     Case: 15-41008   Document: 00513585567        Page: 1   Date Filed: 07/11/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 15-41008                            FILED
                                                                        July 11, 2016

UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
                                                                            Clerk

             Plaintiff - Appellee

v.

TOMAS PUGA-YANEZ, also known as Thomas Puga,

             Defendant - Appellant




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


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:
      Tomas Puga-Yanez (“Puga-Yanez”) appeals his sentence. Puga-Yanez
contends that the district court committed reversible error by applying a
sixteen-level sentencing enhancement based on his prior conviction of child
molestation. For the reasons that follow, we AFFIRM Puga-Yanez’s sentence.
                                         I.
      Puga-Yanez, without a plea agreement, pled guilty to being an alien who
knowingly and unlawfully entered and was found in the United States
following deportation, in violation of 8 U.S.C. § 1326(a) and (b).
      His presentence report (“PSR”) recommended, in part, a sixteen-level
sentencing enhancement under § 2L1.2(b)(1)(A)(ii) for having been previously
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                                       No. 15-41008
deported after a conviction for a “crime of violence,” based on a 2005 Georgia
felony conviction for child molestation. Including the enhancement, Puga-
Yanez’s total calculated offense level was 21 (with criminal history category of
III), which resulted in an advisory guideline range of 46 to 57 months. 1
       Puga-Yanez filed a written objection to the PSR, arguing that the district
court erred by determining that his prior conviction qualified as an
enumerated offense (“sexual abuse of a minor”) under § 2L1.2(b)(1)(A)(ii),
because the Georgia statute under which he was convicted, Ga. Code Ann. § 16-
6-4(a), was “broader than the contemporary[,] generic meaning of sexual abuse
of a minor.” Consequently, Puga-Yanez argued that § 16-6-4(a) “proscribe[d]
immoral or indecent acts committed in front of a minor [and] include[d] many
things that fall outside the umbrella of sexual abuse of a minor.” Thus, Puga-
Yanez argued, the district court erred in applying the sixteen-level “crime of
violence” enhancement to his sentence. 2 The district court overruled Puga-
Yanez’s objections and sentenced him to 48 months of imprisonment.
       Puga-Yanez appealed his sentence to this Court, arguing that the district
court erred by applying the “crime of violence” enhancement—based on its
determination that Puga-Yanez’s 2005 conviction for child molestation under
§ 16-6-4(a) constituted the “sexual abuse of a minor” under § 2L1.2.
                                             II.
       “Where a defendant preserves error by objecting at sentencing, we
review the sentencing court’s factual findings for clear error and its



       1 Puga-Yanez was sentenced under the 2014 United States Sentencing Guidelines.
       2 At his sentencing hearing, Puga-Yanez also argued that our prior opinion in United
States v. Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011), in which we interpreted § 16-6-4(a),
was not dispositive because the defendant in that case made no attempt to support his
contention that the statute did not qualify as “sexual abuse of a minor.” Puga-Yanez argued,
therefore, that the panel in Olalde-Hernandez was not squarely presented with the issues he
raised.

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                                       No. 15-41008
interpretation or application of the Sentencing Guidelines de novo.” United
States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). Furthermore,
under this standard, we “review de novo whether a prior conviction qualifies
as a crime of violence within the meaning of the Guidelines.” United States v.
Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).
                                             III.
       As we have said, Puga-Yanez argues that the district court erred by
enhancing his sentence because the Georgia child molestation statute
proscribes conduct that is broader than conduct proscribed by “sexual abuse of
a minor” under the Guidelines.             Accordingly, Puga-Yanez contends that
because the Georgia statute is broader, categorically, than § 2L1.2(b)(1)(A)(ii),
enhancement under § 2L1.2(b)(1)(A)(ii) should not apply to his sentence. 3
       We have addressed the identical Georgia statute in United States v.
Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011), and held that it reflects the
generic crime of “sexual abuse of a minor” and thus constitutes a crime of
violence under the Guidelines. Puga-Yanez, however, offers two principal
arguments to support his claim. First, Puga-Yanez contends that because he
presents more detailed arguments than those presented to the panel in Olalde-
Hernandez, Olalde-Hernandez is not binding precedent for this appeal. 4
Second, Puga-Yanez contends that Olalde-Hernandez has been superseded by




