     Case: 11-41341       Document: 00512175430         Page: 1     Date Filed: 03/14/2013




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

                                                                            FILED
                                                                          March 14, 2013

                                       No. 11-41341                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

WILMER EDGARDO PERALTA-REYES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-914-1


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant Wilmer Edgardo Peralta-Reyes pled guilty to illegal reentry
under 8 U.S.C. § 1326(b)(2) following his removal subsequent to an aggravated
felony conviction. He was sentenced to 36 months’ imprisonment and a three-
year term of supervised release. On appeal, he challenges the district court’s
imposition of a 16-level enhancement under the United States Sentencing
Guidelines Manual § 2L1.2 (2010), arguing that his previous Colorado felony
conviction for attempted sexual assault was not a “crime of violence.” He also

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41341

argues that he should have been convicted under 8 U.S.C. § 1326(b)(1) rather
than Section 1326(b)(2) because his Colorado conviction does not constitute an
aggravated felony. We AFFIRM.
      Peralta-Reyes, a citizen of Honduras, illegally entered the United States
in 2005. In 2009, he was charged under Colorado law with kidnapping and
unlawful sexual contact. In 2010, Colorado prosecutors added charges for
attempted unlawful sexual contact and attempted sexual assault by overcoming
the victim’s will. On June 25, 2010, Peralta-Reyes pled guilty to one count of
attempted sexual assault in violation of Colorado Revised Statutes § 18-3-
402(1)(a) (2009). The other charges were dismissed. On May 5, 2011, Peralta-
Reyes was deported to Honduras.
      On June 29, 2011, Border patrol agents apprehended Peralta-Reyes near
Laredo, Texas. Peralta-Reyes pled guilty to being unlawfully present in the
United States under 8 U.S.C. § 1326.           The probation office prepared a
presentence investigation report (“PSR”) recommending a base-offense level of
8 for illegal reentry, see U.S.S.G. § 2L1.2(a), increased by 16 levels under Section
2L1.2(b)(1)(A)(ii) based on his prior conviction for a qualifying felony “crime of
violence” – his 2010 Colorado conviction for attempted sexual assault. This
recommendation produced a Guidelines range of 51-63 months’ imprisonment.
      Peralta-Reyes objected to the PSR’s 16-level “crime of violence”
enhancement. He argued his conviction for attempted sexual assault did not
qualify as a crime of violence under Section 2L1.2(b)(1)(A)(ii). Specifically,
Peralta-Reyes argued attempted sexual assault does not have to be by force but
can be by means of offering “something of value.” The district court rejected the
argument, holding that Peralta-Reyes’ prior conviction was a “crime of violence”
because it qualified as a “forcible sex offense.” Nonetheless, due to concerns that
extenuating circumstances may have existed regarding the attempted sexual



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                                  No. 11-41341

assault conviction, the court imposed a below Guidelines sentence of 36 months’
imprisonment.
                                  DISCUSSION
      Peralta-Reyes presents two issues on appeal. First, he argues the district
court erred when it concluded that his conviction for attempted sexual assault
was a crime of violence, which resulted in the use of the Section 2L1.2(b)(1)(A)(ii)
enhancement. Second, he argues that he should have been convicted under
Section 1326(b)(1) rather than Section 1326(b)(2) because his Colorado
conviction, although a felony, does not constitute an aggravated felony.
A.    Crime-of-Violence Enhancement
      Peralta-Reyes argues that his Colorado conviction for attempted sexual
assault does not constitute a forcible sex offense because the statute underlying
the offense does not necessarily involve coercion, but instead, may be violated if
the victim submits as the result of a bribe or bargain.
      This court reviews sentences for reasonableness in two steps. Gall v.
United States, 552 U.S. 38, 49-51 (2007). First, we ensure that the sentencing
court committed no significant procedural error, including improperly
calculating the Guidelines range. Id. at 51. If there is no procedural error, we
review the substantive reasonableness of the sentence under a deferential abuse-
of-discretion standard, taking into account the totality of the circumstances. Id.
The district court’s characterization of a prior offense as a crime of violence
within the meaning of the Guidelines is a question of law that this court reviews
de novo. United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011). “When
interpreting the Guidelines, the relevant Commentary in the Guidelines Manual
‘is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.’” Id. (quoting
Stinson v. United States, 508 U.S. 36, 38 (1993)).



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      Section 2L1.2(b)(1)(A)(ii) provides that a defendant shall receive a 16-level
increase if he was previously deported or remained in the United States
unlawfully after his conviction of a crime of violence. Among the offenses
specifically enumerated as crimes of violence in the Commentary are “forcible
sex offenses (including where consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is involuntary, incompetent, or
coerced).” § 2L1.2 cmt. n.1(B)(iii). An offense is a crime of violence if it “has
physical force as an element” or qualifies as an enumerated offense listed in the
Commentary. United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008)
(en banc).
      When determining whether a state conviction constitutes an enumerated
offense for purposes of a Section 2L1.2(b)(1)(A)(ii) enhancement, the conduct
underlying the particular offense and the label employed by the state’s criminal
code are irrelevant to the analysis. Diaz-Corado, 648 F.3d at 293. Instead, we
use a “common sense approach” to determine whether a violation of the
underlying statute constitutes the enumerated offense as that offense is
understood in its “ordinary, contemporary, [and] common meaning.” United
States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005). When necessary to
determine which provisions of a statute the defendant violated, a court may
examine documents such as the judgment of conviction. See Shephard v. United
States, 544 U.S. 13, 26 (2005).
      The Colorado judgment states that Peralta-Reyes was convicted of
violating Colorado Revised Statute Section 18-3-402(1)(a). The Colorado statute
provides: “Any actor who knowingly inflicts sexual intrusion or sexual
penetration on a victim commits sexual assault if . . . [he] causes submission of
the victim by means of sufficient consequence reasonably calculated to cause
submission against the victim’s will.” As mentioned above, the Guideline’s
Commentary specifies that “forcible sex offenses” include sex offenses “where

