     Case: 15-50670       Document: 00513696605         Page: 1     Date Filed: 09/28/2016




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

                                       No. 15-50670                        FILED
                                                                  September 28, 2016
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

               Plaintiff - Appellee

v.

EDUARDO CRUZ-DE JESUS,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:14-CR-2256-1


Before JOLLY, BARKSDALE and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Eduardo Cruz-de Jesus challenges the district court’s application of a 16-
level sentencing enhancement based on his previous conviction of child
molestation under Washington state law. We affirm, because the Washington
conviction is a “crime of violence” for the purposes of U.S.S.G. §
2L1.2(b)(1)(A)(ii) and is a “felony” within the meaning of that term in the
Sentencing Guidelines.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-50670
                                         I.
      Cruz-de Jesus pleaded guilty to entering the United States in violation
of 8 U.S.C. § 1326(a) and (b). The district court imposed a 16-level sentencing
enhancement under § 2L1.2(b)(1)(A)(ii) because Cruz-de Jesus was deported in
2012 after a felony conviction for a crime of violence. The state conviction prior
to his deportation was for child molestation in the third degree under
Washington Revised Code § 9A.44.089.          A total offense level of 21 and a
criminal history category of V gave rise to a guidelines range of 70 to 87 months
of imprisonment.     Cruz-de Jesus challenges the sentencing enhancement,
arguing first that the state offense of child molestation is not a crime of violence
and, second, that the offense is not a “felony” because it is not punishable by a
term exceeding one year.
                                        II.
                                        A.
      In the district court, Cruz-de Jesus objected to the classification of the
Washington child molestation conviction as a crime of violence. He contends
that the Washington child molestation statute is broader than the generic
definition of “sexual abuse of a minor” because the statute does not include an
element of physical or psychological harm to the minor and therefore does not
constitute “abuse” within the meaning of “sexual abuse of a minor.” We review
de novo the question of whether an offense constitutes a crime of violence under
the Guidelines. United States v. Munoz-Gonzalez, 812 F.3d 439, 441–42 (5th
Cir. 2016).
                                        B.
      The application notes to § 2L1.2 of the Sentencing Guidelines define a
crime of violence as any one of several enumerated offenses, including “sexual
abuse of a minor.” U.S.S.G. § 2L1.2, cmt. 1(B)(iii). Courts generally apply a
categorical approach when classifying prior convictions for sentence
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                                   No. 15-50670
enhancement purposes. See Taylor v. United States, 495 U.S. 575, 602 (1990).
In analyzing a conviction under the categorical approach, the court considers
“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. 2013) (en
banc). If the statute extends beyond the generic definition of an offense to
encompass 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.”    United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012)
(quoting United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)).
Furthermore, if the court finds “‘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,’ then it cannot use the state conviction to
enhance.” United States v. Albornoz-Albornoz, 770 F.3d 1139, 1141 (5th Cir.
2014) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
        The Washington statute under which Cruz-de Jesus was previously
convicted is Section 9A.44.089 of the Washington Revised Code. The statute
defines child molestation in the third degree as follows:
        A person is guilty of child molestation in the third degree when the
        person has, or knowingly causes another person under the age of
        eighteen to have, sexual contact with another who is at least
        fourteen years old but less than sixteen years old and not married
        to the perpetrator and the perpetrator is at least forty-eight
        months older than the victim.
WASH. REV. CODE § 9A.44.089(1) (2014).          To determine whether conduct
criminalized under a statute constitutes “sexual abuse of a minor,” this court
examines three factors: (1) whether the conduct involved a minor; (2) whether
the conduct was “sexual”; and (3) whether the conduct constituted “abus[e].”
United States v. Puga-Yanez, No. 15-41008, 2016 WL 3708243, at *3 (5th Cir.
July 11, 2016).