       3  As a preliminary matter, under our case law, Puga-Yanez, convicted of illegal
reentry, would be subject to a sixteen-level sentencing enhancement under the Guidelines if
convicted of a “crime of violence” prior to his original deportation. See Rodriguez, 711 F.3d
at 548 (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)).
       4 See Thomas v. Texas Dep’t of Criminal Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002)

(“Where an opinion fails to address a question squarely, we will not treat it as binding
precedent.”) (citation omitted).
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                                       No. 15-41008
intervening case law from the appellate courts of Georgia and should be
revisited, citing Clemens v. State, 733 S.E.2d 67 (Ga. Ct. App. 2012). 5
                                              A.
       Turning to his first argument, Puga-Yanez contends that this appeal is
not controlled by our precedent in Olalde-Hernandez because the appellant in
that case did not specifically argue that the conduct proscribed by § 16-6-4(a)
failed to satisfy the three elements we have required for the “sexual abuse of a
minor” under § 2L1.2(b)(1)(A)(ii).                We take this point as true; but,
notwithstanding this argument, in Olalde-Hernandez we nevertheless
analyzed the conduct at issue and determined that it satisfied, entirely, the
requirements of § 2L1.2(b)(1)(A)(ii). See Olalde-Hernandez, 630 F.3d at 373–
75 and n.1. In short, we addressed the exact argument that Puga-Yanez makes
before us, and denied the relief he seeks in this appeal.
       Consequently, Puga-Yanez cannot avoid the precedential effect of
Olalde-Hernandez by presenting a more detailed argument than the
unsuccessful one presented in an otherwise identical challenge.
                                              B.
       Turning to his second argument, Puga-Yanez contends that Olalde-
Hernandez should be revisited. He argues that the scope of Ga. Code Ann.
§ 16-6-4(a) has evolved since Olalde-Hernandez, and the statute now has been


       5 Puga-Yanez also argues that Olalde-Hernandez was wrongly decided at the time the
opinion was issued, based on an erroneous interpretation of Georgia case law. Under our
precedent, however, this argument is meritless. See, e.g., Robinson v. J & K Admin. Mgmt.
Servs., Inc., 817 F.3d 193, 197 (5th Cir. 2016) (“It is a well-settled Fifth Circuit rule of
orderliness that one panel of our court may not overturn another panel’s decision, absent an
intervening change in the law, such as by a statutory amendment, or the Supreme Court, or
our en banc court. Indeed, even if a panel’s interpretation of the law appears flawed, the rule
of orderliness prevents a subsequent panel from declaring it void.”) (citation omitted);
Lozovyy v. Kurtz, 813 F.3d 576, 580 (5th Cir. 2015) (“‘To the extent that a prior panel of this
Circuit has ruled on [a state law] issue and has not been superceded [sic] by either [state]
case law or a change in statutory authority,’ we are also ‘bound by the prior decisions of this
Circuit as to the meaning of [state] law.’”) (citation omitted).
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                                       No. 15-41008
interpreted by Georgia courts to have a broader meaning than the generic
understanding of the crime reflected in the Guidelines.
       To determine the merits of this argument, we first turn to our definition
of the “sexual abuse of a minor” under the Guidelines.                    As we noted in
Rodriguez, the meaning of “sexual abuse of a minor” is unclear from the plain
language of § 2L1.2; furthermore, it is also not defined at common law.
Rodriguez, 711 F.3d at 558–59. Thus, we derive the meaning of “sexual abuse
of a minor” from its “generic, contemporary meaning,” i.e., “the common usage
of [that term] as stated in legal and other well-accepted dictionaries.” Id. at
559. And, when determining whether conduct criminalized under a state
statute qualifies as the “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii), we
focus on three components: (1) whether the conduct involved a minor victim;
(2) whether the conduct was “sexual” in nature; and (3) whether the conduct
was “abusive.” See, e.g., United States v. Najera-Najera, 519 F.3d 509, 511 (5th
Cir. 2008) (citation omitted). 6
       Then, we “look to the elements of the state statute of conviction and
evaluate whether those elements comport with the generic meaning of the
enumerated offense category.”           Rodriguez, 711 F.3d at 552–53.             Here, for
example, we juxtapose the elements of Ga. Code Ann. § 16-6-4(a) and the
generic meaning of “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii). 7 If we



