     Case: 13-40080      Document: 00512719940         Page: 1    Date Filed: 08/01/2014




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

                                                                                   FILED
                                      No. 13-40080                            August 1, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff - Appellee
v.

CARLOS DAVID AMAYA,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:12-CR-563


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Carlos David Amaya pled guilty to a violation of 8 U.S.C. § 1326(a) and
(b)(1), for being unlawfully present in the United States after deportation
subsequent to a felony conviction. Amaya’s sole issue on appeal involves the
district court’s addition of a 16-level enhancement for a previous conviction
constituting a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).                         In
applying the 16-level enhancement, the district court referred to Amaya’s 2005
Iowa conviction for “Assault with Intent to Commit Sexual Abuse.” IOWA CODE


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40080
§ 709.11.    Amaya contends that this conviction is neither an enumerated
offense under § 2L1.2’s definition of a crime of violence, nor fits within that
section’s residual clause (because it is not “any other offense . . . that has as an
element the use, attempted use, or threatened use of physical force against the
person of another”). We AFFIRM.
                                              I.
       Amaya is a 32-year-old citizen of El Salvador. In June 2012, Customs
and Border Protection agents encountered him illegally entering the United
States near Brownsville, Texas. A background check revealed in 2005 he had
pled guilty to, and been convicted of, assault with intent to commit sexual
abuse in an Iowa state court, for which he received a two-year suspended
sentence. Amaya was arrested and indicted for being unlawfully present in
the United States after deportation subsequent to a felony conviction in
violation of 8 U.S.C. § 1326(a) and (b)(1). He pled guilty to the charge.
       According to the original pre-sentencing report (“PSR”), Amaya’s total
offense level was 21. The probation officer recommended a base offense level
of eight and a 16 level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
for a “crime of violence” based on his 2005 Iowa conviction. Amaya received a
three-level reduction for acceptance of responsibility. With his total offense
level of 21, the Guidelines advisory sentencing range was 37 to 46 months.
Amaya filed a written objection to the PSR’s recommendation of a 16-level
crime of violence enhancement; he contended that the 2005 Iowa conviction
was not an “aggravated felony” because it was a general intent crime with no
requirement that there be actual physical contact. 1




       1 Amaya appears to have mistakenly objected to the application of U.S.S.G.
§ 2L1.2(b)(1)(C), which mandates an increase of 8 offense levels when the offender has a prior
conviction for an “aggravated felony.”
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                                    No. 13-40080
      The Probation Office filed an addendum to the PSR, which noted that
Amaya’s 2005 Iowa conviction qualified as a crime of violence under the
definitions of two enumerated offenses, either as a “forcible sex offense” or as
“sexual abuse of a minor.” 2 At his sentencing hearing, Amaya again raised his
objection to the 16-level enhancement, but did so under the incorrect
subsection of § 2L1.2. The district court overruled Amaya’s objection and
added the 16-level crime of violence enhancement, holding that Amaya’s 2005
conviction met the definition of a “forcible sex offense,” which is an enumerated
offense under the Guidelines. The district court also recognized the possibility
that his previous conviction qualified as “sexual abuse of a minor,” but it
applied the enhancement based solely on the “forcible sex offense” rationale.
After addressing the propriety of the 16-level enhancement, the district court
sentenced Amaya to 42 months of imprisonment. Amaya timely appealed.
                                           II.
      Although post-Booker the Sentencing Guidelines are advisory only, the
district court must still properly calculate the Guidelines-sentencing range
when imposing a sentence. Gall v. United States, 552 U.S. 38, 51 (2007). We
review properly preserved objections to a district court’s interpretation of the
Guidelines de novo and the district court’s factual determinations for clear
error. United States v. Garza, 587 F.3d 304, 308 (5th Cir. 2009) (citation
omitted).
      The Government maintains that our review should be for plain error
because Amaya failed to preserve the issue by misstating the subsection under
which his sentence was enhanced during his sentencing hearing. Although
Amaya misstated the subsection, he nevertheless “raise[d] a claim of error with


