     Case: 13-50788      Document: 00512869114         Page: 1    Date Filed: 12/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-50788                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 15, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

OSCAR RENE MARTINEZ,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-348-1


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Oscar Rene Martinez (“Martinez”) appeals his
sentence of 41 months of imprisonment based on his conviction for unlawful
reentry into the United States in violation of 8 U.S.C. § 1326. Martinez argues
that the district court committed plain error in applying a 16-level
enhancement pursuant to United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii) for Martinez’s alleged commission of a “crime
of violence” based on his prior conviction under New Jersey law for fourth



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50788
degree lewdness, N.J. State. Ann. § 2C:14-4b(1). For the following reasons, we
VACATE Martinez’s sentence and REMAND for RESENTENCING.
                                BACKGROUND
      In 2013, Martinez pleaded guilty to one count of illegal reentry in
violation of 8 U.S.C. § 1326 without the benefit of a plea agreement. The
presentence investigation report (“PSR”) calculated a base offense level of eight
pursuant to U.S.S.G. § 2L1.2(a).      It then recommended adding a 16-level
increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on its determination that
Martinez’s New Jersey lewdness conviction qualified as a “crime of violence.”
Finally, the PSR recommended subtracting three levels for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense
level of twenty-one. This total offense level, coupled with a criminal history
category of III, resulted in a recommended range of imprisonment of 46 to 57
months.
      At sentencing, Martinez argued that his criminal history category should
be adjusted downward because it was premised in part on a 2010 weapons
possession offense, which arose from an incident that had escalated as a result
of Martinez’s inability to understand English. Based on this explanation, the
district court adjusted Martinez’s criminal history category from III to II.
      In addition, Martinez objected to the 16-level crime of violence
enhancement recommended in the PSR. That objection, however, was made
off-the-record and the specific basis of Martinez’s objection is therefore unclear.
When the parties went back on the record, Martinez’s counsel stated that a
petition for writ of certiorari had been filed in the Supreme Court regarding a
prior en banc case of this Court, United States v. Rodriguez, 711 F.3d 541 (5th
Cir.) (en banc), cert denied, 134 S. Ct. 512 (2013) and that “assuming the
Supreme Court does address that, we would object in hope of preserving that


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                                  No. 13-50788
objection for future relief.”   No further details regarding the grounds of
Martinez’s objection were provided.
      In resolving Martinez’s objection, the district court stated, “the 16-level
increase . . . will stand for right now . . . unless the Supreme Court rules
otherwise.” The district court then calculated Martinez’s Guidelines range as
falling between 41 to 51 months and sentenced Martinez to the lowest term of
imprisonment within that range. This appeal followed.
                          STANDARD OF REVIEW
      Ordinarily, this Court reviews “the district court’s application and
interpretation of the sentencing guidelines de novo and its factual findings for
clear error.” United States v. Gonzales–Terrazas, 529 F.3d 293, 296 (5th Cir.
2008). Under this standard, the issue of whether the district court properly
characterized a prior criminal conviction as a “crime of violence” under the
Sentencing Guidelines presents a legal question subject to de novo review.
Rodriguez, 711 F.3d at 548; United States v. Olalde–Hernandez, 630 F.3d 372,
373 (5th Cir. 2011). However, whereas here a criminal “defendant has failed
to make his objection to the guidelines calculation sufficiently clear, the issue
is considered forfeited,” and the Court reviews for plain error. See United
States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). The parties
agree that plain error review is appropriate in this case.
      Under plain error review, this Court may reverse a trial court’s decision
if the following requirements are met: “(1) there was an error; (2) the error was
clear and obvious; and (3) the error affected the defendant’s substantial rights.”
United States v. Medina–Torres, 703 F.3d 770, 774 (5th Cir. 2012) (per curiam)
(internal quotations omitted); accord United States v. Gracia–Cantu, 302 F.3d
308, 310 (5th Cir. 2002). If these three elements are satisfied, the Court may
exercise its discretion to remedy the error if it “seriously affects the fairness,