       6  For the purposes of this appeal Puga-Yanez challenges only the third prong—
whether the conduct was abusive. Puga-Yanez, however, also argues, parenthetically, that
because § 16-6-4(a) applies only to victims under age 16, and thus has no age differential
requirement, it is categorically broader than the generic definition of “sexual abuse of a
minor,” which requires the victim to be under the age of 16 and that there be at least a four-
year age differential between the perpetrator and the victim. Puga-Yanez concedes, however,
that this argument is foreclosed by our en banc court’s opinion in Rodriguez, 711 F.3d at 562
n.28.
       7 We interpret § 2L1.2 as a matter of federal case law, and then, of course, look to the

decisions of Georgia courts that have interpreted § 16-6-4(a). See United States v. Martinez-
Flores, 720 F.3d 293, 297 (5th Cir. 2013) (“Although it is a question of federal law whether
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                                       No. 15-41008
find that § 16-6-4(a) “encompasses prohibited behavior that is not within the
plain, ordinary meaning of the enumerated offense, [then] the conviction is not
a   crime    of   violence    as    matter     of   law,”   and    enhancement        under
§ 2L1.2(b)(1)(A)(ii) would be precluded. United States v. Hernandez-Rodriguez,
788 F.3d 193, 196 (5th Cir. 2015) (citation omitted).
       As noted above, we recently engaged in this analysis in Olalde-
Hernandez and found that § 16-6-4(a) and the generic crime of “sexual abuse
of a minor” under § 2L1.2(b)(1)(A)(ii) are compatible. We held that a conviction
under § 16-6-4(a) qualifies as a crime of violence under the Guidelines, because
the conduct prohibited by § 16-6-4(a) “involves taking undue or unfair
advantage of the minor.” Olalde-Hernandez, 630 F.3d at 375 (quoting United
States v. Izaguirre-Flores, 405 F.3d 270, 275–76 (5th Cir. 2005) (holding that
“[t]aking indecent liberties with a child to gratify one’s sexual desire
constitutes ‘sexual abuse of a minor’ because it involves taking undue or unfair
advantage of the minor.”) (emphasis added) (citations omitted).
       Thus, for Puga-Yanez to prevail, he must identify post-Olalde-
Hernandez case law demonstrating that Georgia courts have extended the
reach of § 16-6-4(a) to criminalize conduct that is not proscribed under the
generic meaning of “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii). 8
       To meet his burden, Puga-Yanez points to Clemens v. State, 733 S.E.2d
67 (Ga. Ct. App. 2012). Puga-Yanez argues that Clemens holds that § 16-6-4(a)
is violated even in circumstances in which the minor is “completely unaware
of the sexually motivated act, the actor’s sexual purpose, and the actor’s



an offense constitutes a crime of violence under § 2L1.2, ‘we look to state law to determine
[the offense’s] nature and whether its violation is a crime of violence under federal law.’”).
        8 See, e.g., Hernandez-Rodriguez, 788 F.3d at 196 (stating that, if § 16-6-4(a)

“encompasses prohibited behavior that is not within the plain, ordinary meaning of [“sexual
abuse of a minor, then] the conviction is not a crime of violence as matter of law”) (citation
omitted).
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                                       No. 15-41008
presence.”     Puga-Yanez argues that under Clemens, § 16-6-4(a) reaches
conduct that need not result in psychological or physical harm to a minor; that
is, it extends beyond the generic, contemporary meaning of the “sexual abuse
of a minor” under § 2L1.2(b)(1)(A)(ii) and our case law, which we have
referenced above. We think, however, Puga-Yanez reads Clemens too broadly
and our case law too narrowly.
       Specifically, the defendant in Clemens was found to have been
masturbating, naked and kneeling, while straddling a six-year-old child, “who
was not wearing underwear[,] had oil on her body,” and was asleep in her twin-
size bed. See Clemens, 733 S.E.2d at 70–71. Moreover, these acts were seen
by the child’s aunt as they occurred in plain sight in a well-lit room. Id. at 71.
The Georgia Court of Appeals held that the defendant’s conduct constituted
the sexual molestation of a child under § 16-6-4(a) because it occurred in the
child’s presence. 9 Id.
       And, as we have previously held, “[g]ratifying or arousing one’s sexual
desires in the actual or constructive presence of a child” qualifies as the “sexual
abuse of a minor” under § 2L1.2(b)(1)(A)(ii) of the Guidelines. See Izaguirre-
Flores, 405 F.3d at 275. Puga-Yanez correctly points out that we have noted
whether a minor suffered physical or psychological harm as a result of the
defendant’s abuse in past cases. See, e.g., Izaguirre-Flores, 405 F.3d at 275–
76. However, we have not, as Puga-Yanez suggests, held that a minor suffering
harm is an element of the generic offense of “sexual abuse of a minor.” “Indeed,