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                                      No. 11-41341

consent to the conduct is not given.” § 2L1.2 cmt. n.1(B)(iii). According to this
Commentary, the enumerated forcible sex offenses “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.” Diaz-Corado, 648 F.3d at 293 (quoting U.S.S.G. App. C,
amend. 722 (Nov. 2008)). Given that Peralta-Reyes’ conviction statutorily
requires “submission against the victim’s will,” it qualifies as an enumerated
forcible sex offense and is a crime of violence.
       Peralta-Reyes argues that despite the statutory language, a broader use
of the statute has been sustained by a Colorado Court of Appeals decision that
held a defendant violated Section 18-3-402(1)(a) by causing minor victims to
submit in exchange for promises of a favorable test grade and hunting trips.
Colorado v. Walker, No. 07CA1572, 2011 WL 724673, at *11 (Colo. App. Mar. 3,
2011). The Government contends that Walker is distinguishable because the
victims there were minors. We see no reason to explore the meaning of this
intermediate appellate court’s opinion.1 The statute’s requirement that the
sexual intrusion be “against the victim’s will” places the offense “squarely within
the Commentary’s definition of a forcible sex offense.” See Diaz-Corado, 648
F.2d at 293. Therefore, Peralta-Reyes’ conviction qualifies as a crime of violence.
B.     Conviction Under 8 U.S.C. § 1326(b)(2)
       Peralta-Reyes argues he should have been convicted under Section
1326(b)(1) rather than under Section 1326(b)(2) because his Section 18-3-
402(1)(a) Colorado conviction, although a felony, does not constitute an
aggravated felony. Peralta-Reyes failed to raise this claim in the district court.




       1
        The authoritative pronouncements of a state statute’s meaning come from that state’s
highest court, though an intermediate court’s interpretation will be examined for its ability
to persuade. Patrick v. Wal-Mart, Inc. – Store #155, 681 F.3d 614, 617-18 (5th Cir. 2012).

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Therefore, we review for plain error. United States v. Mondragon-Santiago, 564
F.3d 357, 368 (5th Cir. 2009).
      Under the plain error standard of review, Peralta-Reyes’ judgment will be
reformed only if he shows: “(1) error; (2) that is plain (clear or obvious); and (3)
that affects his substantial rights.” United States v. Rojas-Gutierrez, 510 F.3d
545, 548 (5th Cir. 2007). If he makes this showing, “the decision to correct the
forfeited error is then within this court’s sound discretion, which will not be
exercised unless the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. Peralta-Reyes concedes that, because he
cannot show that the error affected his substantial rights, resentencing is
precluded. See Mondragon-Santiago, 564 F.3d at 369. Nonetheless, he argues
the judgment must be reformed to reflect that he was convicted under Section
1326(b)(1).
      Section 1326(b)(2) provides that an alien “whose removal was subsequent
to a conviction for commission of an aggravated felony” shall be “imprisoned not
more than 20 years.” The term “aggravated felony,” in turn, is defined by 8
U.S.C. § 1101(a)(43), which contains numerous subsections. In particular,
subsection § 1101(a)(43)(F) provides that a conviction constitutes an aggravated
felony if the conviction results in a sentence of more than one year and meets the
definition of a “crime of violence” under 18 U.S.C. § 16. Section 16 defines “crime
of violence” as:
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or

      (b) any other offense that is a felony and that, by its nature, involves
      a substantial risk that physical force against the person or property
      of another may be used in the course of committing the offense.




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Attempting to commit such an offense is also an aggravated felony. 8 U.S.C. §
1101(a)(43)(U).
      To determine whether a conviction constitutes an aggravated felony,
“courts apply the categorical approach and look primarily to the text of the
statute violated.” Zaidi v. Ashcroft, 374 F.3d 357, 360 (5th Cir. 2004). This court
has not determined whether a conviction under Section 18-3-402(1)(a)
constitutes an aggravated felony or a crime of violence under Section
1101(a)(43)(F). Nevertheless, the district court’s determination that Peralta-
Reyes’ conviction for sexual assault “by means of sufficient consequence
reasonably calculated to cause submission against the victim’s will” was a crime
of violence was not plain error. Colo. Rev. Stat. § 18-3-402(1)(a). We have stated
that “the non-consent of the victim is the touchstone for determining whether a
given offense involves a substantial risk that physical force may be used in the
commission of the offense” in holding that an Oklahoma sexual-battery
conviction was a crime of violence under Section 1101(a)(43)(F). Zaidi, 374 F.3d
at 361 (quotation marks omitted). Here, non-consent of the victim is an element
of the crime in that it requires “submission against the victim’s will.” Colo. Rev.
Stat. § 18-3-402(1)(a).
      The district court did not commit plain error, and Peralta-Reyes’ judgment
need not be reformed.
      AFFIRMED.




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