     Case: 16-41547      Document: 00514212409         Page: 1    Date Filed: 10/26/2017




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


                                    No. 16-41547
                                                                                  FILED
                                                                           October 26, 2017
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANDRES ABRAHAM HERNANDEZ-VASQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-439-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Andres Abraham Hernandez-Vasquez pleaded guilty to illegal reentry,
and the district court sentenced him to 36 months of imprisonment and three
years of supervised release. The sentence was an upward variance from a
guidelines range of 15 to 21 months. Hernandez-Vasquez raises two issues on
appeal.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41547

      First, Hernandez-Vasquez argues that the district court imposed a
substantively unreasonable sentence because his sentence represents a clear
error of judgment in balancing the 18 U.S.C § 3553(a) sentencing factors. He
contends that the district court gave too much weight to deterrence and public
protection to be justified by his past criminal conduct and that the district court
should have given more weight to these considerations: (1) this is his first
illegal-reentry offense, (2) his prior New York conviction of rape in the second
degree was non-violent, and (3) since his release from state custody in 2009, he
has allegedly committed no similar offense.
      The instant record reflects that the district court heard Hernandez-
Vasquez’s arguments and that it considered the § 3553(a) factors. It ultimately
determined the above-guidelines sentence was warranted in light of the
sentencing factors. This was not an abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). “Though [Hernandez-Vasquez] may disagree
with how the district court balanced the § 3553(a) factors, [his] argument that
these factors should have been weighed differently is not a sufficient ground
for reversal.” United States v. Malone, 828 F.3d 331, 342 (5th Cir.), cert.
denied, 137 S. Ct. 526 (2016).
      Second, Hernandez-Vasquez argues that his prior New York conviction
of rape in the second degree was not an aggravated felony and that the district
court therefore erred when it sentenced him under 8 U.S.C. § 1326(b)(2). He
concedes that he did not raise this argument in the district court; we review
this issue for plain error only. See United States v. Neal, 578 F.3d 270, 272
(5th Cir. 2009).
      An “aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) by a long list
of offenses that includes “sexual abuse of a minor.”             § 1101(a)(43)(A).
Hernandez-Vasquez argues that his New York conviction does not meet the



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                                  No. 16-41547

generic definition of sexual abuse of a minor because the generic definition
requires at least a four-year age difference between offender and victim and
because consensual sex does not qualify as generic abuse.
      Hernandez-Vasquez is correct that his arguments are foreclosed. See
United States v. Cabecera Rodriguez, 711 F.3d 541, 559-60, 562 n.28 (5th Cir.
2013) (en banc) (rejecting four-year age differential requirement); United
States v. Elizondo-Hernandez, 755 F.3d 779, 781-82 (5th Cir. 2014) (per
curiam) (holding that indecency with a child by contact was necessarily
“abusive”). Although Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572-73
(2017), held that “in the context of statutory rape offenses focused solely on the
age of the participants, the generic federal definition of ‘sexual abuse of a
minor’ under § 1101(a)(43)(A) requires the age of the victim to be less than 16,”
it did not decide “whether the generic crime of sexual abuse of a minor under
8 U.S.C. § 1101(a)(43)(A) includes an additional element of” a minimum age
differential. Hernandez-Vasquez has not demonstrated that the district court
plainly erred by sentencing him under § 1326(b)(2).
      AFFIRMED.




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