     Case: 14-41371      Document: 00513149662         Page: 1    Date Filed: 08/11/2015




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

                                                                                 FILED
                                                                             August 11, 2015
                                    No. 14-41371
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO ARMANDO CHAN-VICENTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-547-1


Before JOLLY, WIENER, and COSTA, Circuit Judges.
PER CURIAM: *
       Francisco Armando Chan-Vicente pleaded guilty to illegal reentry into
the United States and received a within-guidelines sentence of 41 months in
prison. He argues that the district court erred by determining that his prior
conviction for indecent liberties with a child under Code of Virginia § 18.2-
370(A)(3) was a crime of violence meriting a 16-level enhancement under
U.S.S.G. § 2L1.2. “Crime of violence” under this Guidelines section includes


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41371     Document: 00513149662    Page: 2   Date Filed: 08/11/2015


                                 No. 14-41371

sexual abuse of a minor. U.S.S.G. § 2L1.2, comment (n.1(B)(iii)). Because the
Guidelines do not further define that offense, the categorical approach requires
that we assess whether the elements of the state offense of conviction “comport
with the generic meaning” of sexual abuse of a minor.         United States v.
Rodriguez, 711 F.3d 541, 553 (5th Cir. 2013) (en banc), cert. denied, 134 S. Ct.
512 (2013). We conduct a de novo review of this issue. See United States v.
Ramos-Sanchez, 483 F.3d 400, 402 (5th Cir. 2007).
      The enhancement was applied based on Chan-Vicente’s prior conviction
of the following offense:
       A. Any person 18 year of age or over, who, with lascivious intent,
          knowingly and intentionally commits any of the following acts
          with any child under the age of 15 years is guilty of a Class 5
          felony: . . .

             (3) Propose that any such child feel or fondle his own sexual
                 or genital parts or the sexual or genital parts of such
                 person or propose that such person feel or fondle the
                 sexual or genital parts of any such child.


VA. CODE ANN. § 18.2-370(A)(3).        Chan-Vicente concedes that his first
challenge to this offense being classified as sexual abuse of a minor—that it
does not require a certain age difference between the perpetrator and victim—
is foreclosed. See Rodriguez, 711 F.3d at 562 n.28 (rejecting similar argument
because “the definitions of ‘sexual abuse of a minor’ in legal and other well-
accepted dictionaries do not include such an age-differential requirement”).
      His remaining contention is that the Virginia offense does not qualify as
sexual abuse of a minor because it does not necessarily entail abuse. Chan-
Vicente argues that the statute could encompass one teenager proposing
“consensual petting” to another, which he argues would not comport with the
ordinary meaning of sexual abuse. See Rodriguez, 711 F.3d at 568 (Haynes, J.,



                                       2
     Case: 14-41371       Document: 00513149662         Page: 3     Date Filed: 08/11/2015


                                       No. 14-41371

concurring in the judgment) (taking the position that a “common-sense, ‘plain-
meaning’ understanding of ‘abuse’” would not include “otherwise consensual
‘petting’ between teenagers”). But Chan-Vincente needs to show a “realistic
probability” that the statute would be applied in such a manner, and he cites
no case showing that it ever has been. See United States v. Carrasco-Tercero,
745 F.3d 192, 198 (5th Cir. 2014).
       Chan-Vincente further argues that the Virginia offense applies to some
conduct that does not amount to sexual abuse because it does not require a
sexual act in the presence of the child.             Our case law has not, however,
recognized such a requirement. United States v. Cortez-Cortez, 770 F.3d 355,
358 (5th Cir. 2014), confirmed that this court “has established a per se rule
that gratifying or arousing one’s sexual desires in the presence of a child is
abusive,” but did not say that in-person conduct is necessary for an offense to
constitute sexual abuse of a minor. We have recognized that conduct carrying
the potential for psychological harm, without any physical harm, may
constitute sexual abuse of a child. See United States v. Ramon-Sanchez, 483
F.3d 400, 403 (5th Cir. 2007). The statute at issue in Ramon-Sanchez, like the
Virginia one at issue here, can be violated without a showing of physical
proximity. See id. at 402 (quoting KAN. STAT. ANN. § 21-3510(a)(1)). 1 The
psychological harm we recognized as sufficient in Ramon-Sanchez thus did not
depend on physical proximity. Especially in light of modern technology, which
has made the internet a common vehicle for sexual abuse of minors, we are not
convinced that physical proximity is required to establish the psychological
harm that we have recognized is sufficient to constitute abuse.



       1 The Kansas statute prohibited “enticing or soliciting a child 14 or more years of age
but less than 16 years of age to commit or to submit to an unlawful sexual act.” See id. It
has since been repealed.


                                              3
   Case: 14-41371   Document: 00513149662   Page: 4   Date Filed: 08/11/2015


                             No. 14-41371

    We are therefore not persuaded that the district court erred.       The
judgment is AFFIRMED.




                                   4