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                                 No. 15-50670
      Cruz-de Jesus concedes that the first two prongs of the analysis are
satisfied. First, the Washington offense requires the involvement of a minor
because it calls for the victim to be under the age of eighteen. Second, the
offense is “sexual” in nature because it has “sexual arousal or gratification as
its purpose.” United States v. Olalde-Hernandez, 630 F.3d 372, 375 (5th Cir.
2011). The third element—whether the conduct was “abusive”—is disputed in
this case. This question, however, has been resolved—and Cruz-de Jesus’s
argument effectively foreclosed—in the recent case Puga-Yanez, 2016 WL
3708243, at *4. In Puga-Yanez, this court held that harm to a minor is not an
element of the generic crime of sexual abuse of a minor. Id. Harm is not an
element even though psychological or physical harm to the minor often stems
from the defendant’s conduct. Id. As a result of this court’s Puga-Yanez
decision, we hold that the Washington offense of child molestation in the third
degree fits the generic definition of “sexual abuse of a minor.”
                                      III.
                                       A.
      Cruz-de Jesus further contends that his previous Washington conviction
was not a “felony” within the meaning of the term in the Sentencing
Guidelines. Because Cruz-de Jesus did not raise this objection in district court,
we review it for plain error. See United States v. Ceron, 775 F.3d 222, 225 (5th
Cir. 2014). Under plain error review, the appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If those three requirements are
satisfied, the appellate court has discretion to cure the error.       Id.   Such
discretion “ought to be exercised only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).


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                                  No. 15-50670
                                       B.
      The Sentencing Guidelines definition of a “felony” is “any federal, state,
or local offense punishable by imprisonment of a term exceeding one year.”
U.S.S.G. § 2L1.2 cmt. n.2. This court looks to the maximum statutory term of
imprisonment, rather than the length of the defendant’s actual sentence, in
determining whether to classify an offense as a felony. See United States v.
Rivera-Perez, 322 F.3d 350, 352 (5th Cir. 2003); United States v. Caicedo-
Cuero, 312 F.3d 697, 705–06 (5th Cir. 2002).
      Cruz-de Jesus argues that his prior conviction should not be classified as
a “felony” because he could not be sentenced to a term greater than twelve
months under the Washington sentencing scheme. The state court judgment
for his previous conviction reflects that the “standard range” for the conviction
was six to twelve months of imprisonment and that the maximum statutory
range was five years.     Cruz-de Jesus contends that the five-year term of
imprisonment was inapplicable to him absent a finding that an exceptional
sentence should have been imposed.
      The Supreme Court resolved this matter with respect to the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), in United States v. Rodriquez,
553 U.S. 377 (2008).     In Rodriquez, the Court examined the Washington
sentencing scheme and held that the concept of “maximum” term of
imprisonment applied to the maximum term indicated in the relevant criminal
statute rather than that depicted in the state sentencing guidelines range.
Rodriquez, 553 U.S. at 390–91. Cruz-de Jesus’s argument that the term of
imprisonment should be limited to a term of six to twelve months is thus
thwarted. In the light of Rodriquez, this court looks to the maximum statutory
sentence within the Washington sentencing scheme. Because the maximum
statutory sentence for the Washington offense of child molestation in the third
degree is five years, we conclude that this offense constitutes a “felony” for the
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                                 No. 15-50670
purposes of § 2L1.2. Thus, Cruz-de Jesus’s argument fails under plain error
review because no forfeited error is present.
                                      IV.
      In sum, the district court did not err in applying the 16-level
enhancement to Cruz-de Jesus’s sentence. First, our decision in Puga-Yanez
resolves the issue of whether Cruz-de Jesus’s previous conviction under the
Washington statute of child molestation in the third degree constitutes a crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Second, because the Supreme
Court confirmed in Rodriquez that we are to consider the maximum statutory
term of imprisonment in determining whether Cruz-de Jesus’s previous offense
constitutes a “felony” under the Sentencing Guidelines, we find no error under
plain error review. Thus, the sentence is AFFIRMED.




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