     Case: 11-41182       Document: 00512053431         Page: 1     Date Filed: 11/14/2012




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

                                                                            FILED
                                                                        November 14, 2012

                                       No. 11-41182                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,


                                                  Plaintiff - Appellee

v.

JUAN FRANCISCO MARTINEZ-MUNOZ,


                                                  Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 7:11-cr-00826


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Juan Francisco Martinez-Munoz pleaded guilty to illegal reentry
after deportation in violation of 18 U.S.C. § 1326 and was sentenced to fifty-
seven months of imprisonment. On appeal, Martinez argues that the district
court erred when it applied a sixteen-level crime of violence enhancement based


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41182

on a prior Louisiana conviction for carnal knowledge of a juvenile. Because the
district court did not plainly err in finding Martinez’s prior conviction qualifies
as a crime of violence for sexual abuse of a minor, his sentence is affirmed.
                                               I.
       United States Sentencing Guideline § 2L1.2 provides for a sixteen-level
increase if the defendant has been previously convicted of a “crime of violence,”
which includes “sexual abuse of a minor.” U.S.S.G. § 2L1.2(b)(1)(A)(ii), cmt. n.1
(B)(iii). To determine whether a prior conviction qualifies as an enumerated
“crime of violence,” the court compares the “generic, contemporary meaning” of
the offense to the actual statute of conviction. See United States v. Murillo-Lopez,
444 F.3d 337, 339 (5th Cir. 2006). “When the statute of conviction encompasses
prohibited behavior that is not within the plain, ordinary meaning of the
enumerated offense, the conviction is not a crime of violence as a matter of law.”
United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir. 2006) (internal
quotation marks omitted).
                                              II.
       Martinez argues, referring especially to Estrada-Espinoza v. Mukasey, 546
F.3d 1147 (9th Cir. 2008), that the Louisiana statute prohibiting carnal
knowledge of a juvenile is broader than the generic offense of sexual abuse of a
minor because the generic offense requires a four-year age differential between
the victim and the perpetrator and the Louisiana statute requires only a two-
year age differential.1 Because Martinez did not raise this argument before the
district court, our review is for plain error. See United States v.
Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (finding that when a



       1
        Martinez also asserts on appeal that the Louisiana statute sets the age of sexual
consent at seventeen and is therefore broader then the generic age of sexual consent of sixteen.
Because he raises the argument only to preserve it for further review, we do not address this
issue.

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                                  No. 11-41182

defendant has “failed to make his objection to the guidelines calculation
sufficiently clear, the issue is considered forfeited”). To establish plain error,
Martinez must demonstrate that “(1) the district court erred, (2) the nature of
the error was plain or obvious, and (3) the defendant suffered substantial
prejudice.” United States v. Vargas-Soto, No. 11-10835, — F.3d —, 2012 WL
5240833, at *1 (5th Cir. Oct. 24, 2012) (citing Puckett v. United States, 556 U.S.
129, 135 (2009)). If Martinez makes this showing, this court’s discretion to
remedy the error should be exercised “‘only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings or ‘in order to
prevent a manifest miscarriage of justice.’” Id. (quoting Puckett, 556 U.S. at 135).
      Martinez’s 1997 conviction was for carnal knowledge of a juvenile, La. Rev.
Stat. Ann. § 14:80, which stated that:
            A.   Carnal knowledge of a juvenile is committed
            when:

            (1)   A person over the age of seventeen has sexual
            intercourse, with consent, with any person of the age of
            twelve years or more, but under the age of seventeen
            years, when there is an age difference of greater than
            two years between the two persons and the victim is not
            the spouse of the offender; or

            (2)   A person over the age of seventeen has anal or
            oral sexual intercourse, with consent, with a person of
            the age of twelve years or more, but under the age of
            seventeen years, when there is an age difference of
            greater than two years between the two persons.

            B.    Lack of knowledge of the juvenile’s age shall not
            be a defense. Emission is not necessary; and
            penetration, however slight, is sufficient to complete
            the crime.
LA. REV. STAT. ANN. § 14:80 (West Supp. 1996).




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                                  No. 11-41182

      The district court did not plainly err in applying the crime of violence
enhancement. Legally, no decision from our court has held that Louisiana's
two-year age differential affects whether the offense fits the ordinary meaning
of sexual abuse of a minor. See United States v. Rodriguez, No. 11-20881, —
F.3d —, 2012 WL 4513839, at *6 (5th Cir. Oct. 3, 2012) (Graves, J., concurring).
No plain error requiring our correction exists therefore.
      Martinez argues for the first time on appeal that there is no legal basis for
his guilty plea to carnal knowledge of a juvenile because the statute criminalizes
sexual conduct with a victim between the ages of twelve and seventeen and the
victim in this case was eleven years of age. As such, he contends that he could
not have pleaded guilty to the elements of the offense. He further argues that
because it was legally impossible to plead guilty to the relevant statute, this
court cannot consider the bill of information in determining whether his prior
conviction constitutes a crime of violence. His arguments are unavailing.
Martinez cannot collaterally challenge his conviction in a direct criminal appeal
on the grounds that the conviction was legally impossible. See Custis v. United
States, 511 U.S. 485, 495-97 (1994).
      The district court did not plainly err applying the crime of violence
sentencing enhancement. His sentence is AFFIRMED.




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