     Case: 13-20570       Document: 00512836042         Page: 1     Date Filed: 11/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 13-20570                                FILED
                                   Summary Calendar                       November 13, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

VICENTE RIOS-HERNANDEZ, also known as Vicente Rios, also known as
Vicente Rios Hernandez, also known as Vicentie Rios-Hernandez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-215-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Vicente Rios-Hernandez pleaded guilty of being present illegally in the
United States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). Over
his objection, the district court applied a 16-level Sentencing Guideline
enhancement, pursuant to Guideline § 2L1.2(b)(1)(A)(ii) (“If the defendant
previously was deported, or unlawfully remained in the United States, after a



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 13-20570     Document: 00512836042      Page: 2    Date Filed: 11/13/2014


                                  No. 13-20570

crime of violence . . . increase by 16 levels . . . ”.). In that regard, the court
determined that Rios’ prior Texas conviction of indecency with a child under
Texas Penal Code Ann. § 21.11 (West 2009) (criminalizing, inter alia, engaging
in sexual contact with a child younger than 17 years of age) was a crime of
violence. Rios was sentenced to 60 months’ imprisonment.
      In contending that the court erred in applying the enhancement, Rios
claims: indecency with a child is not a crime of violence because Texas Penal
Code Ann. § 21.11 is broader in scope than the generic meaning of “sexual
abuse of a minor”, by including conduct that does not constitute “abuse” within
the meaning of “sexual abuse of a minor”. He also contends the court erred in
treating the statute as an aggravated felony for purposes of the enhanced-
penalty provision in 8 U.S.C. § 1326(b)(2). Finally, Rios claims: because his
prior conviction is an element of his illegal reentry offense that he contends
must be charged in the indictment, the district court erred in considering it
during sentencing. (Because each claim fails, we need not determine whether
plain-error review applies or the claims were not adequately briefed here.)
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s
characterization of a prior offense as a crime of violence is reviewed de novo.
United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005).




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                                   No. 13-20570

      Guideline § 2L1.2(b)(1)(A)(ii) requires a 16-level increase in a
defendant’s base-offense level if he previously was removed after being
convicted of a crime of violence. The Application Notes to the Guideline define
a crime of violence, in relevant part, as any specific enumerated offense,
including “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), statutory rape, [and] sexual abuse of a
minor . . . ”. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
      Generally, courts employ a categorical approach when classifying a prior
conviction for sentencing-enhancement purposes. Taylor v. United States, 495
U.S. 575, 602 (1990). Under Taylor’s categorical approach, “the analysis is
grounded in the elements of the statute of conviction rather than a defendant’s
specific conduct”. United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en
banc), cert. denied, 134 S. Ct. 512 (2013).           If a statute has disjunctive
subsections, this court may apply a modified categorical approach to ascertain
under which subsection defendant was convicted. United States v. Miranda-
Ortegon, 670 F.3d 661, 663 (5th Cir. 2012). Under that approach, a court may
review “the statutory definition, 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). If the statute of conviction cannot be narrowed, our court considers
“whether the least culpable act constituting a violation of that statute
constitutes” a crime of violence for purposes of Guideline § 2L1.2. United
States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (citations and
internal quotation marks omitted).
      Utilizing the state-court indictment and criminal judgment, for purposes
of the modified categorical approach, we conclude that Rios’ prior conviction



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                                  No. 13-20570

was for the offense of indecency with a minor by contact, a violation of Texas
Penal Code Ann. § 21.11(a)(1). Our court has previously held that the offense
defined in § 21.11(a)(1) constitutes sexual abuse of a minor for purposes of
Guideline § 2L1.2(b)(1)(A)(ii). United States v. Najera-Najera, 519 F.3d 509,
512 (5th Cir. 2008). Further, our en banc decision in Rodriguez, which created
a new plain-meaning approach for offense categories undefined at common
law, did not alter our prior conclusion that a violation of § 21.11(a)(1)
constitutes   sexual   abuse    of   a   minor   for   purposes    of   Guideline
§ 2L1.2(b)(1)(A)(ii). United States v. Elizondo-Hernandez, 755 F.3d 779, 781–
82 (5th Cir. 2014). In the light of the foregoing, Rios has not established error
in the imposition of the crime-of-violence enhancement.
      Rios’ other contentions are likewise without merit. His claim that
§ 21.11(a)(1) does not fit the generic contemporary definition of “sexual abuse
of a minor” because it is overly broad has been rejected by our court. See
Rodriguez, 711 F.3d at 548, 562 n.28. Additionally, his claim that the court
erred in treating his § 21.11(a)(1) conviction as an aggravated felony for
purposes of the increased-penalty provisions of § 1326(b) is foreclosed by our
precedent. See Elizondo-Hernandez, 755 F.3d at 782 (discussing United States
v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)). Finally, his assertion
that a prior conviction is an element of an illegal reentry offense that must be
charged in the indictment is contrary to Almendarez-Torres v. United States,
523 U.S. 224 (1998), reaffirmed by our court in the wake of Alleyne v. United
States, 133 S. Ct. 2151 (2013). See, e.g., United States v. Wallace, 759 F.3d 486,
497 (5th Cir. 2014).
      AFFIRMED.




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