     Case: 14-40349      Document: 00512883845         Page: 1    Date Filed: 12/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40349
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 29, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee,

v.

JUAN ISABEL ROMERO-HERNANDEZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-823-1


Before SMITH, PRADO, and, OWEN, Circuit Judges.
PER CURIAM: *
       Juan Isabel Romero-Hernandez appeals the 57-month within-guidelines
sentence imposed following his conviction for illegal reentry after deportation.
He challenges the district court’s application of a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Specifically, Romero-Hernandez argues that his
prior Texas conviction for indecency with a child does not qualify as a crime of
violence because the Texas statute does not require an age differential of at


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40349     Document: 00512883845       Page: 2   Date Filed: 12/29/2014


                                  No. 14-40349

least four years between the victim and the perpetrator and permits a
conviction where the victim is under 17 years of age. These arguments are
foreclosed by our decision in United States v. Rodriguez, 711 F.3d 541, 560, 562
n.28 (5th Cir. 2013) (en banc), cert. denied, 134 S. Ct. 512 (2013).
      Romero-Hernandez argues that the Texas statute includes conduct that
does not constitute “abuse” within the generic meaning of “sexual abuse of a
minor” and is therefore not a crime of violence under § 2L1.2. He further
contends that the district court erred in treating the Texas conviction as an
aggravated felony for purposes of the enhanced penalty provision of 8 U.S.C.
§ 1326(b)(2). Because Romero-Hernandez raises these arguments for the first
time on appeal, we review for plain error.         See United States v. Chavez-
Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
      The state court documents show that Romero-Hernandez was convicted
of indecency with a child in violation of Texas Penal Code § 21.11. Indecency
with a child can be committed by contact, in violation of Texas Penal Code
§ 21.11(a)(1), or by exposure, in violation of Texas Penal Code § 21.11(a)(2). We
have previously held that both offenses constitute sexual abuse of a minor for
purposes of § 2L1.2(b)(1)(A)(ii). United States v. Najera-Najera, 519 F.3d 509,
512 & n.2 (5th Cir. 2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604-
05 (5th Cir. 2000). In the wake of our en banc decision in Rodriguez, 711 F.3d
at 548, 552, which created a new plain-meaning approach for offense categories
that were not defined at common law, it remains true that a violation of
§   21.11(a)   constitutes   sexual   abuse   of   a   minor    for    purposes   of
§ 2L1.2(b)(1)(A)(ii). United States v. Elizondo-Hernandez, 755 F.3d 779, 781-
82 (5th Cir. 2014) (per curiam). There is no plain error in the application of
the 16-level enhancement.      Nor did the district court err in treating his
conviction under § 21.11(a) as an aggravated felony for purposes of the



                                        2
    Case: 14-40349   Document: 00512883845    Page: 3   Date Filed: 12/29/2014


                               No. 14-40349

increased penalty provisions of § 1326(b). See Zavala-Sustaita, 214 F.3d at
603-07.
     The judgment of the district court is AFFIRMED.




                                    3