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                                    No. 13-50788
integrity, or public reputation of judicial proceedings.” Medina–Torres, 703
F.3d at 774 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
                                   DISCUSSION
      Applying the first prong of the plain error analysis, we first determine
whether there was an error. A defendant convicted of illegal reentry is subject
to a substantial Guidelines enhancement if he was convicted of a “crime of
violence” prior to his deportation. Rodriguez, 711. F.3d at 548 (citing U.S.S.G.
§ 2L1.2(b)(1)(A)(ii)); United States v. Izaguirre–Flores, 405 F.3d 270, 272 (5th
Cir. 2005). The application notes to § 2L1.2 of the Guidelines defines “crime of
violence” by reference to a list of enumerated generic offenses, which includes
amongst them “sexual abuse of a minor.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n.
1(B)(iii). This appeal concerns whether Martinez’s conviction for fourth degree
lewdness fits within the definition of “sexual abuse of a minor.”
      To determine whether a defendant’s prior conviction under state law
qualifies as a crime of violence under the Guidelines, we use the categorical
approach articulated by the Supreme Court in Taylor v. United States, 495 U.S.
575 (1990). Rodriguez, 711. F.3d at 549; Gonzales–Terrazas, 529 F.3d at 296-
97. Under this approach, our analysis is grounded in the statute of conviction
“not the defendant’s underlying conduct.” United States v. Calderon–Pena, 383
F.3d 254, 257 (5th Cir. 2004) (en banc) (per curiam). “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.’” United States v. Amaya, 576 F. App’x 416, 419 (5th Cir. 2014)
(per curiam) (quoting Moncrieffe v. Holder, ___U.S. ___, 133 S.Ct. 1678, 1684
(2013)); see also United States v. Carrasco–Tercero, 745 F.3d 192, 198 (5th Cir.
2014) (“[T]he categorical approach assumes that the defendant committed the
least culpable act to satisfy the count of conviction . . . .”).


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                                  No. 13-50788
      Pursuant to this Court’s en banc decision in United States v. Rodriguez,
where the Guidelines enhancement turns on the meaning of an offense
category that is not defined at common law, as is the case here, we “determine[]
the ‘generic, contemporary meaning’” of the triggering offense for purposes of
the analysis. Rodriguez, 711. F.3d at 552. In making this determination, we
employ a “plain-language approach, relying on the common meaning of terms
as stated in legal and other well-accepted dictionaries.” Id. at 550, 552; see
also Izaguirre–Flores, 405 F.3d at 275; United States v. Zavala–Sustaita, 214
F.3d 601, 604-05 (5th Cir. 2000). Once we determine the meaning of the
relevant offense category, we “look to the elements of the state statute of
conviction and evaluate whether those elements comport” with the generic
meaning of the offense. Rodriguez, 711 F.3d at 552-53. “If the state definition
. . . is broader than the generic definition [of the offense category], a conviction
under that state’s law cannot serve as a predicate for the crime of violence
enhancement.” United States v. Garcia–Figueroa, 753 F.3d 179, 187 (5th Cir.
2014) (internal quotations omitted).
      “To demonstrate that the state definition is broader than the generic
definition [of the offense category], the defendant must show more than a ‘mere
theoretical possibility’ that the statute of conviction criminalizes conduct that
does not fall within” the meaning of the Guidelines offense. Id. (internal
quotations omitted). Rather, pursuant to the Supreme Court’s decision in
Gonzales v. Duenas–Alvarez a defendant must show a “realistic probability . . .
that the State would apply its statute to conduct that falls outside the generic
definition of [the] crime.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193
(2007). “To show a realistic probability, an offender must at least point to his
own case or other cases in which the state courts in fact did apply the statute
in the special manner for which he argues.” United States v. Teran–Salas, 767
F.3d 453, 460 (5th Cir. 2014) (alterations and internal quotations omitted); see
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                                       No. 13-50788
also United States v. Ortiz–Gomez, 562 F.3d 683, 687 (5th Cir. 2009); United
States v. Moreno–Florean, 542 F.3d 445, 456 (5th Cir. 2008).
       Martinez’s lewdness conviction was the result of his plea of guilty to N.J.
Stat. Ann. § 2C:14-4b(1), which provides:
       b. A person commits a crime of the fourth degree if:
       (1) He exposes his intimate parts for the purpose of arousing or
       gratifying the sexual desire of the actor or of any other person
       under circumstances where the actor knows or reasonably expects
       he is likely to be observed by a child who is less than 13 years of
       age where the actor is at least four years older than the child.
He argues that this statute does not qualify as a crime of violence because it
criminalizes conduct that does not fall within the generic meaning of “sexual
abuse of a minor.”           Specifically, Martinez contends that the generic,
contemporary meaning of the term “abuse,” requires a minor to be actually, or
at least constructively, present for the lewd act and to experience harm.
According to Martinez, the statute under which he was convicted criminalizes
conduct that falls outside this definition. We agree.
       We have repeatedly interpreted the term “abuse” to include a component
of harm to a minor. See United States v. Duron–Rosales, No. 13-41093, 2014
WL 6357180, at *2 (Nov. 17, 2014) (per curiam) (unpublished) (“Conduct is
‘abusive’ if it ‘involves taking undue or unfair advantage of the minor and
causing    such    minor psychological—if not              physical—harm.’”) (quoting
Izaguirre–Flores, 405 F.3d at 275-76); Zavala–Sustaita, 214 F.3d at 604-05
(abuse involves “wrongly and improperly using the minor and thereby harming
the minor”); 1 see also Olalde-Hernandez, 630 F.3d at 375; United States v.
Balderas–Rubio, 499 F.3d 470 (5th Cir. 2007); United States v. Najera–Nejera,


