     Case: 12-40810       Document: 00512289884         Page: 1     Date Filed: 06/27/2013




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

                                                                            FILED
                                                                           June 27, 2013
                                     No. 12-40810
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ESTEBAN RIVERA-PINA, also known as Esteban Pina-Rivera, also known as
Estaban Rivera, also known as Steve Pana, also known as Estaban Pina-Rivera,
also known as Esteban Rivera, also known as Esteban Steven Rivera, also
known as Estevan Rivera, also known as Steven Rivera, also known as Estepan
Rivera, also known as Steve Pana-Rivera, also known as Efrain Delgad-Rivera,
also known as Estavan Rivera, also known as Esepan Rivera, also known as
Estebal Rivera-Pina,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-213-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Esteban Rivera-Pina appeals his 96-month sentence for being illegally
present in the United States following deportation. He argues that the district
court erred by imposing a 16-level sentence enhancement pursuant to United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40810     Document: 00512289884         Page: 2   Date Filed: 06/27/2013

                                  No. 12-40810

States Sentencing Guidelines § 2L1.2 based upon his two prior convictions for
indecency with a child in violation of Texas Penal Code § 21.11. He contends
that § 21.11 does not satisfy the “generic, contemporary meaning” of either
“statutory rape” or “sexual abuse of a minor” because it criminalizes sexual
conduct with persons under the age of 17, and it criminalizes conduct where the
age differential is less than four years. He concedes that his arguments are
foreclosed by this court’s precedent, but he seeks to preserve them for further
review.   The Government has moved for summary affirmance or, in the
alternative, an extension of time to file a brief.
      Rivera-Pina’s arguments are foreclosed by our decision in United States
v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc). The defendant in Rodriguez
challenged a sentence enhancement under § 2L1.2(b)(1)(A)(ii) based on his
conviction for sexual assault of a child in violation of Texas Penal Code
§ 22.011(a)(2). Rodriguez, 711 F.3d at 544. We rejected his contention that
§ 22.011(a)(2) is broader than the “generic, contemporary meaning” of “sexual
abuse of a minor” because it prescribes a three-year instead of a four-year age
differential between the victim and the defendant. Id. at 562 n. 8. We also
rejected his challenge to the Texas statute’s definition of the term “child” as a
person under age 17. Id.
      Consequently, the motion for summary affirmance is GRANTED and the
motion for an extension of time is DENIED.
      AFFIRMED.




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