     Case: 09-20538 Document: 00511298021 Page: 1 Date Filed: 11/18/2010




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

                                                 FILED
                                                                         November 18, 2010

                                       No. 09-20538                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

MARTIN ACOSTA,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-cr-00054


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       The defendant, Martin Acosta, was sentenced to 30 months of
imprisonment for illegal reentry pursuant to 8 U.S.C. § 1326(a) and (b)(2). He
appeals, challenging the district court’s imposition of a 16-level offense level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for having been “previously
deported” following a “conviction for a felony that is . . . a crime of violence.” The
district court adopted the Pre-Sentence Report’s recommendation that this
enhancement be applied in light of Acosta’s two prior convictions under Florida

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20538

Statute § 800.04(6)(a). Acosta argues on appeal, as he did below, that
§ 800.04(6)(a)—which criminalizes lewd or lascivious conduct committed upon
or in the presence of persons less than 16 years of age—is not a crime of violence
justifying the enhancement because it does not involve “abuse” of the victim. We
disagree and AFFIRM.
      “The district court’s characterization of [a defendant’s] prior conviction” for
the purposes of a Sentencing Guidelines enhancement “is a question of law that
we review de novo.” United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.
2005).
      Acosta acknowledges that U.S.S.G. § 2L1.2(b)(1)(A)(ii) defines “crime of
violence” to include those offenses involving “sexual abuse of a minor.”
§ 2L1.2(b)(1)(A)(ii). See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). “We use a
common-sense approach to determine if a prior conviction is categorically [such]
an enumerated offense [e.g., “sexual abuse of a minor”], deciding whether an
offense is sexual abuse of a minor according to [the offense’s] ordinary,
contemporary and common meaning.” United States v. Munoz-Ortenza, 563 F.3d
112, 114 (5th Cir. 2009). Acosta further concedes that we are required to
conclude that a conviction is for “sexual abuse of a minor” if our common sense
approach determines that the offense involved conduct that (1) “involve[d] a
minor”; (2) was “sexual” in nature; and (3) was “abus[ive]” towards the minor.
See Izaguirre-Flores, 405 F.3d at 275.
         Florida Statute § 800.04(6)(a) makes it a felony to “1. [i]ntentionally
touch[] a person under 16 years of age in a lewd or lascivious manner; or 2.
[s]olicit[] a person under 16 years of age to commit a lewd or lascivious act.” The
parties dispute whether we can determine from the record which prong of
§ 800.04(6)(a) Acosta was convicted under. However, we need not resolve this
disagreement. Acosta concedes that if intentionally touching a person under 16
years of age in a lewd or lascivious manner necessarily involves “sexual abuse

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                                  No. 09-20538

of a minor,” then so does soliciting a person under 16 years of age to commit a
lewd or lascivious act. Therefore, because we conclude below that the offense of
intentionally touching a person under 16 years of age in a lewd or lascivious
manner necessarily is “sexual abuse of a minor,” we conclude that a conviction
under either prong of Florida Statute § 800.04(6)(a) is a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      Acosta does not challenge that a conviction for intentionally touching a
person under 16 years of age in a lewd or lascivious manner necessarily involves
a minor. Moreover, he explains that under Florida law “lewd” and “lascivious”
have the same meaning and are defined as “‘a wicked, lustful, unchaste,
licentious, or sensual intent on the part of the person doing an act.’” Def. Br. 15
(quoting In re Standard Jury Instructions in Criminal Cases—Report No. 2008-
02, 998 So. 2d 1138, 1140 (Fla. 2008)). Therefore, Acosta concedes that a
conviction under § 800.04(6)(a) is an “inherent[ly]” sexual offense. Id.
      We have previously defined “abuse” as conduct that results in either
physical or psychological harm to the child. See United States v. Zavala-Sustaita,
214 F.3d 601, 605 (5th Cir. 2000); see also Izaguirre-Flores, 405 F.3d at 275-76.
Moreover, we have established a per se rule that “[g]ratifying or arousing one’s
sexual desires in the . . . presence of a child is” abusive “because it involves
taking undue or unfair advantage of the minor and causing such minor
psychological—if not physical—harm.” Izaguirre-Flores, 405 F.3d at 275-76.
Therefore, we have recognized that sexually suggestive contact with, or even in
the presence of, a minor amounts to sexual abuse of a minor. United States v.
Balderas-Rubio, 499 F.3d 470, 473 (5th Cir. 2007) (citing Izaguirre-Flores, 405
F.3d at 275-76)).
      Accordingly, a conviction under § 800.04(6)(a) for touching a minor in a
lewd or lascivious manner necessarily involves abuse because it involves
sexually suggestive contact with the minor. Consistent with the statute’s plain

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text, the jury instructions for the offense, promulgated by the Florida Supreme
Court, establish that an element is that the perpetrator touched the minor in a
“lewd or lascivious manner.” In re Standard Jury Instructions, 998 So. 2d at
1140. (emphasis added). As noted above, Acosta concedes “lewd or lascivious”
indicates that the perpetrator acted with sexual intent. Therefore, to be found
to have acted in a “lewd or lascivious manner” the perpetrator necessarily must
have touched the minor so as to communicate or exhibit his sexual desire. See
Ostrow v. Imler ex rel. D.I., 27 So. 3d 237, 239 (Fla. Dist. Ct. App. 2010) (stating
that to be convicted under § 800.04(6)(a)(1), the defendant must have committed
“sexual conduct”). As we have explained, such sexually suggestive contact
involves abuse because it involves gratifying or arousing one’s sexual desires in
the presence of a minor, which causes psychological if not physical harm to the
minor. Balderas-Rubio, 499 F.3d at 473; Izaguirre-Flores, 405 F.3d at 275-76.
      Therefore, we conclude that a conviction under Florida Statute
§ 800.04(6)(a) constitutes a conviction for “sexual abuse of a minor,” which is a
“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, we AFFIRM
the sentence. Acosta moved to withdraw his request for oral argument and have
this case decided expeditiously. That motion is GRANTED.




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