     Case: 16-51009      Document: 00514490796         Page: 1    Date Filed: 05/29/2018




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

                                      No. 16-51009                             FILED
                                                                           May 29, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

CANDIDO FRANCISCO HERNANDEZ-AVILA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:15-CR-1131-1


Before WIENER, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Candido Francisco Hernandez-Avila pleaded guilty to illegal reentry
under 8 U.S.C. § 1326. The presentence report (PSR) recommended a sixteen-
level enhancement based on Hernandez-Avila’s prior conviction for sexual
assault under Texas Penal Code § 22.011(a)(2), which the PSR determined to
be a “crime of violence” within the meaning of § 2L1.2(b)(1)(A)(ii) of the 2015
Sentencing Guidelines. Hernandez-Avila objected in writing and at the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51009
sentencing hearing, arguing that a prior conviction under Texas Penal Code
§ 22.011(a)(2) cannot be a “crime of violence” because that statute proscribes
sexual contact with “a person younger than 17 years of age,” TEX. PENAL CODE
§ 22.011(c)(1), while the federal enhancement requires the victim to be younger
than 16 years of age. The district court overruled the objection, applied the
enhancement, and sentenced Hernandez-Avila to 57 months in prison—the
lowest possible sentence within the applicable sentencing range under the
Guidelines.
      Hernandez-Avila renews his objection on appeal. Our review is de novo.
United States v. Piedra-Morales, 843 F.3d 623, 624 (5th Cir. 2016) (“This court
reviews a preserved challenge to the district court’s application of the
Sentencing Guidelines de novo.”); United States v. Hernandez-Galvan, 632
F.3d 192, 196 (5th Cir. 2011) (“[T]his court considers de novo whether a
defendant’s prior conviction qualifies as a ‘crime of violence’ within the
meaning of the Guidelines.”).
      The application notes to § 2L1.2 of the 2015 Guidelines define “crime of
violence” to include “statutory rape” and “sexual abuse of a minor.” U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii) (2015). To determine whether Hernandez-Avila’s prior
conviction qualifies as either of these offenses, we apply the “categorical
approach,” which requires us to “look to the elements of the offense
enumerated . . . by the Guideline section and compare those elements to the
elements of the prior offense for which the defendant was convicted.” United
States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016). “We do not consider the
actual conduct of the defendant in committing the offense.” Id.
      After briefing in this case was completed, the Supreme Court decided
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), holding that “in the
context of statutory rape offenses that criminalize sexual intercourse based
solely on the age of the participants, the generic federal definition of sexual
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                                       No. 16-51009
abuse of a minor requires that the victim be younger than 16.” Id. at 1568. In
light of Esquivel-Quintana, we conclude that a prior conviction under Texas
Penal Code § 22.011(a)(2) is not a “crime of violence” within the meaning of
§ 2L1.2(b)(1)(A)(ii) of the 2015 Guidelines. Section 22.011(a)(2) proscribes
sexual conduct with a “child”—defined as “a person younger than 17 years of
age”—“regardless of whether the person knows the age of the child at the time
of the offense.” TEX. PENAL CODE § 22.011(a)(2), (c)(1). Because § 22.011(a)(2)
criminalizes sexual intercourse with a victim under 17, rather than a victim
under 16, it is categorically overbroad. See United States v. Ovalle-Garcia, 868
F.3d 313, 314 (5th Cir. 2017) (applying Esquivel-Quintana and holding that a
conviction under Tennessee’s statutory rape statute “does not qualify either as
an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) or as a crime of
violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii)” because “the age of
consent in Tennessee is 18”). Esquivel-Quintana abrogates our contrary
conclusion in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en
banc). 1
       Accordingly, we VACATE Hernandez-Avila’s sentence and REMAND for
resentencing consistent with this opinion. “We direct defense counsel to bring
this case to the district court’s attention immediately so that resentencing can




       1   We requested Hernandez-Avila and the Government to each “address in a
supplemental letter brief the applicability of Esquivel-Quintana . . . to this appeal.” In its
supplemental brief, the Government asserts that we “need not determine that issue as it
applies to the instant case” and that we should affirm Hernandez-Avila’s sentence because
his prior conviction is a “crime of violence” as defined in 18 U.S.C. § 16(b) and thus qualifies
as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). We will not consider this argument
because it is not within the scope of our request for additional briefing and has not been fully
and properly briefed on appeal. See Precision Builders, Inc. v. Olympic Grp., L.L.C., 642 F.
App’x 395, 400 (5th Cir. 2016) (recognizing our ability to affirm on any basis supported by
the record where “the parties fully briefed the issue . . . before us” (emphasis added)); United
States v. Vizcarra-Martinez, 66 F.3d 1006, 1011 (9th Cir. 1995).
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occur expeditiously.” United States v. Cabrera, 478 F. App’x 204, 209 (5th Cir.
2012).




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