     Case: 13-20534      Document: 00512835452         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. 13-20534                                 FILED
                                  Summary Calendar                       November 13, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE VICTOR CISNEROS-CASTILLO, also known as Jose Victor Castillo
Cisneros, also known as Jose Victor Castillo-Cisneros, also known as Jose
Victor Cisneros, also known as Jose Cisneros, also known as Jose Cisneros-
Castillo, also known as Jose Victor Cisneros Castillo, also known as Jose Victor
Magna,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-242-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Jose Victor Cisneros-Castillo (Cisneros) pleaded
guilty to illegal reentry by a previously deported alien. The district court
applied a 12-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) on



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20534

determining that Cisneros’s prior Texas conviction for indecency with a child
was a crime of violence. Concluding that his criminal history was under-
represented, the court sentenced Cisneros to 62 months of imprisonment,
above the applicable guidelines range.
       On appeal, Cisneros contends that the district court erred in applying
the 12-level enhancement under § 2L1.2(b)(1)(A)(ii).       He asserts that his
conviction for indecency with a child is not a crime of violence because the
statute under which he was convicted, Texas Penal Code § 21.11, includes
conduct that does not constitute “abuse” within the meaning of “sexual abuse
of a minor.” He also contends that because the Texas statute does not require
an age differential of at least four years between the victim and the
perpetrator, it does not constitute sexual abuse of minor. Cisneros claims
further that violation of § 21.11 is not a crime of violence because that section
permits a conviction when the victim is under 17 years of age, as opposed to 16
years of age. He concludes that the district court erred in treating the Texas
conviction as an aggravated felony for purposes of the enhanced penalty
provision of 8 U.S.C. § 1326(b)(2). See 8 U.S.C. § 1101(a)(43).
       The Sentencing Guidelines call for a 12-level increase in a defendant’s
base offense level if he previously was removed after being convicted of a crime
of violence and the conviction was not assigned any criminal history points.
§ 2L1.2(b)(1)(A)(ii).   The Application Notes define a crime of violence, in
relevant part, as any specifically 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[.]” § 2L1.2, comment.
(n.1(B)(iii)).




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                                  No. 13-20534

      Cisneros raises his sentencing challenges for the first time on appeal, so
we review for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). To show plain error, 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 the appellant makes such a showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Generally, courts employ a categorical approach when classifying a prior
conviction for sentence enhancement purposes. See 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, we may apply a modified categorical approach to
ascertain under which statutory subsection the defendant was convicted.
United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012). If the
statute of conviction cannot be narrowed, we consider “whether the least
culpable act constituting a violation of that statute constitutes” a crime of
violence for purposes of § 2L1.2. United States v. Moreno-Florean, 542 F.3d
445, 449 (5th Cir. 2008) (internal quotation marks and citations omitted).
      Cisneros was charged with aggravated sexual assault of a child, but he
pleaded guilty to indecency with a child, in violation of Texas Penal Code
§ 21.11(a). Indecency with a child can be committed by contact, in violation of
Texas Penal Code § 21.11(a)(1), or by exposure, in violation of Texas Penal
Code § 21.11(a)(2). We have previously held that both offenses constitute
sexual abuse of a minor for purposes of § 2L1.2(b)(1)(A)(ii). United States v.




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                                  No. 13-20534

Najera-Najera, 519 F.3d 509, 512 & n.2 (5th Cir. 2008); United States v.
Zavala-Sustaita, 214 F.3d 601, 604-05 (5th Cir. 2000).
      In the wake of our en banc decision in Rodriguez, 711 F.3d at 548, which
created a new plain-meaning approach for offense categories that were not
defined at common law, a violation of § 21.11(a) constitutes sexual abuse of a
minor for purposes of § 2L1.2(b)(1)(A)(ii).      See United States v. Elizondo-
Hernandez, 755 F.3d 779, 782 (5th Cir. 2014). Cisneros has not established
error, plain or otherwise, in the imposition of the crime of violence
enhancement.
      Cisneros’s remaining contentions are likewise without merit. We have
previously rejected the assertion that the Texas statute does not fit the generic
contemporary definition of “sexual abuse of a minor” because it does not
require an age differential of at least four years. We have also rejected the
claim that a violation of the statute is not a crime of violence because it permits
conviction when the victim is under 17 years old. See Rodriguez, 711 F.3d at
548. Neither did the district court err in treating Cisneros’s conviction under
§ 21.11(a) as an aggravated felony for purposes of the increased penalty
provisions of § 1326(b). See Elizondo-Hernandez, 755 F.3d at 782; Zavala-
Sustaita, 214 F.3d at 603-07.
      AFFIRMED.




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