     Case: 15-41497   Document: 00513665637        Page: 1   Date Filed: 09/06/2016




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

                                    No. 15-41497                        FILED
                                                                 September 6, 2016
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

GELACIO LARA-MARTINEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
       Gelacio Lara-Martinez pleaded guilty to illegal reentry after being
previously deported. He appeals the district court’s determination that his
underlying Missouri conviction for sexual misconduct involving a child
qualified as a crime of violence, specifically sexual abuse of a minor, under the
Sentencing Guidelines.
                                I. Background
      On June 19, 2015, U.S. Border Patrol agents apprehended Lara-
Martinez in Brooks County, Texas. A records check revealed that Lara-
Martinez had been previously removed to Mexico in October 2010. He had no
legal right to be in the United States and was arrested. Lara-Martinez was
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                                  No. 15-41497
charged with and pleaded guilty to illegal reentry. His presentence report
(PSR) assigned a base level of eight, added sixteen levels for being previously
deported after committing a crime of violence, and subtracted three levels for
acceptance of responsibility, for a total offense level of twenty-one.
      The crime of violence enhancement was based on Lara-Martinez’s 2010
conviction for sexual misconduct involving a child in violation of Missouri
Statute section 566.083 (2008). The PSR determined that the conviction
qualified as an enumerated crime of violence, specifically, “sexual abuse of a
minor” under U.S.S.G. section 2L1.2 cmt. 1(B)(iii). Lara-Martinez objected to
the sixteen-level enhancement, claiming that his “prior conviction is not sexual
abuse of a minor, because the Missouri offense does not require that a minor
be involved at all.” Under sections 566.083, Lara-Martinez argued, a peace
officer pretending to be a child suffices for a conviction. Because “[t]he Fifth
Circuit has repeatedly interpreted the term ‘abuse’ in this context to include a
component of harm to a minor,” Lara-Martinez contended, Missouri’s statute
was “broader than the generic, contemporary meaning of sexual abuse of a
minor and does not constitute a crime of violence.” The district court overruled
his objection, and sentenced him to a below-Guidelines sentence of thirty-six
months in prison and thirty-six months of supervised release.
      Lara-Martinez timely appeals, again arguing that his state conviction
does not fall within the Guidelines’ definition of sexual abuse of a minor
because “[u]nder Missouri law, a person can be convicted of ‘sexual misconduct
involving a child’ even if the other person is a police officer masquerading as a
child.” After a review of the briefs, record, and applicable caselaw, we affirm.
                                 II. Discussion
      We review de novo whether a prior conviction qualifies as a crime of
violence under the Guidelines. United States v. Rodriguez, 711 F.3d 541, 548
(5th Cir. 2013) (en banc).
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      The Guidelines impose a sixteen-level enhancement if the defendant was
deported previously after committing a crime of violence.                  U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The definition of a “crime of violence” contains a list of
enumerated offenses, including “sexual abuse of a minor.” Id. § 2L1.2, cmt.
1(B)(iii). “When determining whether a prior conviction qualifies as a crime of
violence under the Guidelines, we [use] the categorical approach that the
Supreme Court first outlined in Taylor v. United States, 495 U.S. 575 (1990).”
Rodriguez, 711 F.3d at 549 (parallel citations omitted). Under this analysis, we
look to the elements of the statute of conviction rather than to the defendant’s
specific conduct. Id. “If the defendant was convicted under a statute that is
‘narrower than the generic crime’ or that mirrors the generic definition with
only ‘minor variations,’ the enhancement may stand.” United States v.
Hernandez-Rodriguez, 788 F.3d 193, 195–96 (5th Cir. 2015) (quoting United
States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011)). But if the relevant statute
“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.” Id. at 196 (quoting United States v. Esparza-Perez, 681 F.3d
228, 230 (5th Cir. 2012)). A defendant who argues that the relevant statute
encompasses conduct that is broader than an enumerated offense must show
that there is “a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition of
the crime.” United States v. Albornoz-Albornoz, 770 F.3d 1139, 1141 (5th Cir.
2014) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
      If the underlying statute contains disjunctive elements, as here, we
employ the modified categorical approach to determine which subpart of the
statute formed the basis of the conviction. See Duenas-Alvarez, 549 U.S. at
186–87; see also Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Under
the modified categorical approach, we consider “the statutory definition,
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charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16 (2005); see also United States v.
Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005).
      Lara-Martinez was convicted of sexual misconduct involving a child
under section 566.083 of the Missouri Statutes. When Lara-Martinez
committed his offense in 2008, section 566.083 read:
      1. A person commits the crime of sexual misconduct involving a
      child if the person:
         (1) Knowingly exposes his or her genitals to a child less than
         fifteen years of age under circumstances in which he or she
         knows that his or her conduct is likely to cause affront or alarm
         to the child;
         (2) Knowingly exposes his or her genitals to a child less than
         fifteen years of age for the purpose of arousing or gratifying the
         sexual desire of any person, including the child; or
         (3) Knowingly coerces or induces a child less than fifteen years
         of age to expose the child’s genitals for the purpose of arousing
         or gratifying the sexual desire of any person, including the
         child.
      2. The provisions of this section shall apply regardless of whether
      the person violates the section in person or via the Internet or
      other electronic means.
      3. It is not an affirmative defense to prosecution for a violation of
      this section that the other person was a peace officer
      masquerading as a minor.
      4. Sexual misconduct involving a child or attempted sexual
      misconduct involving a child is a class D felony unless [there are
      other circumstances not present here], in which case it is a class C
      felony.
Mo. Rev. Stat. § 566.083 (2008).
      Lara-Martinez was convicted of “knowingly induc[ing] O.V., a child less
than fourteen years of age, to expose O.V.’s genitals for the purpose of arousing
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the sexual desire of any person.” The modified categorical approach is
appropriate because this statute has “multiple alternative elements.” Mathis,
136 S. Ct. at 2249; see also United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006). A defendant violates subparts (1) or (2) by exposing him or
herself to the minor; a defendant violates subpart (3) by coercing or inducing
the minor to expose him or herself. Lara-Martinez’s conviction arose under
section 566.083.1(3), and he does not dispute that his offense involved sexual
abuse; rather, he argues that the Missouri statute did not require the presence
of a minor.
      For     “purposes   of   the   crime-of-violence    enhancement     under
§ 2L1.2(b)(1)(A)(ii), the meaning of ‘minor’ in ‘sexual abuse of a minor’ is a
person under the age of majority—which we conclude to be eighteen.”
Rodriguez, 711 F.3d at 544. Missouri defines a child for purposes of
section 566.083.1(3) as “less than fifteen years of age.” Lara-Martinez suggests,
however, that the offense can be committed against a peace officer
masquerading as a child. He argues that the statute does not require proof that
the victim was a child and, thus, does not fall within the generic definition of
sexual abuse of a minor. We disagree.
      The Supreme Court and this circuit require “a realistic probability, not
a theoretical possibility, that the State would apply its statute to conduct that
falls outside the generic definition of the crime.” Albornoz-Albornoz, 770 F.3d
at 1141 (quoting Duenas–Alvarez, 549 U.S. at 193). Lara-Martinez has not met
this showing. “At a minimum, the defendant must point to cases in which a
state court has applied the statute in a broader manner.” Id. In an attempt to
satisfy this requirement, Lara-Martinez points to State v. Hall, 321 S.W.3d 453
(Mo. Ct. App. 2010). In that case, a Missouri Court of Appeals looked at a crime
under subpart (2) of the same statute at issue here. Id. at 455. The defendant
in Hall argued that there was insufficient evidence “to show that he
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                                       No. 15-41497
‘knowingly’ exposed his genitals to a child . . . because he actually exposed his
genitals over the internet to a sheriff’s deputy posing as a child.” Id. at 454.
The court disagreed, concluding that “the legislature intended to say that it is
not a defense to the crime that the intended victim was a police officer
masquerading as a minor. . . . [T]he legislature intended to criminalize
exposure of a defendant’s genitals to a child or someone that the defendant
believed to be a child.” Id. at 455.
       Importantly, however, Hall dealt with a subpart (2) crime. Lara-
Martinez has not pointed to a single case where any court has applied the peace
officer affirmative defense provision to a subpart (3) charge, his charge of
conviction. These crimes differ: subpart (2) criminalizes an individual exposing
his/her own genitals to a minor, while subpart (3) criminalizes coercing or
inducing a minor to expose their genitals to someone else. In cases like Hall, a
defendant could easily expose his/her own genitals to a peace officer
masquerading as a minor, especially given that the statute explicitly applies
to conduct over the Internet and via other electronic means (via text message,
for example). However, it is much more difficult—if not impossible—to imagine
a case unfolding like Lara-Martinez urges us to consider: a defendant who was
convicted for coercing or inducing an of-age peace officer to actually expose
his/her genitals for a defendant’s arousal or gratification. 1
       And while Missouri does recognize the crime of attempted sexual
misconduct involving a child, the cases we have found are all subpart (1) or (2)
crimes where the defendant exposed his/her own genitals to a child (or a person
the defendant thought was a child). See, e.g., State v. Jeffrey, 400 S.W.3d 303,



