     Case: 14-40397      Document: 00512960490         Page: 1    Date Filed: 03/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 14-40397                                  FILED
                                  Summary Calendar                            March 6, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MAURICIO ISAIAS LUNA-SOTO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-1321


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Mauricio Isaias Luna-Soto (Luna) appeals his sentence following his
guilty plea to being illegally present in the United States following deportation.
He argues that the district court misapplied the Sentencing Guidelines when
it increased his offense level by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his conviction under Tenn. Code § 39-13-504(a)(4) for attempted
aggravated sexual battery of a child less than 13 years of age. He argues that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40397

the conviction was not for the enumerated crime of violence (COV) of “sexual
abuse of a minor,” or an “aggravated felony” under 8 U.S.C. § 1326(b)(2),
because (1) the statute of conviction lacked an age differential of at least four
years between the perpetrator and the victim, and (2) the offense punishes
innocuous conduct that does not constitute “abuse” within the meaning of
“sexual abuse of a minor.”
      As Luna concedes, because he raised no objection in the district court on
the basis of the legal arguments he now presents on appeal, this court’s review
is for plain error only. See United States v. Chavez-Hernandez, 671 F.3d 494,
497 (5th Cir. 2012). To demonstrate plain error, Luna must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. Id.
      The Sentencing Guidelines provide for a 16-level increase in a
defendant’s base offense level if he previously was removed after being
convicted of a COV.      § 2L1.2(b)(1)(A)(ii).   As defined in the Guidelines
commentary, COV includes various enumerated offenses, including “sexual
abuse of a minor.” § 2L1.2, comment. (n.1(B)(iii)). Thus, if a prior conviction
is determined to be the enumerated offense of “sexual abuse of a minor,” it is
“automatically” a COV. United States v. Romero-Rosales, 690 F.3d 409, 411
(5th Cir. 2012).
      Generally, courts employ a categorical approach to determine whether a
defendant’s prior conviction under state law qualifies as a COV under the
Guidelines. United States v. Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir.
2014), cert. denied, 2015 WL 133451 (Jan. 12, 2015). This court’s analysis is




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grounded in the elements of the statute of conviction rather than the
defendant’s underlying conduct. Elizondo-Hernandez, 755 F.3d at 781.
      This court has rejected the argument that any minimum age differential
is required for an offense to qualify as sexual abuse of a minor. See United
States v. Rodriguez, 711 F.3d 541, 562 n.28 (5th Cir.) (en banc), cert. denied,
134 S. Ct. 512 (2013). Luna acknowledges that his first argument is foreclosed
by Rodriguez; however, he raises it in order to preserve it for possible further
review.
      As to his second argument, Luna asserts that the Tennessee statute
under which he was convicted “could be violated simply by the act of a boy just
one day past his thirteenth birthday ‘petting’ his girlfriend just one day shy of
her thirteenth birthday.” He further argues that “the statute could be violated
by two 12-year-old children of the same or different sex.”
      If the Tennessee statute of conviction is broader than the generic
definition of “sexual abuse of a minor,” Luna’s prior conviction under that
statute cannot serve as a predicate for the COV enhancement. See United
States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2014). To make this
showing, Luna must show more than a “mere theoretical possibility” that the
statute of conviction criminalizes conduct that does not fall within the meaning
of “sexual abuse of a minor.” Id. He must show a “realistic probability” that
the State of Tennessee would apply the statute to conduct outside of the generic
definition, by pointing to at least his own or other cases in which the State did
in fact apply the statute in the manner he argues. Id.
      A substantially similar argument was presented in United States v.
Ramos-Sanchez, 483 F.3d 400, 403 (5th Cir. 2007), wherein the defendant
argued that because the Kansas solicitation of a minor statute did not require
the perpetrator to be an adult, it “could conceivably punish a 15-year old boy



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for sending an email to his 15-year-old girlfriend suggesting that they have
sex.” In support of his argument, the defendant cited a single case in which
the state convicted a 17-year-old boy under the relevant statute for having
consensual sex with a 15-year-old girl. Id. at 404. This court squarely rejected
the argument, concluding that the defendant had “failed to show a realistic
probability that Kansas would in fact punish conduct of the type he describes.”
Id. at 404.
      Luna provides even less support for his argument than the defendant in
Ramos-Sanchez. He does not cite a single case indicating that the State of
Tennessee would in fact punish conduct of the type he describes. He thus has
not made the showing required in order to establish the “realistic probability”
necessary to sustain his argument. See Garcia-Figueroa, 753 F.3d at 187.
      Luna has not shown that the district court made a clear or obvious error
in determining that his conviction was “sexual abuse of a minor,” and thus, a
COV, for purposes of § 2L1.2(b)(1)(A)(ii).      See Puckett, 556 U.S. at 135.
Moreover, because this court uses the same analysis to determine whether a
prior conviction constitutes sexual abuse of a minor for purposes of both § 2L1.2
and § 1326(b)(2), see United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th
Cir. 2008), Luna also has not shown plain error in the characterization of his
offense as involving an “aggravated felony” under § 1326(b). See Puckett, 556
U.S. at 135.
      AFFIRMED.




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