      2  The addendum made no mention of whether the 2005 Iowa conviction had as an
element the use, attempted use, or threatened use of physical force against the person of
another.
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                                 No. 13-40080
the district court in such a manner so that [it could] correct itself and thus,
obviate the need for our review.” United States v. Krout, 66 F.3d 1420, 1434
(5th Cir. 1995) (citation and internal quotation marks omitted). The transcript
from the sentencing hearing shows that the district court engaged in an
extended dialogue about the appropriateness of the crime of violence
enhancement under § 2L1.2(b)(1)(A)(ii). Furthermore, the Government gave a
detailed response on the record in defense of the enhancement. We hold that
Amaya’s objections were sufficient to preserve the issue for appellate review.
Thus, we will review the district court’s application of the Guidelines
enhancement de novo, and, if we find error, determine whether such error was
harmless. E.g., United States v. Espinoza-Acuna, 328 F. App’x 918, 919 (5th
Cir. 2009) (“Because Espinoza sufficiently preserved his objection to the
enhancement, this court will review the record de novo to determine if the
enhancement was erroneous and, if so, whether the error was harmless.”).
                                      III.
      Section 2L1.2(a) provides for a base offense level of eight when a
defendant is convicted of unlawfully entering or remaining in the United
States. The court applies an upward adjustment to this base level under
subsection (b)(1)(A)(ii) if the offender “previously was deported, or unlawfully
remained in the United States, after– (A) a conviction for a felony that is . . .
(ii) a crime of violence.” A past conviction qualifies as a “crime of violence”
under this subsection if it (1) meets the definition of one of the listed
enumerated offenses, or (2) falls under the residual clause by having “as an
element the use, attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).
      As stated above, Amaya contends that the district court committed
reversible error by classifying his 2005 Iowa conviction as a crime of violence
under § 2L1.2(b)(1)(A)(ii) and increasing his base offense level by 16 levels.
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                                  No. 13-40080
Specifically, he contends that his prior conviction does not meet the definition
of either of the enumerated offenses, “forcible sex offense” or “sexual abuse of
a minor.” Amaya continues that the conviction cannot fall under the residual
clause because it lacks the required “force” element. Finally, he contends that
the court’s error in applying this enhancement was not harmless.             The
Government maintains, however, that the enhancement was proper both as an
enumerated offense (a “forcible sex offense” and “sexual abuse of a minor”) and
under the residual clause.
      We analyze whether a past conviction is a crime of violence under the
Guidelines by applying a categorical approach, which examines “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). Because we look to the statute of conviction rather than the
facts of the crime, “we must presume that the conviction rested upon nothing
more than the least of the acts criminalized.” Moncrieffe v. Holder, 133 S. Ct.
1678, 1684 (2013) (citation and internal quotation marks omitted).          After
assuming that the defendant committed the crime in the least culpable
manner, we match the elements of the state conviction with those of the
enumerated offense to determine whether the state conviction is the equivalent
of the generic federal offense. Id.
      If the state statute of conviction is divisible, however, we may consult
allegations in a charging instrument to which a defendant pled guilty.
Rodriguez, 711 F.3d at 549 n.8 (noting the charging document, terms of a plea
agreement, and transcript of the recitation of the factual basis as examples).
This consultation is allowed “only for the limited purpose of ascertaining which
of the disjunctive elements the charged conduct implicated.” United States v.
Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).


