    Case: 16-40438   Document: 00513773577     Page: 1   Date Filed: 11/28/2016




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

                               No. 16-40438
                                                                          Fifth Circuit

                                                                        FILED
                             Summary Calendar                   November 28, 2016
                                                                   Lyle W. Cayce
                                                                        Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

EDUARDO PENALOZA-CARLON,

                                          Defendant–Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:

      Eduardo Penaloza-Carlon pleaded guilty of having been found unlaw-
fully in the United States after deportation after a felony conviction, and he
was sentenced, below the advisory guideline range, to twenty-two months of
imprisonment and three years of supervised release. On appeal, Penaloza-
Carlon contends that the district court erred in applying the twelve-level
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                                 No. 16-40438

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his Oregon
conviction of rape in the third degree. He contends that the Oregon statute
sweeps more broadly than the generic definitions of statutory rape, forcible sex
offense, and sexual abuse of a minor for purposes of the § 2L1.2 crime-of-
violence enhancement.

      In the district court, Penaloza-Carlon urged that the § 2L1.2 enhance-
ment did not apply because the Oregon statute lacks an age difference. Thus,
we review de novo whether that conviction is a crime of violence under § 2L1.2
on that basis. See United States v. Bonilla, 524 F.3d 647, 651–52 (5th Cir.
2008). Because Penaloza-Carlon did not maintain, in the district court, that
the conduct proscribed by the Oregon statute is broader than the generic, con-
temporary meaning of, inter alia, sexual abuse of a minor, we review that point
for plain error. See United States v. Garcia-Perez, 779 F.3d 278, 281 & n.2 (5th
Cir. 2015).

      The Oregon statute defines rape in the third degree as “sexual inter-
course with another person under 16 years of age.”             OR. REV. STAT.
§ 163.355(1). To determine whether conduct criminalized under a statute
constitutes “sexual abuse of a minor,” this court examines (1) whether the con-
duct involved a minor; (2) whether the conduct was “sexual”; and (3) whether
the conduct constituted “abus[e].” United States v. Puga-Yanez, 829 F.3d 317,
320–21 (5th Cir. 2016).

      The first two prongs are satisfied. First, the Oregon offense requires the
involvement of a minor because it calls for the victim to be under the age of
sixteen. Penaloza-Carlon’s argument to the contrary is foreclosed. See United
States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc). 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.


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                                       No. 16-40438

2011).

       Penaloza-Carlon disputes the third element—whether the conduct was
“abusive.” He relies on decisions of the Ninth Circuit that the Oregon offense
does not qualify as sexual abuse of a minor because it lacks the abuse element
in that it does not expressly prohibit conduct that causes physical or psycho-
logical harm in light of the age of the victim. Those decisions, however, are not
binding authority in this circuit and are inconsistent with our precedent. 1

       Penaloza-Carlon therefore has failed to show that the district court com-
mitted clear or obvious error by finding that the Oregon conviction was categ-
orically sexual abuse of a minor. See Puckett v. United States, 556 U.S. 129,
135 (2009). Accordingly, he has not shown that the court erred in applying the
twelve-level enhancement under § 2L1.2(b)(1)(A)(ii)

       AFFIRMED.




       1  See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (holding that other
circuits’ decisions are persuasive only); Puga-Yanez, 829 F.3d at 322 & n.10 (holding that,
even though psychological or physical harm to the minor often stems from the defendant’s
conduct, “harm to the minor is not an element of the generic crime of ‘sexual abuse of a minor’
[under § 2L1.2(b)(1)(A)(ii)]”).


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