fact qualified as a crime of violence. We also address other errors the appellant has raised in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2003, a jury found the appellant, Benjamin Lopez-Patino, guilty of illegally reentering the United States after having been previously deported, a violation of 8 U.S.C. § 1326 . During sentencing, the district court raised concerns about the presentence report — specifically, whether Lopez-Patino was entitled to the three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The government agreed with the district court’s concerns, and also asserted that Lopez-Patino’s prior conviction in 1990 under Arizona’s child abuse statute, Ariz.Rev. Stat. § 13-3623(C), was a “crime of violence” that should result in a sentence…