       9 See also Prophitt v. State, 784 S.E.2d 103, 106 (Ga. Ct. App. 2016) (“Moreover, in []
Clemens . . . we held that even though the alleged victim was or may have been unaware of
the defendant’s inappropriate conduct, that fact did not take the defendant outside of the
child’s presence. Instead, we found that the presence element was satisfied because the
evidence showed that the defendant was aware of the child’s physical proximity to him and
proceeded to engage in the inappropriate conduct either in spite of or because of the child’s
presence.”) (emphasis added) (citing Clemens, 733 S.E.2d at 71).
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                                         No. 15-41008
this court has established a per se rule that gratifying or arousing one’s sexual
desires in the presence of a child is abusive because it involves taking undue
or unfair advantage of the minor.” United States v. Cortez-Cortez, 770 F.3d
355, 358 (5th Cir. 2014). Thus, harm to the minor is not an element of the
generic crime of “sexual abuse of a minor,” even though, as we have previously
noted, the minor often suffers either physical or psychological harm as result
of the defendant’s conduct. 10
       We therefore reject Puga-Yanez’s argument that the abhorrent conduct
of the defendant in Clemens, with the presence of the child as the object of his
gratification, falls outside what we have considered to be the “sexual abuse of
a child” under the Guidelines. 11              Consequently, Puga-Yanez’s categorical
challenge fails.
       Thus, we hold that Clemens does not prohibit conduct that is otherwise
permitted under our interpretation of § 2L1.2, nor does it alter our reading of
Ga. Code Ann. § 16-6-4(a) or require us to reconsider our holding in Olalde-
Hernandez.




       10    The absence of “harm to the minor” as an element of the generic crime is consistent
with the generic definitions of “sexual abuse of a minor” used by other circuits that this court
has previously cited with approval. For example, neither the Fourth Circuit nor Eleventh
Circuit requires that the minor be aware of the abuse, much less that the minor suffer harm.
See, e.g., United States v. Perez-Perez, 737 F.3d 950, 954 (4th Cir. 2013) (“[O]ur definition of
the Guideline crime . . . [does not] require[] . . . the victim’s awareness or knowledge of the
defendant’s presence.”); United States v. Ramirez-Garcia, 646 F.3d 778, 782 (11th Cir. 2011)
(“[Because] ‘[m]isuse’ or ‘maltreatment’ are expansive words that include many different acts
. . . [the generic] definition does not limit ‘sexual abuse of a minor’ to instances . . . where the
minor is aware of the abuse, or where the perpetrator makes contact with the minor.”).
          11 See, e.g., United States v. Balderas-Rubio, 499 F.3d 470, 473 (5th Cir. 2007) (“[T]he

phrase ‘sexual abuse of a minor’ is defined broadly to include not only those crimes that
involve sexual contact with a minor but also those crimes that involve sexual conduct in the
presence of a minor.”); cf. United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006)
(“If gratifying one’s sexual desires while in the presence of a minor constitutes sexual abuse
of a minor, then sexual assault of a child certainly constitutes sexual abuse of a minor.”)
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                                  No. 15-41008
                                       IV.
      In sum, we find that the district court’s application of § 2L1.2(b)(1)(A)(ii)
does not constitute error. The district court’s judgment imposing a sentence of
48 months based on § 2L1.2(b)(1)(A)(ii) is
                                                                     AFFIRMED.




                                        9