       1  Although the Zavala-Sustaita Court construed the phrase “sexual abuse of a minor”
as it is used in 8 U.S.C. § 1101(a)(43) rather than in U.S.S.G. § 2L1.2, we have held that the
“generic meaning” of the phrase is the same in both contexts. United States v. Najera-Nejera,
519 F.3d 509, 512 n.2 (5th Cir. 2008).
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                                   No. 13-50788
519 F.3d 509, 512 (5th Cir. 2008). On its face, the New Jersey statute under
which Martinez was convicted criminalizes behavior that does not include such
harm. An individual may be convicted of the offense if he commits lewd acts
when he is only “likely to be observed by a child.” N.J. Stat. Ann. § 2C:14-4b(1).
Put another way, the fourth degree lewdness statute may be violated where no
actual minor is present and where no actual minor is harmed.
       New Jersey case law confirms that there is a “realistic possibility” that
the statute is applied consistent with its plain language. See e.g., State v.
Zeidell, 713 A.2d 401, 409 (N.J. 1998) (explaining that the sine qua non of
lewdness is the “subjective belief by the actor that he or she is being viewed”)
(emphasis added)); State v. Breitweiser, 861 A.2d 176, 185 (N.J. Super. Ct. App.
Div. 2004) ([T]o sustain a conviction for fourth-degree lewdness . . . “[i]t is
sufficient that the evidence show . . . that . . . the actor knows or reasonably
expects he is likely to be observed . . . . Actual victim observation is not
required.”) (internal quotations omitted)). Indeed, one New Jersey appellate
court upheld a conviction by construing the statute in the precise manner that
Martinez indicates. See State v. Roman, 2012 WL 1123542 (N.J. Super. Ct.
App. Div. April 5, 2012) (per curiam).        In that case, the court upheld a
defendant’s conviction under § 2C:14-4b(1) where it was undisputed that no
child was actually present during the defendant’s lewd activity. See id. at *4.
In doing so, the court relied on the New Jersey Supreme Court’s statement in
Zeidell, that the statute required only that “the actor . . . expose . . . himself or
herself knowing or reasonably expecting that an underage child will observe
the conduct.” Id. at *3 (quoting Zeidell, 713 A.2d at 408) (alterations and
quotation marks omitted). No victim’s actual observation was required. Id. at
*4.
       Based on the plain language of the statute and New Jersey case law
interpreting it, we find that there is a realistic probability that Martinez’s
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                                  No. 13-50788
lewdness conviction does not fall within the generic meaning of “sexual abuse
of a minor.” For this reason the application of the sixteen-level “crime of
violence” enhancement to his sentence was error.
      We also find that this error was plain in the sense that it was clear. As
discussed, our precedent interpreting the term “abuse” to include a component
of harm to a minor is well established, and one need not look much further
than the face of the New Jersey statute itself to conclude that this component
is absent. See N.J. Stat. Ann. § 2C:14-4b(1). At oral argument, the government
suggested that the error in this case was not clear because the only New Jersey
case to squarely determine that a minor need not actually exist for a violation
to occur is the unpublished New Jersey appellate court decision State v.
Roman.    According to the government, an unpublished decision does not
sufficiently demonstrate the realistic possibility requirement for purposes of
plain error.
      However, we have found the realistic possibility requirement met
without the benefit of a specific state decision on point in circumstances where
the plain language of the statute clearly criminalized conduct outside of the
Guidelines offense. See United States v. Ortiz–Gomez, 562 F.3d 683, 685-87
(5th Cir. 2009) (holding that “it is apparent from its face” that a Pennsylvania
arson statute lacked the element of a “use of force” and there was therefore “a
realistic probability that Pennsylvania courts would” interpret the defendant’s
statute of conviction to apply to conduct that was not a crime of violence
(footnote omitted)). Further, we have found the clear and obvious element of
plain error satisfied, albeit in a different sentencing context, based on the clear