       1 Missouri Statute section 566.083 is not an enticement crime. Subpart (2) requires
the defendant to expose his/her genitals to a minor, and subpart (3) requires the defendant
to “coerce[] or induce[] a child less than fifteen years of age to expose the child’s genitals.”
(emphasis added). Cf. State v. Mashek, 336 S.W.3d 478, 482 & n.4 (Mo. Ct. App. 2011).
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306–07 (Mo. 2013) (en banc); State v. Howell, 454 S.W.3d 386, 389 (Mo. Ct.
App. 2015); State v. Mauchenheimer, 342 S.W.3d 894, 895 (Mo. Ct. App. 2011).
This makes sense given that Missouri has a separate “enticement” crime. 2
Indeed, Missouri charges enticement or attempted enticement regularly, many
times in To Catch a Predator situations like Lara-Martinez identifies. See, e.g.,
State v. Craig, ---S.W.3d---, 2016 WL 2731575, at *3 (Mo. Ct. App. May 10,
2016); State v. Anderson, 467 S.W.3d 378, 380–81 (Mo. Ct. App. 2015); State v.
Doubenmier, 444 S.W.3d 921, 923 (Mo. Ct. App. 2014). Thus, Lara-Martinez
has not identified a case where Missouri charged a defendant with attempted
sexual misconduct involving a child under subpart (3) likely because
attempting to “coerce[] or induce[] a child less than fifteen years of age to
expose the child’s genitals” would fit the elements of enticement. Mo. Rev. Stat.
§ 566.083.1(3). Lara-Martinez has not shown a “realistic probability . . . that
[Missouri] would apply its statute to conduct that falls outside the generic
definition of [sexual abuse of a minor]” based on the peace officer provision.
Duenas-Alvarez, 549 U.S. at 193.
      The judgment of the district court is AFFIRMED.




      2   Mo. Rev. Stat. § 566.151.
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