     Case: 09-11074 Document: 00511361610 Page: 1 Date Filed: 01/26/2011




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

                                                 FILED
                                                                          January 26, 2011
                                     No. 09-11074
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

CONSTANTINO BARRAGAN-DIAZ, also known as Ulices Barragan-Diaz,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:09-CR-26-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Constantino Barragan-Diaz appeals his within-Guidelines sentence of 96
months’ imprisonment, following his guilty-plea conviction for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326. Barragan contends: the
district court committed procedural error in calculating his advisory Guideline
sentencing range; and his sentence is unreasonable.
       Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), our court
engages in a bifurcated review of the sentence imposed by the district court.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11074

E.g., United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First,
we inquire whether the district court committed a “significant procedural error”,
such as miscalculating the advisory sentencing range. Id. at 752-53. Second, if
there is no such error, or the error is harmless, we review the substantive
reasonableness of the sentence. Id.
      As Barragan concedes, because he failed to object at sentencing regarding
the two issues raised here, review is only for plain error. E.g., Puckett v. United
States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007) (requiring objection to substantive unreasonableness of
sentence to preserve error). To show reversible plain error, defendant must
show a clear or obvious error that affects his substantial rights. Even if he does
so, our court retains discretion to correct such error and, generally, will do so
only if the plain error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. E.g., Puckett, 129 S. Ct. at 1429.
      Regarding the claimed procedural error, Barragan contends: the district
court plainly erred in determining his prior Florida conviction, for lewd and
lascivious conduct upon a minor, qualified as a crime of violence for purposes of
the 16-level enhancement under Guideline § 2L1.2(b)(1)(A)(ii). Because sexual
abuse of a minor is a specifically enumerated offense, see § 2L1.2 cmt. n.1(B)(iii),
a common-sense approach is used to determine whether a prior conviction
constitutes sexual abuse of a minor, as that term is understood in its “ordinary,
contemporary, [and] common” meaning, United States v. Izaguirre-Flores, 405
F.3d 270, 274 n.12 (5th Cir. 2005) (citation and quotation marks omitted). The
generic, contemporary meaning of sexual abuse of a minor involves three
elements, whether the conduct: (1) involves a minor; (2) is sexual; and (3) is
abusive. See United States v. Najera-Najera, 519 F.3d 509, 510-12 (5th Cir.
2008); see also     Izaguirre-Flores, 405     F.3d   at   275; United    States v.
Zavala-Sustaita, 214 F.3d 601, 604-08 (5th Cir. 2000). Sexual abuse of a minor
includes “those crimes that involve sexual conduct in the presence of a minor”.

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                                   No. 09-11074

United States v. Balderas-Rubio, 499 F.3d 470, 473 (5th Cir. 2007). And, the
Eleventh Circuit has determined that the 1987 Florida Statute § 800.04 qualifies
for purposes of § 2L1.2’s 16-level enhancement; the relevant language that
defendant “knowingly commits any lewd or lascivious act in the presence of any
child under the age of 16 years”, is in both the 1987 and 1994 versions of that
statute. See United States v. Padilla-Reyes, 247 F.3d 1158, 1161-64 (11th Cir.
2001); see also F LA. S TAT. A NN. § 800.04 (1994) Accordingly, error, if any, by the
district court is neither clear nor obvious. United States v. Dupre, 117 F.3d 810,
817 (5th Cir. 1997); see also United States v. Olano, 507 U.S. 725, 734 (1993)
(plain error only if clear under existing law). Because it was not necessary to
examine defendant’s charging documents in concluding the district court did not
plainly err, it is not necessary to address Barragan’s contentions on that point.
      Barragan also contends his 96-month sentence is substantively
unreasonable. He concedes he did not object to the unreasonableness of the
sentence, but maintains he was not required to do so, claiming it is our duty to
determine whether his sentence is reasonable. He recognizes, however, that this
contention is foreclosed in our circuit, Peltier, 505 F.3d at 391-92, and raises it
only for possible future review. Accordingly, we review only for plain error.
      A within-Guidelines sentence is presumed reasonable. See, e.g., United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).         Barragan, however,
contends this presumption should not apply because his sentence was based on
a modified Guideline that lacks empirical support. Our court has rejected the
assertion a sentence is unreasonable because of a subsequent revision to the
Guidelines.   United States v. Martin, 596 F.3d 284, 285-86 (5th Cir.), cert.
denied, 130 S. Ct. 3480 (2010). Moreover, the empirical-data contention is
foreclosed. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied,
130 S. Ct. 378 (2009). Defendant recognizes this contention is also foreclosed in
our circuit and raises it for possible future review.



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                                 No. 09-11074

      Last, Barragan contends his sentence was substantively unreasonable
because it is greater than necessary to accomplish the sentencing goals in 18
U.S.C. § 3553(a). He maintains his sentence failed to take into account: the
remoteness of his most serious offenses; he was attempting to leave the country
to visit his sick father; and he was in this country to work. The record reflects
the district court considered Barragan’s request and supporting reasons for a
sentence at the bottom of the Guideline sentencing range. Barragan, however,
has failed to establish his sentence was substantively unreasonable, much less
plainly so. See Puckett, 129 S. Ct. at 1428-29; Peltier, 505 F.3d at 391-92.
      AFFIRMED.




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