     Case: 14-41161       Document: 00513246329         Page: 1     Date Filed: 10/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-41161                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                  October 26, 2015
                                                                            Lyle W. Cayce
                                                  Plaintiff - Appellee           Clerk

v.

VICTOR ALFONSO MONTEROLA-MATA,

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-953-1


Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       Regarding      the    contested     application     of   a   16-level       sentencing
enhancement that required a “crime of violence” prior to the underlying federal
offense for illegal reentry, primarily at issue is whether the elements of the
prior state statute of conviction categorically match the elements of the
Sentencing Guidelines enhancement. In challenging the enhancement, which


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 14-41161
was based upon his state-court conviction for aggravated criminal sexual
contact, Victor Alfonso Monterola-Mata claims that conviction cannot
constitute the requisite “crime of violence”. AFFIRMED.
                                        I.
      Monterola was convicted of being unlawfully present in the United
States after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Based on
his being an alien unlawfully in the United States following deportation, with
a prior New Jersey conviction for aggravated criminal sexual contact, his
Presentence Investigation Report (PSR) recommended a 16-level, crime-of-
violence enhancement, pursuant to Guideline § 2L1.2(b)(1)(A)(ii) (“[i]f the
defendant previously was deported . . . after a conviction for a felony that is
. . . a crime of violence . . . increase by 16 levels”). Monterola filed a written
objection to the recommended enhancement, maintaining it did not apply
because the New Jersey statute of conviction incorporated conduct that,
according to Monterola, fell outside the Guidelines’ definition of a “crime of
violence”.
      Responding to the objection, an addendum to the PSR stated Monterola’s
aggravated-criminal-sexual-contact conviction resulted from violation of a New
Jersey statute, § 2C:14-3(a) (“sexual contact” is “aggravated” when committed
under the circumstances enumerated in § 2C:14-2(a)). N.J. Stat. Ann. § 2C:14-
3(a). As discussed and quoted below, the addendum noted an individual could
violate § 2C:14-3(a) by committing any of the offenses listed under § 2C:14-
2(a)(2)–(7); relevant here, § 2C:14-2(a)(6) involves the use of physical force or
coercion, resulting in severe personal injury to the victim. Along that line, the
addendum referenced Monterola’s New Jersey plea form and stated: according
to that form, Monterola “pled guilty to the amended charge of 2C:14-3(a)(6)”;
“[a] review of the statute indicates that a person is guilty of aggravated
criminal sexual contact if he commits an act of sexual contact with the victim
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under any of the circumstances set forth in 2C:14-2a. (2) through (7)”; “[t]he
Plea Form narrows the [§ 2C:14-3(a)] conviction to subsection (6) which
indicates the actor uses physical force or coercion and severe physical injury is
sustained by the victim”; and, “[t]herefore, there is sufficient documentation
available to determine that the defendant’s New Jersey conviction is an
enumerated crime of violence and the 16-level enhancement is warranted”.
      The referenced plea form was a printed document with spaces to be filled
in, including for the specifics of the offense. Handwritten under “Nature of the
Offense” was “2C:14-3(a)(6)”. As discussed infra, § 2C:14-3(a) does not contain
any subsections; accordingly, the statute cited in the plea form, § “2C:14-
3(a)(6)”, does not exist. In any event, the plea form, which was in both English
and Spanish, was initialed by Monterola, and signed by him and his attorney.
      The PSR addendum additionally stated supporting documents, including
the plea form, were provided to the parties in advance of Monterola’s
sentencing hearing. According to Monterola, however, the plea form was not
in either the referenced supporting documents or the record at sentencing.
But, Monterola did not file objections to the addendum, including its substance
or any lack of the documents referred to in it.
      Neither Monterola nor the Government expressly referenced the
addendum at sentencing.      Instead, Monterola relied upon his state-court
judgment, contending his § 2C:14-3(a) conviction was not a “crime of violence”
under Guideline § 2L1.2(b)(1)(A)(ii) because the New Jersey statute
criminalized conduct falling outside that definition. In doing so, he stated the
statute “[did] not meet the elements of a crime of violence”. Asserting that the
statute “[could] be committed by the perpetrator engaging in the act by
touching himself and then being in the view of the victim, but not necessarily
being viewed by the victim”, Monterola maintained:          “[W]e don’t have [a


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                                   No. 14-41161
document] that necessarily pares down what [Monterola] necessarily pled
[guilty] to”.
