In United States v. Tafoya–Montelongo, the Ninth Circuit held that a § 76–5–404.1 violation is not categorically an aggravated felony because the statute encompasses a broader range of conduct than the federal generic definition. 659 F.3d 738, 743 (9th Cir.2011).
The district court committed no clear error in equating these effects to a permanent bodily injury. See id. (approving the district court's reliance on evidence from the trial to apply a sentencing enhancement). Because the district court properly applied the enhancement, Alvirez cannot show plain error. See United States v. Tafoya-Montelongo, 659 F.3d 738, 744 (9th Cir. 2011). D. Double Jeopardy
Because the statute criminalizes non-sexual conduct—such as kicking a boy's genitals—the statute is broader than generic sexual abuse of a minor. See United States v. Tafoya-Montelongo, 659 F.3d 738, 743 (9th Cir. 2011). Thus, the district court correctly recognized that Morales's conviction did not categorically qualify as an aggravated felony.
Because the record makes clear the legal issue Gonzalez Becerra advances was not raised below, he can only obtain relief on appeal by demonstrating the district court committed plain error. United States v. Tafoya–Montelongo, 659 F.3d 738, 741–42 (9th Cir.2011). “Relief for plain error is available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 741 (quotation omitted).
The district court committed no clear error in equating these effects to a permanent bodily injury. See id. (approving the district court's reliance on evidence from the trial to apply a sentencing enhancement). Because the district court properly applied the enhancement, Alvirez cannot show plain error. See United States v. Tafoya–Montelongo , 659 F.3d 738, 744 (9th Cir. 2011).D. Double Jeopardy
The district court correctly determined that Lozano's admission in his guilty plea that he committed "false imprisonment by menace" is sufficient to establish that his conviction was for a crime of violence under the modified categorical approach, because false imprisonment by means of menace cannot be effected in a non-violent manner. See Sykes, 131 S. Ct. at 2273, 2275 (concluding that the level of risk posed by an offense determines whether it should be categorized as violent under the residual clause); see also United States v. Tafoya-Montelongo, 659 F.3d 738, 743-44 (9th Cir. 2011) (recognizing that a district court may rely on statements in a guilty plea to support a conclusion that the defendant's action constituted a crime of violence); People v. Wardell, 162 Cal. App. 4th 1484, 1490 (2008) (noting that California defines "[m]enace. . . as a threat of harm express or implied by word or act") (citation and internal quotation marks omitted); United States v. Ladwig, 432 F.3d 1001, 1005 (9th Cir. 2005) (concluding that threats of harm, by their very nature, involve aggressive, violent, conduct). Therefore, the district court did not err in applying the career offender enhancement.
" Id. at 570 (citing 18 U.S.C. § 2246(2) (defining a sexual act)). "If the state conviction constitutes 'sexual abuse of a minor' under either generic federal definition, [a court] need not consider whether it satisfies the other definition." U.S. v. Tafoya-Montelongo, 659 F.3d 738, 743 (9th Cir. 2011). In U.S. v. Castro, the Ninth Circuit held that convictions under Section 288(c)(1) of the California Penal Code do not qualify as sexual abuse of a minor under either generic federal definition. 607 F.3d at 567-70.