                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0256n.06
                                Filed: April 6, 2007

                                               Case No. 05-1119

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                      )
                                                                )
             Plaintiff-Appellee,                                )
                                                                )        ON APPEAL FROM THE
                    v.                                          )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE EASTERN
 JUAN JOSE GAYTAN,                                              )        DISTRICT OF MICHIGAN
                                                                )
       Defendant-Appellant.                                     )
 _______________________________________                        )

BEFORE: BATCHELDER, MOORE, and BALDOCK,* Circuit Judges.

         ALICE M. BATCHELDER, Circuit Judge. Juan Jose Gaytan appeals from the judgment

of the District Court for the Eastern District of Michigan, sentencing him to 46 months in prison for

a violation of 8 U.S.C. §§ 1326(a) & (b)(2). We affirm.

                                                          I.

         Mr. Gaytan is a Mexican citizen who came to the United States illegally in 1992. In 1999,

at age 22, he was arrested for touching the breast of a 12-year old girl, though he claimed to be

rebuffing her sexual advances. A jury in a Michigan court convicted him of Criminal Sexual

Conduct - 2nd Degree, in violation of M.C.L.A. § 750.520c(1)(a).1 The court sentenced him to 365



         *
          The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.

         1
          “A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact
with another person and if any of the following circumstances exists: (a) That other person is under 13 years of
age[.]” M.C.L.A. § 750.520c(1)(a).
No. 05-1119
United States v. Gaytan

days in county jail, followed by immediate deportation and three years of probation.

        Mr. Gaytan was released from jail on June 8, 2001, and deported on June 12, 2001. While

in Mexico, he contacted the court in Michigan and moved for an early discharge of his probation,

which the court granted on November 6, 2001. Shortly thereafter, in November or December 2001,

he returned to the United States illegally.

        On January 15, 2004, Mr. Gaytan was arrested and charged with Reentry After Deportation,

in violation of 8 U.S.C. §§ 1326(a) & (b)(2).2 The statutory maximum sentence for this offense is

20 years, there is no statutory minimum, and he was informed of this at the plea hearing. He was

represented by counsel and pled guilty without a Rule 11 Agreement.

        The court computed an offense level under the Sentencing Guidelines: a base offense level

of eight that was enhanced by sixteen (16) due to his prior conviction for a “crime of violence,” and

then reduced by three (3) for acceptance of responsibility. The recommended range for this level was

46 to 57 months. The court sentenced Mr. Gaytan to 46 months in prison. Mr. Gaytan appealed.

                                                           II.

        Mr. Gaytan argues that because his prior offense did not involve the use of force and the



        2
            This statute has two applicable provisions:
        Subject to subsection (b) of this section, any alien who - - (1) has been . . . deported . . . and
        thereafter (2) enters . . . the United States . . . shall be fined under Title 18, or imprisoned not
        more than 2 years, or both.
8 U.S.C. § 1326(a).
        Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection
        - - . . . (2) whose removal was subsequent to a conviction for commission of an aggravated felony,
        such alien shall be fined under such Title, imprisoned not more than 20 years, or both.
8 U.S.C. § 1326(b)(2).

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United States v. Gaytan

statute under which he was convicted did not include as an element of the offense the use of force,

the trial court erred by categorizing his prior offense as a “crime of violence” and consequently

applying a 16-level enhancement. We disagree. A “crime of violence” includes “forcible sex

offenses, statutory rape, and sexual abuse of a minor.” U.S.S.G. § 2L1.2 (Application Note

1(B)(iii)). Sex crimes against children qualify as crimes of violence, regardless of whether the use

of force is an element. United States v. Munguia-Sanchez, 365 F.3d 877, 879-80 (10th Cir. 2004);

see also United States v. Rojas-Carollo, No. 04-1743, 2005 WL 3077130, at *5 (6th Cir. Nov. 17,

2005) (holding Michigan Criminal Sexual Conduct - 4th Degree to be a crime of violence for

purposes of the sentencing enhancement). A jury had previously convicted Mr. Gaytan of Criminal

Sexual Conduct - 2nd Degree, in violation of M.C.L.A. § 750.520c(1)(a), which prohibits sexual

contact with a person under 13 years of age. Under the statute,

       ‘Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate
       parts or the intentional touching of the clothing covering the immediate area of the
       victim’s or actor’s intimate parts, if that intentional touching can reasonably be
       construed as being for the purpose of sexual arousal or gratification, done for a sexual
       purpose, or in a sexual manner for:
       (i) Revenge.
       (ii) To inflict humiliation.
       (iii) Out of anger.

