     Case: 15-40386      Document: 00513337390         Page: 1    Date Filed: 01/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-40386                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 11, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JOEL LOBATO-ORTEGA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-643


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Joel Lobato-Ortega appeals the 41-month sentence he received for illegal
reentry after deportation. Lobato-Ortega maintains the district court erred by
applying a 16-level “crime of violence” enhancement for his prior Louisiana
sexual battery conviction. He further maintains that this error improperly
raised the statutory maximum term for his sentence. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40386
                                          I.
      On August 11, 2014, Border Patrol pulled over a vehicle near La Gloria,
Texas, in which Lobato-Ortega was a passenger. Lobato-Ortega had previously
been deported on August 18, 2011, and did not obtain permission to return to
the country. He was apprehended and subsequently pleaded guilty to illegal
reentry after deportation and conviction of a felony under 8 U.S.C. § 1326(a)
and (b).
      The district court ordered the preparation of a presentence report
(“PSR”). The PSR stated that Lobato-Ortega’s base offense level was 8. It
further applied a 16-level enhancement under United States Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(ii) (“U.S.S.G.”) because Lobato-Ortega’s
prior sexual battery conviction 1 qualified as a crime of violence. The PSR
reduced the offense by 3 levels for acceptance of responsibility, yielding a total
offense level of 21. With a criminal history category of II, the Guidelines range
was 41 to 51 months.
      In his objection to the PSR, Lobato-Ortega maintained that the 16-level
enhancement was improper because his previous conviction did not qualify as
a crime of violence. The district court disagreed and applied the enhancement.
It subsequently sentenced Lobato-Ortega to 41-months of imprisonment,
which was at the bottom of the resulting Guidelines range. Lobato-Ortega
appealed.
                                          II.
      Under the Sentencing Guidelines, an individual convicted of illegal
reentry is subject to a 16-level enhancement if he was previously convicted of
a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to this



      1  In 2011, Lobato-Ortega was convicted of sexual battery under Louisiana Revised
Statute § 14:43.1(A)(1).
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                                       No. 15-40386
provision defines “[c]rime of violence” as including “sexual abuse of a minor.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). We review de novo whether a prior conviction
qualifies as a crime of violence under the Sentencing Guidelines. United States
v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).
       Lobato-Ortega argues that his sexual battery conviction is not a crime of
violence because Louisiana Revised Statute § 14:43.1(A) does not constitute
sexual abuse of a minor. 2 Lobato-Ortega’s argument is foreclosed by United
States v. Vigil, 774 F.3d 331, 335–36 (5th Cir. 2014), cert. denied, 135 S. Ct.
1883 (2015), in which we explicitly held that the least culpable act 3
constituting a violation of § 14:43.1(A) qualifies as sexual abuse of a minor
under the Guidelines. 4 Vigil, 774 F.3d at 334-36 (applying Rodriguez, 711 F.3d