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                                       No. 13-40080
                                             IV.
       Amaya pled guilty to assault with intent to commit sexual abuse under
IOWA CODE § 709.11. The Guidelines define a felony as “any federal, state, or
local offense punishable by imprisonment for a term exceeding one year.”
U.S.S.G. § 2L1.2 cmt. n. 2. Therefore, a conviction under any of the three
subsections of IOWA CODE § 709.11 meets the preliminary requirement that a
conviction be a “felony” to qualify as a crime of violence.                   See id. at §
2L1.2(b)(1)(A).
       We are still, however, left with several disjunctive elements of § 709.11
(“Assault with intent to commit sexual abuse”) that need defining. The first
element, assault, is defined generally under Iowa law as:
       (1) Any act which is intended to cause pain or injury to, or which
           is intended to result in physical contact which will be insulting
           or offensive to another, coupled with the apparent ability to
           execute the act;
       (2) Any act which is intended to place another in fear of immediate
           physical contact which will be painful, injurious, insulting, or
           offensive, coupled with the apparent ability to execute the act;
           or
       (3) Intentionally point[ing] any firearm toward another, or
           display[ing] in a threatening manner any dangerous weapon
           toward another.
IOWA CODE § 708.1(2).          Iowa law defines the next element, “sexual
abuse,” as:
       Any sex act 3 between persons [. . .] by either of the persons when
       the act is performed with the other person in any of the following
       circumstances:
       1.    The act is done by force or against the will of the other. If the
       consent or acquiescence of the other is procured by threats of
       violence toward any person or if the act is done while the other is
       under the influence of a drug inducing sleep or is otherwise in a


       3The term “sex act” is defined in § 702.17 of the IOWA CODE, but it need not be defined
for purposes of our review.
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                                      No. 13-40080
       state of unconsciousness, the act is done against the will of the
       other.
       2.    Such other person is suffering from a mental defect or
       incapacity which precludes giving consent, or lacks the mental
       capacity to know the right and wrong of conduct in sexual matters.
       3.     Such other person is a child. 4
Id. at § 709.1. When we apply the modified categorical approach and consult
the allegations in the charging instrument to which Amaya pled guilty, we are
able to pare down the statute to determine the least culpable conduct that
constitutes Amaya’s violation of § 709.11. Miranda-Ortegon, 670 F.3d at 663.
The charging instrument states that Amaya was charged with the crime of
“Assault with the Intent to Commit Sexual Abuse[,]” and alleges that Amaya
“did unlawfully and willfully assault[] B.H. with the intent to commit sexual
abuse (perform a sex act with a child under the age of 12).” Therefore, the least
culpable conduct comprising Amaya’s violation of § 709.11 is that he committed
an assault (an “act which is intended to place another in immediate fear of
physical contact which will be . . . insulting, or offensive, coupled with the
apparent ability to execute the act”) with the specific intent to commit sexual
abuse (by performing a sex act with a child).
                                            V.
       Thus, having pared down IOWA CODE § 709.11, and having established
the least culpable conduct comprising Amaya’s conviction under that statute,
we turn to whether that conduct is the equivalent of the enumerated offense of
“sexual abuse of a minor.” 5 Moncrieffe, 133 S. Ct. at 1684 (stating that courts



       4 Section 702.5 of the IOWA CODE defines a child as “any person under the age of
fourteen years.”
       5 We “can affirm [an] enhancement based on any ground supported by the record.”

United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) (citing United States v.
Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006)). Since we hold that Amaya’s conviction
under § 709.11 is the equivalent of a conviction for the enumerated offense of “sexual abuse
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                                      No. 13-40080
must analyze whether the statute of conviction “necessarily involve[s] . . . facts
equating to the generic federal offense”). Where the enumerated offenses are
not defined in the Guidelines, and they are non-common-law offense categories,
we “use a common sense approach and give the offenses their generic,
contemporary meaning.” Id. (internal quotation marks and citation omitted)
(emphasis added). This “generic, contemporary meaning” is derived from “the
common usage of the[] terms as stated in legal and other well-accepted
dictionaries.” Rodriguez, 711 F.3d at 559.
       We have previously held that “sexual abuse of a minor” is a non-common-
law offense and have established the generic, contemporary meaning of the
crime. Id. at 559.      First, we generally define “sexual abuse” as “‘[a]n illegal
sex act, esp[ecially] one performed against a minor by an adult.’” United States
v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005) (quoting BLACK’S LAW
DICTIONARY 10 (8th ed. 2004)). The word “sexual” is defined as: “‘of, relating
to, or associated with sex as a characteristic of an organic being.”’ Id. (quoting
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2082 (1986)). Abuse is
defined as “‘tak[ing] unfair or undue advantage of” or “us[ing] or treat[ing] [a
person] so as to injure, hurt, or damage.’” Id. (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 8 (1986)). The harm constituting “abuse” need
not be physical in nature; a minor’s unique status means that the harm can be
psychological in nature and still constitute abuse. Id.
       Amaya argues that his conviction under § 709.11, as pared down, did not
necessarily involve conduct constituting actual sexual abuse. 6 He points out