      The Government countered:        any of the circumstances listed under
§ 2C:14-2(a)(2)–(7), as incorporated by § 2C:14-3(a), fit the Guideline definition
of a “crime of violence”. In doing so, the Government detailed each of those six
subsections, including (a)(6), saying it concerned “physical force, or severe
personal injury”. After describing subsection (a)(7), the Government stated:
“So the Government’s position is through any of those subsections, it is either
sexual abuse of a minor, a forcible sex offense, or just an offense where there
was the element or [sic] attempted use or threatened use of physical force”.
Therefore, it urged the enhancement was appropriate.
      Monterola    declined   to   respond   to    the   Government’s    position.
Characterizing that position as “persuasive”, the district court stated the
enhancement was merited, but did not specify which portion of the New Jersey
statute constituted the requisite “crime of violence”. The court then stated it
understood: the victim of Monterola’s state crime was a 14-year-old girl, who
would have been in the eighth grade at the time of the offense; and Monterola
was 21-years old at that time, meaning he was seven years older than his
victim. Monterola did not contest that understanding.
      After Monterola presented mitigating matters, including allocution, the
court adopted the PSR’s factual findings.         Upon concluding the advisory
sentencing range was appropriate under 18 U.S.C. § 3553(a) (sentencing
factors), the court sentenced Monterola to 46 months’ imprisonment.
      Following Monterola’s appeal, the Government moved to supplement the
appellate record with Monterola’s plea form for his prior New Jersey
conviction. Monterola did not object, and the motion was granted.




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                                         II.
      In contesting the 16-level enhancement, Monterola maintains:               his
conviction under § 2C:14-3(a) does not satisfy the Guidelines’ definition of a
“crime of violence” because the statute of conviction incorporates conduct
falling outside that definition; and the error resulting from the enhancement
was not harmless. The Government asserts, for the first time: Monterola’s
conviction can be narrowed based upon his plea form; and the resulting
narrowed conviction qualifies as a “crime of violence” under Guideline
§ 2L1.2(b)(1)(A)(ii). (Because we uphold the enhancement on this basis, we
need not reach the parties’ contentions concerning other portions of the
definition of “crime of violence” listed in § 2L1.2(b)(1)(A)(ii), or harmless error.)
                                         A.
      Prior to analyzing whether Monterola’s state-court conviction qualifies
as the requisite “crime of violence”, we must decide whether his conviction can
be narrowed. As discussed infra, narrowing is appropriate when the statute
for the prior conviction contains separate offenses, some of which may fall
outside the Guidelines’ definition of a “crime of violence”. Narrowing, through
the use of extrinsic sources, allows deciding the specific part of a statute for
which the defendant was convicted.
      In determining the enhancement applied, and although the addendum
discussed narrowing, the district court did not mention narrowing Monterola’s
state-court conviction.    Similarly, neither Monterola nor the Government
expressly presented any contentions at sentencing about this procedure.
(Arguably, the procedure was addressed implicitly, as shown in the earlier
extensive quotations from the addendum and sentencing.)
      A district court’s interpretation or application of the advisory Guidelines is
reviewed de novo. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). On the other hand, factual findings are reviewed for clear error.
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                                  No. 14-41161
Id. Issues not properly preserved, however, are reviewed only for plain error. See,
e.g., United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995). In order to
preserve a challenge to information contained in the PSR, a defendant must
present an objection in district court, in a manner that puts that court on notice
of any potential error. E.g., United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000); see United States v. King, 773 F.3d 48, 52 (5th Cir. 2014), cert. denied
135 S.Ct. 1865 (2015).
                                        1.
       Accordingly, the initial question is whether Monterola’s failure to object
in district court to narrowing his conviction necessitates plain-error review. In
that regard, although the district court, Monterola, and the Government failed
to expressly mention that procedure, it was discussed in the addendum to the
PSR.    (Again, it was arguably addressed implicitly at sentencing.)          The
addendum stated Monterola’s § 2C:14-3(a) conviction could be narrowed
through his plea form, which stated he pleaded guilty to “§ 2C:14-3(a)(6)”, as
quoted supra. The addendum also stated Monterola had been provided with a
copy of that form. As noted, Monterola did not object to the addendum.
       Instead, he based his challenge at sentencing on the offense listed in his
state-court judgment, § 2C:14-3(a) (“sexual contact” is “aggravated” when
committed under the circumstances established in § 2C:14-2(a)), and did not
mention either the addendum or the plea form.           In his reply brief here,
Monterola belatedly asserts: that form was not properly before the district
court; and, regardless, it is insufficient to narrow his state-court conviction.
       Although he had several opportunities in district court to present these
contentions about the addendum and plea form, Monterola failed to do so.
Therefore, plain-error review applies. Accordingly, Monterola must show the
court committed a clear or obvious error that affected his substantial rights.
E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). (If there is a showing
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                                  No. 14-41161
of reversible plain error, we have discretion to remedy the error if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
(alteration in original).)
                                         2.
      As addressed supra, the district court adopted the factual findings of the
PSR, which, of course, included those in the addendum, but did not mention
the addendum’s recommended narrowing of Monterola’s § 2C:14-3(a)
conviction by way of § 2C:14-2(a)(6). (Again, the plea form cited § 2C:14-3(a)(6)
as the offense to which Monterola pleaded guilty, but there is no such statute.)
In determining whether a defendant’s prior conviction supports the application
of a sentencing enhancement, courts employ a categorical approach.              See
Taylor v. United States, 495 U.S. 575, 602 (1990). The relevant inquiry does
not take into account a defendant’s conduct, but focuses on the statute of
conviction. United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004).
The elements of the statute forming the basis of the defendant’s conviction are
compared with the “elements of the ‘generic’ crime—i.e., the offense as
commonly understood”. United States v. Teran-Salas, 767 F.3d 453, 458 (5th
Cir. 2014), cert. denied 135 S.Ct. 1892 (2015). State and federal offenses are
only categorical matches when the state conviction involves “facts equating to
the generic federal offense”. Id. (alterations omitted).
      As discussed supra, when the statute of conviction contains separate
offenses, a court may narrow the statute through the use of extrinsic sources;
these sources include, but are not limited to, charging documents and plea
agreements.    Shepard v. United States, 544 U.S. 13, 25–26 (2005).            This
“modified categorical approach” is used “only to determine of which subsection
of a statute a defendant was convicted”. United States v. Gonzalez-Terrazas,
529 F.3d 293, 298 (5th Cir. 2008). And, if the statute cannot be narrowed, we
must consider “whether the least culpable act constituting a violation of that
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                                  No. 14-41161
statute” constitutes a “crime of violence” under § 2L1.2(b)(1)(A)(ii). United
States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008).
      As quoted supra, Monterola’s New Jersey plea form states he pleaded
guilty to the offense listed in “2C:14-3(a)(6)”. On the other hand, Monterola’s
judgment states he was convicted of § 2C:14-3(a), which criminalizes
aggravated criminal sexual contact. As noted, § 2C:14-3(a) does not contain
any subsections; in short, § “2C:14-3(a)(6)” does not exist.          In any event,
§ 2C:14-3(a) states: “An actor is guilty of aggravated criminal sexual contact if
he commits an act of sexual contact with the victim under any of the
circumstances set forth in 2C:14-2(a). (2) through (7).” N.J. Stat. Ann. § 2C:14-
3(a). Relevant here, § 2C:14-2(a)(6), described at sentencing by the
Government, is satisfied if “[t]he actor uses physical force or coercion and
severe personal injury is sustained by the victim”. N.J. Stat. Ann. § 2C:14-
2(a)(6).
                                        a.
      Monterola initially contends the plea form cannot be considered on
appeal because, although it is in the appellate record through the
Government’s post-appeal, unopposed motion’s being granted, it was not in the
record in district court. This assertion fails for several reasons.
      First, as noted, the PSR addendum stated the plea form was provided at
the district-court level to all parties, and Monterola did not object in district
court to this statement. Second, Monterola did not oppose the Government’s
motion to supplement the record with the plea form; in his reply brief here, he
asserts he did not contest the motion because our court should “have all
potentially relevant materials available for its consideration”. As the record
has been supplemented, by an unopposed motion no less, we are entitled to
consider the plea form, regardless of whether it was considered by the district


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court. United States v. Vargas-Soto, 700 F.3d 180, 183 (5th Cir. 2012); see
United States v. Garcia-Arellano, 522 F.3d 477, 479–80 (5th Cir. 2008).
                                        b.
      As noted, the plea form was not mentioned at sentencing. Here, the
Government contends, not unreasonably, that the form’s use of “2C:14-3(a)(6)”
is a short-hand method of incorporating § 2C:14-2(a)(6) into § 2C:14-3(a). In
response, Monterola maintains the plea form cannot be used to narrow his
state-court conviction because it is ambiguous.       Neither party cites any
relevant precedent.       Monterola additionally contends the circumstances
underlying his state-court conviction do not support the Government’s
assertion that it falls under § 2C:14-2(a)(6).
                                        i.
      First, Monterola notes he was indicted for violating § 2C:14-2(c)(4),
which prohibits sexual penetration of a victim who is at least 13, but less than
16, years old, and the actor is at least four years older than the victim. N.J.
Stat. Ann. § 2C:14-2(c)(4). In so doing, Monterola highlights the absence in the
statute of any element of force, coercion, or injury, all of which are enumerated
under § 2C:14-2(a)(6).
      Monterola’s indictment, however, does not control, because it does not
speak to the conduct of which he was convicted. See United States v. Turner,
349 F.3d 833, 836 (5th Cir. 2003). For the enhancement, the indictment cannot
be relied upon by the district court unless the offense charged was the one of
conviction. Id. In Turner, the defendant pleaded guilty to a lesser-included
offense than the one for which he was indicted, but the new charge was not
memorialized in a second charging document. Id. In the light of this, our court
held the indictment inapplicable to the district court’s analysis of whether the
conviction constituted a “crime of violence”. Id. Monterola’s contention suffers
from the same flaw; although his indictment and subsequent plea form are
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                                  No. 14-41161
part of the record, the offense for which he was indicted is not the offense for
which he was convicted.
                                       ii.
      Second, Monterola contends the addendum’s recommendation that his
conviction can be narrowed through § 2C:14-2(a)(6) is contradicted by the
PSR’s characterization of his crime as involving “consensual sex” with a 14-
year-old girl. By his own admission, however, a district court is not permitted
to rely upon a PSR’s characterization of a prior offense in determining whether
it supports a sentencing enhancement. See United States v. Garza-Lopez, 410
F.3d 268, 273–74 (5th Cir. 2005).
                                       iii.
      All that remains, then, is Monterola’s assertion that his conviction
cannot be narrowed because the plea form is ambiguous. As discussed, prior
to pronouncing sentence, the court adopted the PSR’s factual findings, which
included those in the addendum.       As quoted supra, the addendum stated
Monterola’s New Jersey plea form provided he pleaded guilty to § “2C:14-
3(a)(6)”; that statement constitutes a finding of fact. And, as also quoted supra,
the addendum stated Monterola’s plea form could be used to narrow his
conviction to § 2C:14-2(a)(6); that is a legal conclusion. Monterola did not
object to the addendum; therefore, as discussed supra, plain-error review
applies.
      As also discussed, for an error to be “plain”, it must be “clear” or
“obvious”; in short, it cannot be subject to reasonable dispute. United States v.
Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009) (citing Puckett, 556 U.S. at 135).
Furthermore, “[q]uestions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain error”. United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).


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                                  No. 14-41161
      Therefore, any challenge to the district court’s consideration of the
addendum’s findings of fact concerning the contents of Monterola’s plea form
cannot be plain error, because any factual disputes were capable of resolution
by the district court, upon proper objection. Id. Regarding consideration of the
plea form itself, at a minimum, a reasonable dispute exists over whether the
nonexistent, but not objected to, “2C:14-3(a)(6)” can be used as a reference for
the conduct proscribed in § 2C:14-2(a)(6). See Ellis, 564 F.3d at 377–78 (error
is not plain where we must traverse a convoluted “decisional path” in order to
resolve a close legal question). Because the district court’s adopted facts from
the addendum cannot constitute the requisite “clear” or “obvious” error, the
conduct proscribed by § 2C:14-2(a)(6) can be used to narrow Monterola’s
§ 2C:14-3(a) conviction.
                                       B.
      Accordingly, having narrowed Monterola’s conviction to the conduct
proscribed by § 2C:14-2(a)(6), it must be determined whether that statute is a
match for Guideline § 2L1.2(b)(1)(A)(ii). See Teran-Salas, 767 F.3d at 458.
      At sentencing, Monterola did not discuss the applicability of § 2C:14-
2(a)(6). Instead, he relied on his state-court judgment, and contended § 2C:14-
3(a) incorporated conduct falling outside the definition of a “crime of violence”.
On the other hand, in describing the relevant six subsections of § 2C:14-2(a),
the Government recited the definition of subsection (a)(6); but, it did not
present any specific reasons why that subsection applied. Along that line, the
Government contended that any of the conduct enumerated in § 2C:14-2(a)(2)–
(7) would qualify as the requisite “crime of violence”. And, as discussed supra,
although the district court characterized the Government’s position as
“persuasive”, it did not state which subsection supported the enhancement.
Again, the district court’s interpretation or application of the Guidelines is
reviewed de novo. Cisneros-Gutierrez, 517 F.3d at 764.
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                                  No. 14-41161
      As presented above, § 2C:14-2(a)(6), when read in conjunction with
§ 2C:14-3(a), provides a defendant commits aggravated criminal sexual contact
if he “uses physical force or coercion and severe personal injury is sustained by
the victim”. N.J. Stat. Ann. § 2C:14-2(a)(6). And, Guideline § 2L1.2(b)(1)(A)(ii)
states, inter alia, that a previously-deported defendant is subject to a 16-level
enhancement for a prior conviction of a “crime of violence”.             U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The Guidelines define “crime of violence”, in relevant part,
as “any other offense under federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical force against the person
of another”. U.S.S.G. § 2L1.2, comment n.1(B)(iii) (“sexual abuse of a minor”
and “forcible sex offenses” can also qualify as a “crime of violence” and are
potentially relevant; however, as noted supra, we need not consider them).
      “Severe personal injury”, as used in § 2C:14-2(a)(6), is “severe bodily
injury, disfigurement, disease, incapacitating mental anguish or chronic pain”.
N.J. Stat. Ann. § 2C:14-1(f). “Incapacitating mental anguish” is defined as,
inter alia, “severe emotional distress or suffering which results in a temporary
or permanent inability of the victim to function in some significant aspect of
her life”. State v. Walker, 522 A.2d 1021, 1024 (N.J. Super. Ct. App. Div. 1987).
Therefore, reading the definitions together, it is possible for a victim to suffer
“severe personal injury” even in the absence of physical harm. Regardless, our
inquiry, framed in part by Monterola’s following assertions, focuses more on
the cause of the injury (physical force or coercion) than on the resulting injury.
                                        1.
      Monterola contends his conviction under § 2C:14-3(a) does not meet the
criteria of the above definition of “crime of violence” because the New Jersey
statute of which he was convicted does not require the use, threatened use, or
attempted use of physical force against another. As he did in district court, he
maintains a defendant can be convicted under that statute by touching himself
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                                  No. 14-41161
in a sexual manner in the view of a non-consenting observer. This assertion,
however, is predicated upon his belief that the statute of conviction cannot be
narrowed.    As held supra, Monterola’s conviction has been narrowed to
subsection (6) of § 2C:14-2(a), which requires the use of either physical force or
coercion. N.J. Stat. Ann. § 2C:14-2(a)(6). Because the Guidelines’ definition at
issue involves only the use of physical force, and not coercion, a review of the
phrase “coercion” under New Jersey law is instructive in determining whether
§ 2C:14-2(a)(6) incorporates conduct falling outside the definition of “crime of
violence”.
      In State v. Lee, a defendant was charged with criminal sexual contact
under a statute similar to § 2C:14-3(a). 9 A.3d 190, 191 (N.J. Super. Ct. App.
Div. 2010). That similar statute, § 2C:14-3(b), incorporated the element of
physical force or coercion. Id. at 191–92. The defendant’s charge stemmed
from an incident where he exposed his genitals to a victim in an elevator and
began touching himself. Id. at 191. The state court held that, if a defendant’s
sexual contact was only with himself, the conviction required a finding of
physical force or coercion. Id. at 194–95.
      Although “coercion” can include threats of physical force, it also includes,
inter alia, threats to accuse another of an offense, expose secrets, or perform
any act in order to substantially harm another’s reputation, health, safety, or
relationships. N.J. Stat. Ann. §§ 2C:14-1(j), 2C:13-5(a)(1)–(7). Thus, even
when Monterola’s § 2C:14-3(a) conviction is narrowed to § 2C:14-2(a)(6), it
nonetheless includes actions falling outside “the use, attempted use, or
threatened use of physical force”, as required by Guideline § 2L1.2 comment
n.1(b)(iii). This, however, does not end our inquiry.
                                        2.
      Focusing on the minimum conduct criminalized “is not an invitation to
apply ‘legal imagination’ to the state offense; there must be ‘a realistic
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                                  No. 14-41161
probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime’”. Teran-Salas,
767 F.3d at 460 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013)).
This approach is partially rooted in common sense. Id. In order to show such
realistic probability, a defendant must, at a minimum, point to circumstances
either in his own case, or in another case where a state court applied the
statute in the manner he asserts. Id.; see also United States v. Carrasco-
Tercero, 745 F.3d 192, 197–98 (5th Cir. 2014) (noting “[t]heoretical applications
of a statute to conduct that would not constitute a crime of violence do not
demonstrate that the statutory offense is categorically not a crime of violence”).
Put another way, although we do not consider a defendant’s conduct in
determining whether an enhancement applies under the categorical approach,
Monterola must nevertheless point to conduct, either his or another’s, to show
the statute can be applied as he contends.
      Although Monterola highlights the use of the word “coercion” in the
statute, he does not maintain the facts forming the basis of his state-court
conviction show a “realistic probability” that a defendant can violate § 2C:14-
2(a)(6) in that manner. See Teran-Salas, 767 F.3d at 460. Similarly, he cites
no authority in support of his position. Moreover, a review of New Jersey
precedent sheds no light on the issue. Theoretically, it may be possible to
convict a defendant in the manner Monterola describes. But, as discussed,
mere theoretical possibility does not equate to realistic probability. Id.
      Because Monterola fails to show a realistic probability the statute could
be applied in the manner he advances, his § 2C:14-3(a) conviction, by
narrowing it to § 2C:14-2(a)(6), qualifies as a “crime of violence” under the
Guidelines. Accordingly, his 16-level enhancement was proper.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.
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                                  No. 14-41161
EDWARD C. PRADO, Circuit Judge, specially concurring:
      While I acknowledge that our rule prohibiting plain error review of
mistaken factual findings from United States v. Lopez, 923 F.3d 47, 50 (5th Cir.
1991) (per curiam), controls in this case, I write separately to restate my
opposition to this Court’s continued use of an inconsistently applied rule that
I believe runs afoul of Federal Rule of Criminal Procedure 52(b) and Supreme
Court precedent. See United States v. Carlton, 593 F. App’x 346, 349 nn.1–2
(5th Cir. 2014) (per curiam) (Prado, J., concurring), cert. denied 135 S. Ct. 2399
(2015); United States v. Claiborne, 676 F.3d 434, 440–42 (5th Cir. 2012) (Prado,
J., concurring). As I have noted previously, the Lopez rule places our case law
out of step with all other circuits and leads to unjust results. Carlton, 593 F.
App’x at 349–51 (Prado, J., concurring); Claiborne, 676 F.3d at 442–44 (Prado,
J., concurring). In denying a petition for certiorari on this very issue, Justice
Sotomayor articulated the problem with our continued use of the Lopez rule
and called on this Court to reevaluate our precedent. See Carlton, 135 S. Ct. at
2399–401 (Sotomayor, J., statement respecting the denial of certiorari) (“Given
its inconsistency with the governing text and longstanding precedent, it is little
wonder that no other court of appeals has adopted the per se rule outlined by
the Fifth Circuit in Lopez. . . . I hope the Fifth Circuit will . . . rethink its
approach to plain-error review.”). While I leave open the question of whether
application of Lopez leads to an unjust result in the instant suit, it is my hope
that, in time, this Court will agree that the Lopez rule should be abandoned.




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