M.C.L.A. § 750.520.a(o); see also People v. Fisher, 257 N.W.2d 250, 254 (Mich. App. 1977) (“The

actor must touch a genital area intentionally, but he need not act with the purpose of sexual

gratification.”). Clearly, the crime for which the jury convicted Mr. Gaytan constituted sexual abuse

of a minor, which is a crime of violence regardless of the fact that force is not an element.

                                                 III.


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United States v. Gaytan

        Mr. Gaytan argues that the court erred by denying his Equal Protection challenge to the

government’s “Fast Track” program. We disagree. Under the Prosecutorial Remedies and Other

Tools to End Exploitation of Children Act (PROTECT Act), Pub. L. No. 108-21, 401(m)(2)(B), 117

Stat. 650, 675 (1993), the U.S. Attorney General and the U.S. Attorney for a particular district can

agree to certify that district as a “fast track,” which is essentially a standardized plea bargaining

scheme.3 Under U.S.S.G. § 5K3.1, the government can offer up to four levels of downward

departure in exchange for a pre-indictment guilty plea, forbearance of pretrial motions or discovery,

and expedited sentencing and removal following sentence. To date, the government has only

certified certain districts in California, Arizona, New Mexico, and Texas. Mr. Gaytan argued that

his inability to obtain a downward departure deprived him of equal protection under the law.

        The district court construed the fast track program as a matter of prosecutorial discretion and,

citing Wade v. United States, 504 U.S. 181, 185-86 (1992), held that it would not apply strict

scrutiny unless Mr. Gaytan could prove an unconstitutional motive. Because Mr. Gaytan could not

do so, the court instead used the rational basis test, and concluded both that the Government has a

legitimate interest in conserving and allocating law enforcement resources (e.g., police, prosecutors,

judges, jails) in districts that are burdened with illegal aliens, and that the program is rationally

related to that goal. See, e.g., United States v. Melendez-Torres, 420 F.3d 45, 52-53 (1st Cir. 2005)



        3
            The “fast track” programs are promulgated by the Sentencing Commission:
        Upon motion of the Government, the court may depart downward not more than 4 levels pursuant
        to an early disposition program authorized by the Attorney General of the United States and the
        United States Attorney for the district in which the court resides.
U.S. Sentencing Guidelines Manual § 5K3.1 (2004); see also Pub.L. 108-21 § 401(m)(2)(B), 117 Stat. 650 (2003).

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United States v. Gaytan

(“[T]he U.S. Attorney General and the U.S. Attorney for the District of Maine . . . could very well

find that the low volume of crimes involving illegal aliens in Maine, as compared to southwestern

states, enable them to put their resources to better use.”). We reach the same conclusion.

                                                   IV.

        Mr. Gaytan argues that the court erred by failing to inform him of the elements of the offense

before it accepted his guilty plea. We disagree. If a defendant fails to object contemporaneously to

the district court’s alleged failure to comply with the requirements of Federal Rule of Criminal

Procedure 11, we review any alleged error in Rule 11 compliance for plain error. United States v.

Vonn, 535 U.S. 55, 59 (2002); United States v. Webb, 403 F.3d 373, 379 (6th Cir. 2005).

        Mr. Gaytan asserts that the Information charged him with unlawfully reentering the country

after being deported for commission of an “aggravated felony,” but the court instead sentenced him

based on commission of a “crime of violence.” He contends that these are different, in that a “crime

of violence” requires an additional element, and therefore his plea was not made knowingly and he

has a right, based on Blakely v. Washington, 542 U.S. 296 (2004), to have a jury determine whether

his antecedent offense is a “crime of violence.” One need not unravel this knot to inspect its illogic

strand by strand. This claim is foreclosed by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(“Other than the fact of a prior conviction, . . . .”), Blakely, 542 U.S. at 301 (same), and United States

v. Booker, 543 U.S. 220, 233 (2005). The Sentencing Guidelines categorize Mr. Gaytan’s prior

conviction as a “crime of violence.” Mr. Gaytan does not dispute that he pled guilty to the illegal

reentry with full knowledge that the underlying crime was the Criminal Sexual Conduct offense for

which he previously served a year in jail. An attempt to disprove the violence “element” at this

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United States v. Gaytan

proceeding is an attempt to reopen that criminal case, an endeavor that Apprendi and Blakely

expressly preclude.

                                              V.

       For the foregoing reasons, we AFFIRM the decisions of the district court.




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       KAREN NELSON MOORE, Circuit Judge, concurs in the judgment.




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