language of the defendant’s statute of conviction. See United States v. Maturin,
488 F.3d 657, 663 (5th Cir. 2007) (“While this court has never expressly
determined that the crime of concealing assets in a bankruptcy proceeding does
not have a scheme, conspiracy, or pattern of criminal activity as an element,
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                                   No. 13-50788
. . . it is indisputably clear from a reading of the plain statutory language . . . .
We therefore find that the district court’s error was plain.”). Thus, where “it is
apparent from its face” that the statute of conviction applies to conduct outside
of the generic Guidelines definition, it is hard to understand how the error
cannot be clear. See Ortiz–Gomez, 562 F.3d at 685.
      Nor is it apparent why an unpublished state decision—which
demonstrates that a state has in fact applied a statute in a manner broader
than the generic definition of the Guidelines offense—is insufficient to
demonstrate a realistic possibility that the statute would be applied in this
overbroad manner. We have previously considered unpublished state cases in
conducting the categorical inquiry. See e.g., United States v. Sanchez–Torres,
136 F. App’x 644, 647 (5th Cir. 2005) (per curiam); United States v. Lee, 310
F.3d 787, 791 (5th Cir. 2002). This makes good sense. “In determining the
actual application of a statute, a conviction is a conviction, regardless of the
manner in which it is reported.” Nicanor–Romero v. Mukasey, 523 F.3d 992,
1005 (9th Cir. 2008) (discussing the role of unpublished decisions in the
categorical analysis), overruled on other grounds by Marmolejo–Campos v.
Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc); see also Leal v. Holder, __
F.3d __, 2014 WL 5742137, at *3 (9th Cir. Nov. 6, 2014). Indeed, as the
Supreme Court has observed, “criminal justice today is for the most part a
system of pleas,” see Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012), and a
decision of a state’s appellate court, therefore, is potentially indicative of
numerous instances in which the state’s prosecuting authority has secured
convictions from conduct that falls outside of the generic definition of a
Guidelines offense.
      Accordingly, whereas here, it is apparent from its plain language, that a
statute criminalizes conduct outside what we have repeatedly held is required
by the definition of a Guidelines offense, and state court decisions interpret the
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                                      No. 13-50788
statute consistent with this plain language, the application of the Guidelines
enhancement to the statute constitutes clear error.
       We also find that the error in this case affected Martinez’s substantial
rights and deem it appropriate to exercise our discretion to correct the error to
maintain the fairness and integrity of the proceeding. “A sentencing error
affects a defendant’s substantial rights if he can show ‘a reasonable probability
that but for the district court’s misinterpretation of the Guidelines, he would
have received a lesser sentence.” United States v. Garcia–Montejo, 570 F.
App’x 408, 413 (5th Cir. 2014) (per curiam) (alterations omitted) (quoting
Gonzales–Terrazas, 529 F.3d at 284).              The erroneous application of the
Guidelines enhancement here resulted in a recommended range of 41 to 51
months. Without the enhancement, Martinez would have faced a range of only
8 to 14 months. 2 We have found sentencing errors that resulted in less of a
disparity to have affected a defendant’s substantial rights and corrected them
on plain error review. See Gonzales–Terrazas, 529 F.3d at 298-99; United
States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (per curiam).
       Further, the district court gave Martinez the lowest possible sentence
available under the incorrect guidelines range and adjusted his criminal
history category from III to II.         The court’s comments during sentencing
indicate that it would have been willing to revisit Martinez’s sentence if the
Supreme Court altered our Court’s precedent. Under these circumstances it
seems likely that the district court would have given Martinez a different
sentence absent the Guidelines misinterpretation.



