FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10014 Plaintiff-Appellee, D.C. No. v. 2:17-cr-1152- PHX-SPL LEVIAN DELA CAR PACHECO PACHECO, AKA Levian D. Pacheco, Defendant-Appellant. OPINION On Appeal from the United States District Court for the District of Arizona Steven P. Logan, District Judge, Presiding Argued and Submitted August 12, 2020 San Francisco, California Filed October 6, 2020 Before: Susan P. Graber and Daniel A. Bress, Circuit Judges, and Robert T. Dawson, * District Judge. Opinion by Judge Dawson * The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, sitting by designation. 2 UNITED STATES V. PACHECO SUMMARY ** Criminal Law The panel affirmed convictions for sexually abusing minors at a facility that housed unaccompanied noncitizen children. To establish federal jurisdiction under the statutes of conviction, 18 U.S.C. §§ 2243(b) and 2244(a)(4), the victims must be in “official detention”—a term that extends to detentions “pending . . . deportation.” 18 U.S.C. § 2246(5)(A). The panel held that, under § 2246(5)(A), the phrase “pending … deportation” does not require a finding of actual or inevitable removal from the United States. Instead, it is sufficient that, as here, the government had initiated removal proceedings against the minors, even though those proceedings were unresolved and the minors therefore did not face a certainty of deportation. Because the government presented testimony establishing that the minors in this case had been served with Notices to Appear in Immigration Court and were placed into removal proceedings that created the possibility of deportation, the panel concluded that the statute’s jurisdictional element was met. The panel addressed additional issues in an unpublished memorandum disposition. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. PACHECO 3 COUNSEL Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant. Peter S. Kozinets (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Chief; Michael Bailey, United States Attorney; United States Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee. OPINION DAWSON, District Judge: Levian Pacheco Pacheco appeals his convictions for sexually abusing minors at a facility that housed unaccompanied noncitizen children. After an eight-day jury trial, Pacheco was convicted of seven counts of abusive sexual contact with a ward, two counts of sexual abuse of a ward, and one count of attempted sexual abuse of a ward. See 18 U.S.C. §§ 2243(b), 2244(a)(4). To establish federal jurisdiction under the statutes of conviction, the victims must be in “official detention”—a term that extends to detentions “pending . . . deportation.” 18 U.S.C. § 2246(5)(A). Pacheco contends that his convictions should be vacated because the government presented insufficient evidence to demonstrate that the minors were in official detention. In Pacheco’s view, a person is “pending deportation” only if he is awaiting actual removal from the United States following a final ...
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