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

                                                 FILED
                                                                         November 12, 2009
                                     No. 09-10081
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER MORALES-MORENO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 3:08-CR-228-ALL


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
       Javier Morales-Moreno pleaded guilty to one count of illegal reentry into
the United States. The district court sentenced him to 41 months in prison and
a two-year term of supervised release. On appeal, Morales-Moreno argues that
the district court erred by determining that his prior conviction for aggravated
sexual assault of a child, under T EX. P ENAL C ODE A NN. § 22.011(a)(2)(A), was a
crime of violence and by sentencing him pursuant to this determination. He
contends that this offense does not satisfy the definition of a crime of violence

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-10081

because it does not have as an element the use, attempted use, or threatened use
of force. He also argues that his offense of conviction does not qualify as an
enumerated offense of either sexual abuse of a minor or statutory rape because
Texas sets the age of consent at 17, higher than the majority of states and the
Model Penal Code. Morales-Moreno concedes that review is for plain error.
      In a case decided after Morales-Moreno filed his brief, this court has
rejected all of his arguments. See United States v. Castro-Guevarra, 575 F.3d
550, 552-53 (5th Cir. 2009). On de novo review, the court held that a conviction
under T EX. P ENAL C ODE A NN. § 22.011(a)(2)(A) was a crime of violence and would
support a 16-level increase in a defendant’s offense level. Castro-Guevarra,
575 F.3d at 552-53.
      AFFIRMED.




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