of a minor” under the Guidelines, we need not reach the question whether that conviction is
also the equivalent of a “forcible sex offense.”
       6 Amaya also contends that a fourteen-year-old boy could be guilty of assault with

intent to commit sexual abuse if he “committed any act that placed a 13-year[-]old girl just
shy of her 14th birthday in immediate fear of an offensive physical contact.” He argues that
such an act would not necessarily be “abusive” under our generic, contemporary definition of
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                                       No. 13-40080
that a defendant may be convicted under § 709.11 even though the defendant’s
actions never “amount[] to a sex act.” See In re A.G., 662 N.W.2d 374 (Iowa Ct.
App. 2003) (unpublished). Amaya is correct that a conviction under § 709.11
may stand even though a defendant leaves “without committing [an act of]
sexual abuse.” Id. (upholding a conviction under § 709.11 even though no
sexual act took place; specific intent necessary to secure the conviction was
proved through the defendant’s “deception, assault, and desire to have [sexual
relations] with the victim”). Even though no sexual acts need take place under
§ 709.11, the conviction still meets the generic, contemporary definition of
“sexual abuse of a minor” under the Guidelines because it necessarily involves
conduct amounting to an attempt to commit that enumerated offense. U.S.S.G.
§ 2L1.2 cmt. n. 5 (noting that a prior conviction can count as an enumerated
offense if the prior conviction involved “aiding and abetting, conspiring, [or]
attempting, to commit such offenses”).
       In the Guidelines context we have recently defined “attempt” as
requiring a mens rea of “intent to commit some other crime[,]” and an actus
reus of a “substantial step,” denoting “an act strongly corroborative of the
actor’s criminal intent and . . . amount[ing] to more than mere preparation.”
United States v. Sanchez, 667 F.3d 555, 561 (5th Cir. 2012).                      In State v.
Maynard, the Iowa Supreme Court described the type of conduct evidencing
the specific intent to commit sexual abuse. 379 N.W.2d 382, 383 (Iowa App.


“sexual abuse of a minor” because of the closeness in age between the offender and the child.
Insofar as his contention implies that Iowa courts would interpret § 709.11 more broadly
because they could hypothetically convict a juvenile in such a situation, “our focus on the
minimum conduct criminalized by the state statute is not an invitation to apply legal
imagination to the state offense.” Moncrieffe, 133 S. Ct. at 1684–85 (citation and internal
quotation marks omitted). There must be 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.” Id. at 1685 (citation and internal quotation marks omitted). In the words of our
court when faced with similar facts, “we will not interpret a statute in a fashion that will
produce absurd results.” United States v. Izaguirre-Flores, 405 F.3d 270, 277 (5th Cir. 2005).
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                                  No. 13-40080
1985).     A conviction under § 709.11 requires evidence that the defendant
undertook an overt act that:
      reach[ed] far enough towards the accomplishment . . . to amount
      to the commencement of the consummation[;] [it must] not [be]
      merely preparatory . . . it must approach sufficiently near it to
      stand either as the first or some subsequent step in a direct
      movement towards the commission of the offense after the
      preparations are made.
Id.; see also State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989). The overt acts
undertaken with the specific intent to commit sexual abuse (perform a sex act
with a child) are the equivalent of attempted “sexual abuse of a minor,” an
enumerated offense that qualifies as a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
                                       VI.
      Under the categorical approach mandated by the Supreme Court of the
United States, the least culpable conduct comprising Amaya’s conviction under
§ 709.11 of the IOWA CODE is the equivalent of the enumerated offense of
attempted “sexual abuse of a minor” and qualifies as a crime of violence under
2L1.2(b)(1)(A)(ii) of the Guidelines. Accordingly, the judgment of the district
court is
                                                                    AFFIRMED.




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