     Case: 13-40488      Document: 00512557706         Page: 1    Date Filed: 03/11/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40488
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 11, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellee
v.

RAFAEL CABRERA-CANALES,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-2083-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rafael Cabrera-Canales (“Canales”) pleaded guilty without a written
plea agreement to illegal reentry after deportation. He appeals his within-
guidelines sentence, challenging the sixteen-level enhancement he received for
a “crime of violence” (“COV”). We AFFIRM.
       Following Canales’s guilty plea, a pre-sentence report (PSR) was
prepared in which a base offense level of eight was assessed pursuant to U.S.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2(a) (2012). The PSR
then enhanced that base offense level by sixteen levels pursuant to
§ 2L1.2(b)(1)(A)(ii), on the ground that Canales’s 2006 Connecticut conviction
under Connecticut General Statutes § 53-21 for “risk of injury to a minor” was
a COV. The district court concluded that the prior conviction was a COV
because it constituted the enumerated offense of “sexual abuse of a minor.”
Canales challenges this determination on two grounds: (1) he contends that
the documentation the Government provided is insufficient to show under
which subsection of section 53-21 he was convicted; and (2) even if the
documentation shows that he was convicted under subsection 53-21(a)(2), this
subsection is “overbroad” such that his conviction does not fit within the
“generic, contemporary meaning” of the phrase “sexual abuse of a minor.” We
address each argument in turn.
      The PSR relied upon the following documents to establish Canales’s
conviction: (1) a document entitled “Instructions to Clerk,” which was signed
by the assistant clerk, reflecting a judgment against Canales for violating
CONN. GEN. STAT. § 53-21(a)(2) and sentence of two years and one day of
imprisonment and five years of “special parole”; (2) a “Long Form Criminal
Information Worksheet,” which was signed by prosecutor, clerk, and the judge,
reflecting that Canales entered a plea of nolo contendere and was adjudged
guilty of violating CONN. GEN. STAT. § 53-21(a)(2) and was sentenced to two
years and one day of imprisonment and five years of special parole; and (3) a
document entitled “Title, