     Case: 16-51009     Document: 00514511726        Page: 1   Date Filed: 06/13/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                      No. 16-51009                     June 13, 2018
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


               Plaintiff - Appellee

v.

CANDIDO FRANCISCO HERNANDEZ-AVILA,

               Defendant - Appellant




                  Appeal from the United States District Court
                       for the Western District of Texas


Before WIENER, GRAVES, and HO, Circuit Judges.
PER CURIAM:
         We withdraw our prior opinion and substitute this new opinion in its
place.
                                 BACKGROUND
         Candido Hernandez-Avila pleaded guilty to illegal reentry under 8
U.S.C. § 1326. The presentence report (PSR) recommended a sixteen-level
enhancement based on Hernandez-Avila’s prior conviction for sexual assault
under Texas Penal Code § 22.011(a)(2), which the PSR determined to be a
“crime of violence” within the meaning of § 2L1.2(b)(1)(A)(ii) of the 2015
Sentencing Guidelines. Hernandez-Avila objected in writing and at the
sentencing hearing, arguing that a prior conviction under Texas Penal Code
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§ 22.011(a)(2) cannot be a “crime of violence” because that statute proscribes
sexual contact with “a person younger than 17 years of age,” TEX. PENAL CODE
§ 22.011(c)(1), while the enhancement requires the victim to be younger than
16 years of age. The district court overruled the objection, applied the
enhancement, and sentenced Hernandez-Avila to 57 months in prison—the
lowest possible sentence within the calculated Guidelines range.
                          STANDARD OF REVIEW
      On appeal, Hernandez-Avila renews the objection made before the
district court. Accordingly, our review is de novo. United States v. Piedra-
Morales, 843 F.3d 623, 624 (5th Cir. 2016) (“This court reviews a preserved
challenge to the district court’s application of the Sentencing Guidelines de
novo.”); United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011)
(“[T]his court considers de novo whether a defendant’s prior conviction
qualifies as a ‘crime of violence’ within the meaning of the Guidelines.”).
                                DISCUSSION
      The application notes to § 2L1.2 of the 2015 Sentencing Guidelines define
“crime of violence” to include “statutory rape” and “sexual abuse of a minor.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015). To determine whether Hernandez-
Avila’s prior conviction under Texas Penal Code § 22.011(a)(2) qualifies as
either of those offenses, we apply the “categorical approach,” which requires us
to “look to the elements of the offense enumerated . . . by the Guideline section
and compare those elements to the elements of the prior offense for which the
defendant was convicted.” United States v. Howell, 838 F.3d 489, 494 (5th Cir.
2016). “We do not consider the actual conduct of the defendant in committing
the offense.” Id.
      In Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the Supreme
Court held that, “in the context of statutory rape offenses that criminalize
sexual intercourse based solely on the age of the participants, the generic
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federal definition of sexual abuse of a minor requires that the victim be
younger than 16.” Id. at 1568. In light of Esquivel-Quintana, we conclude that
a prior conviction under Texas Penal Code § 22.011(a)(2) is not a “crime of
violence” within the meaning of § 2L1.2(b)(1)(A)(ii) of the 2015 Sentencing
Guidelines. Texas Penal Code § 22.011(a)(2) proscribes sexual conduct with a
“child”—defined as “a person younger than 17 years of age”—“regardless of
whether the person knows the age of the child at the time of the offense.” TEX.
PENAL CODE § 22.011(a)(2), (c)(1). Because § 22.011(a)(2) criminalizes sexual
intercourse with a victim under 17, rather than a victim under 16, and does so
“based solely on the age of the participants,” it is categorically overbroad under
Esquivel-Quintana. See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th
Cir. 2017) (applying Esquivel-Quintana and concluding that a conviction under
Tennessee’s statutory rape statute “does not qualify either as an aggravated
felony for purposes of 8 U.S.C. § 1326(b)(2) or as a crime of violence for purposes
of U.S.S.G. § 2L1.2(b)(1)(A)(ii)” because “the age of consent in Tennessee is
18”). Esquivel-Quintana abrogates our contrary conclusion in United States v.
Rodriguez, 711 F.3d 541, 560–63 (5th Cir. 2013) (en banc).
      The Supreme Court decided Esquivel-Quintana after briefing in this case
was completed. Consequently, we asked Hernandez-Avila and the Government
to each “address in a supplemental letter brief the applicability of Esquivel-
Quintana . . . to this appeal.” In its supplemental brief, the Government does
not dispute any aspect of the foregoing discussion of Esquivel-Quintana.
Instead, it asserts that “this [c]ourt need not determine that issue as it applies
to the instant case” and proffers a new, alternative argument for affirming
Hernandez-Avila’s sentence. Specifically, the Government now contends that
Hernandez-Avila’s sentence should be affirmed, notwithstanding Esquivel-
Quintana, because his prior conviction under Texas Penal Code § 22.011(a)(2)
constitutes a “crime of violence” under 18 U.S.C. § 16(b) and an “aggravated
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felony” under 8 U.S.C. § 1101(a)(43)(F). We shall assume, without deciding,
that the Government’s new argument is properly before us.
      We face an initial difficulty in deciphering the Government’s exact
argument. Nowhere in its supplemental brief does the Government actually
argue that Hernandez-Avila’s sentence is proper under the Sentencing
Guidelines. The Government suggests that if Hernandez-Avila’s prior
conviction is a “crime of violence” under 18 U.S.C. § 16(b), it is also an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), and that his 57-month
sentence therefore falls under the statutory maximum of 20 years’
imprisonment set by 8 U.S.C. § 1326(b)(2). The question on appeal, however,
is not whether Hernandez-Avila’s 57-month sentence exceeds the applicable
statutory maximum; the question is whether his sentence involves an
erroneous interpretation and application of the Sentencing Guidelines. Despite
the lack of clarity in the Government’s supplemental brief, we perceive two
possible contentions implicating the propriety of Hernandez-Avila’s sentence
under § 2L1.2 of the 2015 Sentencing Guidelines. Both are meritless.
      First. 18 U.S.C. § 16(b) defines the term “crime of violence” as “any other
offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” In United States v. Velazquez-Overa, 100
F.3d 418 (5th Cir. 1996), this court concluded that “indecency with a child
involving sexual contact, under Section 21.11(a)(1) of the Texas Penal Code, is
a crime of violence within the meaning of 18 U.S.C. [§] 16(b),” id. at 422,
“because it entails a substantial risk that physical force may be used against
the victim,” id. at 419. The court therefore held that a prior conviction under
Texas Penal Code § 21.11(a)(1) supported an “aggravated felony” enhancement
pursuant to § 2L1.2 of the 1995 Sentencing Guidelines. Id. at 422–23. Based
on Velazquez-Overa’s holding, the Government contends that Hernandez-
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Avila’s prior conviction under Texas Penal Code § 22.011(a)(2) is also a “crime
of violence” within the meaning of § 16(b). We need not decide that issue.
Unlike § 2L1.2 of the 1995 Sentencing Guidelines, which defined “aggravated
felony” to include “any crime of violence . . . as defined in 18 U.S.C. § 16,”
Velazquez-Overa, 100 F.3d at 420 (citation and internal quotation marks
omitted), § 2L1.2 of the 2015 Sentencing Guidelines does not incorporate
§ 16(b) by reference, and its definition of “crime of violence” does not contain
the “substantial risk” language found in § 16(b). See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) (2015). Thus, even if sexual assault under Texas Penal Code
§ 22.011(a)(2) is a “crime of violence” for purposes of § 16(b), it is not a “crime
of violence” under § 2L1.2 of the 2015 Sentencing Guidelines, and Hernandez-
Avila’s sentence cannot be affirmed on that basis. 1
       Second. 8 U.S.C. § 1101(a)(43)(F) defines the term “aggravated felony” to
include “a crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of imprisonment [is]
at least one year.” To the extent the Government relies upon this provision, we
construe it as arguing that if Hernandez-Avila’s prior conviction qualifies as
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), then it also qualifies
as an “aggravated felony” for purposes of the eight-level enhancement found at
§ 2L1.2(b)(1)(C) of the 2015 Sentencing Guidelines. See U.S.S.G. § 2L1.2 cmt.
n.3 (2015) (“For purposes of [U.S.S.G. § 2L1.2(b)(1)(C)], ‘aggravated felony’ has
the meaning given that term in . . . 8 U.S.C. § 1101(a)(43) . . . .”). We need not
decide whether Hernandez-Avila’s prior conviction under Texas Penal Code
§ 22.011(a)(2)    qualifies    as    an    “aggravated      felony”    under     8   U.S.C.
§ 1101(a)(43)(F) and § 2L1.2(b)(1)(C) of the 2015 Sentencing Guidelines. Even


       1 It is undisputed that Texas Penal Code § 22.011(a)(2) does not “ha[ve] as an element
the use, attempted use, or threatened use of physical force against the person of another.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015).
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if it does, the sixteen-level increase Hernandez-Avila received remains
erroneous, and his sentence cannot be affirmed.
                                  CONCLUSION
      Hernandez-Avila’s sentence is VACATED. This matter is REMANDED
to the district court for resentencing consistent with this opinion. “We direct
defense counsel to bring this case to the district court’s attention immediately
so that resentencing can occur expeditiously.” United States v. Cabrera, 478 F.
App’x 204, 209 (5th Cir. 2012).




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