                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-2236
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Northern
                                          * District of Iowa.
Carlos Montenegro-Recinos,                *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: February 15, 2005
                                 Filed: October 4, 2005
                                  ___________

Before ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

ARNOLD, Circuit Judge.

       Carlos Montenegro-Recinos pleaded guilty to unlawfully entering the United
States after being removed from the country for an aggravated felony, see 8 U.S.C.
§ 1326(a), and was sentenced to fifty-eight months in prison. At sentencing, the
district court1 determined that his earlier state conviction for lewd and lascivious acts
upon a fourteen- or fifteen-year-old child, see Cal. Penal Code § 288 (c)(1), was a
"crime of violence," and the court therefore increased his offense level by sixteen.
See U.S.S.G. § 2L1.2(b)(1)(A)(ii). On appeal, Mr. Montenegro-Recinos maintains

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
that his prior conviction warranted only the four-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(D) for "any other felony." We affirm.

       We note initially that after Mr. Montenegro-Recinos was sentenced the
Supreme Court held that the Sentencing Reform Act was unconstitutional, and the
Court remedied that difficulty in the same opinion by making the sentencing
guidelines advisory rather than mandatory. United States v. Booker, 125 S. Ct. 738,
758, 764-65 (2005). A district court must nevertheless determine a defendant's
guideline sentencing range before passing sentence, and in an appeal from that
determination, "we continue to review the district court's findings of fact for clear
error and its interpretation and application of the Guidelines de novo." United States
v. May, 413 F.3d 841, 844 (8th Cir. 2005).

      Section 2L1.2(b)(1)(A)(ii) required that sixteen levels be added to
Mr. Montenegro-Recinos's offense level if he had previously been removed from the
country after "a conviction for a felony that is ... a crime of violence." Although
Mr. Montenegro-Recinos admits that he was convicted of a felony, he denies that the
felony was a crime of violence. In this context, a crime of violence includes "sexual
abuse of a minor," see U.S.S.G. § 2L1.2 comment. (n.1(B)(iii)), a term not defined by
the guidelines. We review de novo the district court's determination that
Mr. Montenegro-Recinos was subject to the sixteen-level increase because his
conviction was for "sexual abuse of a minor." See United States v. Rodriguez,
979 F.2d 138, 140 (8th Cir. 1992).

       Because the guidelines do not define "sexual abuse of a minor," we give the
term its " 'ordinary, contemporary, common meaning,' " see United States v. Parker,
267 F.3d 839, 847 (8th Cir. 2001) (quoting Perrin v. United States, 444 U.S. 37, 42
(1979)).      And we employ a categorical approach to determine whether
Mr. Montenegro-Recinos's crime is a crime of violence under the guidelines. Cf.
United States v. Kendrick, No. 04-3256, 2005 WL 2152307, at *4 (8th Cir. Sept. 8,

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2005); United States v. Frias-Trujillo, 9 F.3d 875, 877 (10th Cir. 1993). Under this
approach, the court generally looks to the statutory definition of an underlying felony,
rather than to the particular facts underlying the relevant conviction. See Taylor v.
United States, 495 U.S. 575, 600 (1990). But if the statute criminalizes both conduct
that would qualify a defendant for an enhancement, as well as conduct that would not
do so, the court may refer to the charging document, the terms of a plea agreement,
jury instructions, or comparable judicial records to determine the basis for a guilty
plea or verdict. See Shepard v. United States, 125 S. Ct. 1254, 1263 (2005); Taylor,
495 U.S. at 602; Kendrick, 2005 WL 2152307, at *4.

       The state statute under which Mr. Montenegro-Recinos was convicted prohibits
a person from "willfully and lewdly commit[ting] any lewd or lascivious act ... upon
or with the body, or any part or member thereof, of a child who is [14 or 15] years,
with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of that person or child," if the person committing the act "is at least 10 years
older than the child." See Cal. Penal Code § 288(a), (c)(1). Because, for reasons that
appear below, we think that all of the conduct criminalized by this statutory provision
comes within the meaning of "sexual abuse of a minor," we need not examine state
judicial records to determine the underlying facts of Mr. Montenegro-Recinos's crime.

       The conduct criminalized by § 288(c)(1) was of a sexual nature, and we believe
that the ten-year age difference between the victim and the perpetrator, combined
with the young age of the victim, establishes the abusive nature of that conduct. Cf.
United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). We have no
difficulty concluding, moreover, that a fourteen- or fifteen-year-old child has not
reached the age of majority, which is eighteen years of age in most states. See United
States v. Martinez-Carillo, 250 F.3d 1101, 1104-05 (7th Cir. 2001), cert. denied,
534 U.S. 927 (2001) (and cases cited therein). Although the term "minor" is not
specifically defined in § 2L1.2, other provisions of the sentencing guidelines,
including the guideline for "criminal sexual abuse," see U.S.S.G. § 2A3.1 comment.

                                          -3-
(n.1), repeatedly and consistently define a minor as a person under eighteen years of
age. See, e.g., U.S.S.G. §§ 2A3.4 comment. (n.1); 2G2.1 comment. (n.1); see also
18 U.S.C. § 2256(1). Thus Mr. Montenegro-Recinos was convicted of sexual abuse
of a minor.

       We note that Mr. Montenegro-Recinos, himself, "concedes" at one point in his
brief that the lascivious acts described in § 288 "probably constitute[] sexual abuse."
Cf. United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (per curiam);
United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992). But he then limits
that concession by arguing that whether the lascivious acts are abusive depends upon
the age of the minor involved, and that his conviction was not for sexual abuse
because § 288(c)(1) prohibits acts against only minors who are fourteen and fifteen
years of age.

       Mr. Montenegro-Recinos relies, in part, on United States v. Shannon, 110 F.3d
382, 386-89 (7th Cir. 1997) (en banc), which suggests that sex crimes with teenage
victims of a certain age (it does not set a specific age) should be distinguished from
those involving younger children because the older children are less vulnerable and
thus less likely to face a threat of physical injury from their assailants. See also
United States v. Thomas, 159 F.3d 296, 298-300 (7th Cir. 1998). But Shannon
interpreted a career-offender guideline that is not applicable here, U.S.S.G.
§ 4B1.2(1), which defines "crime of violence" as any crime that presents "a serious
risk of physical injury to another." Our touchstone in the present instance is not the
likelihood of physical injury, and we believe that a sex crime that places the victim
at serious risk of psychological and emotional injury only can come within the
meaning of sexual abuse. Cf. United States v. Renville, 779 F.2d 430, 437 (8th Cir.
1985).

      We do not mean to say, however, that Mr. Montenegro-Recinos's focus on the
age of a child who is acted upon in a sex crime is totally misplaced. If a criminal

                                         -4-
statute involves sexual acts upon or with the body of "a child who is 14 or 15 years"
and who may or may not have given consent, as does § 288(c), we might well
question whether the behavior described would amount to sexual abuse were it
engaged in by someone of a similar age. But we believe that the ten-year age
difference that § 288(c) requires between the child and the perpetrator places the
forbidden conduct squarely within the bounds of sexual abuse. Cf. Alas-Castro,
184 F.3d at 813; Thomas, 159 F.3d at 299.

      Having concluded that Mr. Montenegro-Recinos was previously convicted of
sexual abuse of a minor, which is a crime of violence under U.S.S.G. § 2L1.2
comment. (n.1(B)(iii)), we affirm the sentence imposed by the district court.
                       ______________________________




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