            Case: 13-13563     Date Filed: 07/07/2014   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13563
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:12-cr-00072-JES-UAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

MANUEL HERRERA-LOPEZ,
a.k.a. Manuel Lopez Herrera,

                                                            Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                                (July 7, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 13-13563        Date Filed: 07/07/2014       Page: 2 of 5


       Manuel Herrera-Lopez appeals his 42-month sentence, imposed for illegal

re-entry by a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Herrera-Lopez challenges the district

court’s application of a 16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

for his illegal re-entry into the United States after being removed following a

sexual-battery conviction under Florida state law. Herrera-Lopez argues that,

because his offense under § 794.011(4)(e), Florida Statutes, did not require

physical force, it should not be classified as a “forcible sex offense[]” under

§ 2L1.2’s commentary, and, thus, it does not automatically qualify as a “crime of

violence.” He adds that interpreting “forcible sex offenses” to include all

non-consensual illicit conduct renders the commentary’s enumerated “statutory

rape” category superfluous. After review, 1 we affirm Herrera-Lopez’s sentence.

       The Sentencing Guidelines provide for a 16-level increase in the offense

level if a defendant previously was removed from the United States following a

conviction for a felony that is a “crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). “Crime of violence” is explicitly defined in § 2L1.2’s

Application Note 1(B)(iii) to include several enumerated offenses, including

federal, state, or local “forcible sex offenses.” § 2L1.2, comment. (n.1(B)(iii)). A

       1
         We review de novo a district court’s determination that a prior conviction qualifies as a
“crime of violence” under § 2L1.2. United States v. Contreras, 739 F.3d 592, 594 (11th Cir.
2014).

                                                2
               Case: 13-13563     Date Filed: 07/07/2014    Page: 3 of 5


parenthetical reference in the commentary immediately following that term

describes it as “(including where consent to the conduct is not given or is not

legally valid, such as where consent to the conduct is . . . incompetent . . . ).” Id.

In 2008, Amendment 722 to the Sentencing Guidelines clarified this language was

inserted to expressly include within the enumerated “forcible sex offenses”

category, contrary to some circuits’ holdings, sex offenses involving legally invalid

consent. U.S.S.G. App. C, Amendment 722, Reason for Amendment. The

Sentencing Commission further stated that “[t]he amendment makes clear that

forcible sex offenses, like all offenses enumerated in Application Note 1(B)(iii),

are always classified as ‘crimes of violence,’ regardless of whether the prior

offense expressly has as an element the use, attempted use, or threatened use of

physical force against the person of another[.]” Id. (quotation omitted). The

§ 2L1.2 commentary is “authoritative,” and we are bound by it unless it violates

federal law or is otherwise inconsistent with, or a plainly erroneous reading of, the

corresponding guideline provision. United States v. Contreras, 739 F.3d 592, 594

(11th Cir. 2014).

      We have held a felony conviction qualifies as a crime of violence under

§ 2L1.2 if the defendant was convicted under any offense enumerated in its

commentary. Id. at 595. The label a state attaches to an offense is not conclusive

as to whether it qualifies as an enumerated offense under § 2L1.2, and we must


                                           3
               Case: 13-13563    Date Filed: 07/07/2014    Page: 4 of 5


determine if the conviction offense is equivalent to the generic definition of the

crime enumerated in the commentary. United States v. Palomino Garcia, 606 F.3d

1317, 1330-31 (11th Cir. 2010). In doing so, we ordinarily employ a categorical

approach, and, to that end, evaluate only the judgment of conviction and the

conviction offense’s statutory definition. Id. at 1328.

      The Florida statutory offense listed in Herrera-Lopez’s judgment prohibits a

person from “commit[ting] sexual battery upon a person 12 years of age or older

without that person’s consent” under a variety of aggravating circumstances.

§ 794.011(4), Fla. Stat. The subsection listed in his judgment prohibits the

conduct, “when the victim is mentally defective and the offender has reason to

believe this or has actual knowledge of this fact.” Id. § 794.011(4)(e). “Mentally

defective” is defined as “a mental disease or defect which renders a person

temporarily or permanently incapable of appraising the nature of his or her

conduct.” Id. § 794.011(1)(b). “Sexual battery” is defined to include “union” with

the sexual organ of another. Id. § 794.011(1)(h). The Florida standard jury

instructions for sexual battery explicitly state that “union” means contact. See Fla.

Std. Jury Instr. (Crim.) 11.3.

      In Contreras, we interpreted § 794.011(5), which applies only to sexual

battery that “does not use physical force and violence likely to cause serious

personal injury.” § 794.011(5), Fla. Stat.; Contreras, 739 F.3d at 595. We


                                          4
              Case: 13-13563     Date Filed: 07/07/2014    Page: 5 of 5


concluded the offense qualified as a forcible sex offense under Application Note

1(B)(iii), and, thus, as a “crime of violence” under § 2L1.2. Contreras, 739 F.3d at

598. In so doing, we reasoned that any non-consensual sexual contact, including

unlawful “union,” was expressly included within Application Note 1(B)(iii)’s

“forcible sex offense[]” category by virtue of its parenthetical language describing

forcible sex offenses to include conduct “where consent . . . is not given.” Id.

at 594-98. The Florida Legislature has expressly indicated that § 794.011(5) is

“the least serious sexual battery offense” in the Florida sexual-battery statute and is

“necessarily included” in all offenses listed in § 794.011(4), including

§ 794.011(4)(e). § 794.005, Fla. Stat.

      The district court did not err in applying a 16-level increase pursuant to

§ 2L1.2(b)(1)(A)(ii). Section 2L1.2’s commentary explicitly describes enumerated

“forcible sex offenses” to include those like Herrera-Lopez’s, where consent to the

conduct was legally invalid. Because his conviction meets this express criterion, it

automatically qualifies as a “crime of violence.”

      AFFIRMED.




                                           5