       2 We conduct this analysis assuming that Martinez’s prior weapons possession
conviction constituted a felony under U.S.S.G. § 2L1.2(b)(1)(D). The record, however, does
not confirm this assumption and so the 8 to 14 month guidelines range we utilize is for
purposes of analysis only. If Martinez’s weapons possession conviction was not a felony, the
resulting guidelines range without the erroneous enhancement would have been 1 to 7
months.
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                                 No. 13-50788
      The government argues that we should not exercise our discretion to
correct the error in this case because the fairness and integrity of the judicial
proceeding, according to the government, was not implicated by the district
court’s error. In support of this argument, the government invites us to rely
on a section of the PSR that references allegations in a criminal information,
which charged Martinez with a different crime than the lesser offense to which
he pleaded and was convicted. This criminal information allegedly contained
allegations that a child may have been present at the time Martinez committed
his lewd acts. The criminal information is not included in the record and the
documents that compose the judgment of conviction to the actual offense to
which Martinez pleaded do not make any reference to these allegations.
      Even when employing a modified categorical analysis, an analysis which
no party argues should apply to this case, the Supreme Court has instructed
that a sentencing court is confined to the narrow set of documents that compose
the record of conviction. See Descamps v. United States, 133 S. Ct. 2276, 2283-
84 (2013); Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S.
at 602.   Following this precedent, we have recognized that the record of
conviction is necessarily limited to “records made or used in adjudicating” the
defendant’s guilt. Teran–Salas, 767 F.3d at 459; accord United States v.
Bonilla, 524 F.3d 647, 652 (5th Cir. 2008). These limitations are not mere
contrivances, they are grounded in “Sixth Amendment concerns . . . and the
practical difficulties and potential unfairness of a [non-categorical] factual
approach.” Descamps, 133 S. Ct. at 2287 (internal quotation marks omitted).
Thus, because the criminal information referenced in the PSR related to a
different statute under which Martinez neither plead nor was convicted, we
are prohibited from considering it in this case.
      We fail to see how doing that which the Supreme Court and our own
precedent expressly prohibit will preserve the fairness and integrity of a
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                                       No. 13-50788
proceeding that is otherwise affected by error. 3 We therefore decline to rely on
references in the PSR to documents that do not compose the record of
conviction. Accordingly, we find the final prong of the plain error test satisfied.
                                     CONCLUSION
       For these reasons, we VACATE Martinez’s sentence and REMAND for
RESENTENCING.




       3  Nor can Martinez be faulted for failing to object to the PSR’s mere reference to the
criminal information where neither the PSR nor the district court purported to rely on it in
applying the Guidelines. A defendant cannot be expected to interpose an objection where no
error has occurred. See United States v. Escalante–Reyes, 689 F.3d 415, 422 (5th Cir. 2012)
(en banc) (explaining that the “contemporaneous objection rule is, in part, intended to prevent
lawyers from deliberately withholding an objection in an effort to gain another ‘bite at the
apple’”).

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