       2 At the time of Lobato-Ortega’s conviction for sexual battery, the statute provided, in
relevant part:
       A. Sexual battery is the intentional engaging in any of the following acts with
       another person where the offender acts without the consent of the victim, or
       where the act is consensual but the other person, who is not the spouse of the
       offender, has not yet attained fifteen years of age and is at least three years
       younger than the offender:
       (1) The touching of the anus or genitals of the victim by the offender using any
       instrumentality or any part of the body of the offender; or
       (2) The touching of the anus or genitals of the offender by the victim using any
       instrumentality or any part of the body of the victim.
       La. Stat. Ann. § 14:43.1 (2008).
       3 Where the charging statute contains disjunctive subsections, as is the case with
Louisiana Revised Statute § 14:43.1(A), we must determine which of the statute’s alternative
elements is the basis of the conviction by referencing the adjudicative documents. United
States v. Mohr, 554 F.3d 604, 607 (5th Cir. 2009). In United States v. Vigil—as is the case
here—there was no conclusive evidence of the subsection under which the defendant was
convicted. 774 F.3d at 335, cert. denied, 135 S. Ct. 1883 (2015). Accordingly, in Vigil we
presumed the defendant committed the least culpable act that would be a violation of §
14:43.1. Id. at 335 (citing United States v. Espinoza, 733 F.3d 568, 572 (5th Cir. 2013)).
       4  Vigil concerned a version of Louisiana Revised Statute § 14:43.1 that became
effective in 2011, while Lobato-Ortega was convicted under the 2008 version of the statute.
In the district court, Lobato-Ortega acknowledged that the 2011 version was materially the
same as the 2008 version, but was merely organized differently. On appeal, he does not argue
that the 2011 amendment to the statute makes Vigil inapplicable.
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                                   No. 15-40386
at 552–53). Lobato-Ortega essentially maintains, however, that Vigil is not
determinative because it violates the rule of orderliness, under which “one
panel of our court may not overturn another panel’s decision, absent an
intervening change in the law . . . .” Jacobs v. Nat’l Drug Intelligence Ctr., 548
F.3d 375, 378 (5th Cir. 2008). We disagree.
      Lobato-Ortega argues that in deriving the generic, contemporary
meaning of “sexual abuse of a minor” under the third step of the categorical
approach, Vigil conflicts with earlier cases defining “sexual” and “abuse.” This
is incorrect. In Vigil, we noted that “‘[s]exual’ is defined as ‘[o]f, pertaining to,
affecting, or characteristic of sex, the sexes, or the sex organs and their
functions.’” 774 F.3d 334 (quoting Contreras v. Holder, 754 F.3d 286, 294 (5th
Cir. 2014) (quoting United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th
Cir. 2000))). Furthermore, we relied on precedent defining “‘abuse’ as ‘to take
unfair or undue advantage of’ or ‘to use or treat so as to injure, hurt, or
damage.’” Id. (quoting United States v. Cortez-Cortez, 770 F.3d 355, 358 (5th
Cir. 2014) (quoting United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th
Cir. 2005))). Finally, we utilized Black’s Law Dictionary’s definition of “sexual
abuse”—“‘an illegal or wrongful sex act, esp. one performed against a minor by
an adult.’” Vigil, 774 F.3d at 334 (quoting BLACK’S LAW DICTIONARY (9th ed.
2009)). “We have repeatedly endorsed [this definition].” Id. (citing Contreras,
754 F.3d at 294; Cortez-Cortez, 770 F.3d at 358); see Rodriguez, 711 F.3d at 552
(“[I]f the offense category is a non-common-law offense category, then we derive
its ‘generic, contemporary meaning’ from its common usage as stated in legal
and other well-accepted dictionaries.”).
      It is clear that in Vigil we did not ignore our precedent, but rather were
well informed by it.       In fact, we have subsequently relied on Vigil’s
interpretation of “sexual abuse of a minor.” See United States v. Irias, No. 15-


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                                        No. 15-40386
40085, 2015 WL 5817643, at *1 (5th Cir. Oct. 6, 2015) (citing Vigil, 774 F.3d at
334).
        Lobato-Ortega’s argument that the term “sexual” requires that conduct
must have sexual gratification or arousal as its purpose is similarly unavailing.
We have found such motivation sufficient but not necessary.                          See, e.g.,
Izaguirre-Flores, 405 F.3d at 275; Zavala-Sustaita, 214 F.3d at 604; see also
Cortez-Cortez, 770 F.3d at 358 (“We have also found that an act is ‘sexual’ if it
has ‘sexual arousal or gratification as its purpose.’”). 5 Accordingly, Vigil did
not violate the rule of orderliness. Because we have already determined that
Louisiana Revised Statute § 14:43.1 is a crime of violence under the Guidelines,
we conclude the district court did not err when it applied the 16-level “crime of
violence” enhancement when sentencing Lobato-Ortega.
        Lobato-Ortega also appeals his conviction under 8 U.S.C. § 1326(b)(2) on
the grounds that his prior sexual battery conviction does not qualify as an
aggravated felony. Section 1326(b)(2) defines “aggravated felony” as including
“sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), and we interpret this
phrase the same way under both § 1326(b) and the Guidelines, United States
v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. 2008). Accordingly, for the
reasons stated above, we also affirm Lobato-Ortega’s conviction under
§ 1326(b)(2).
        AFFIRMED.




        5Lobato-Ortega also argues, for the first time on appeal, that § 14:43.1 does not
constitute sexual abuse of a minor because it encompasses conduct that is not abusive.
Because Lobato-Ortego did not raise this issue in the district court, we review for plain error.
Puckett v. United States, 556 U.S. 129, 135 (2009). In light of Vigil, any error was not “plain.”
See United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir. 2009).

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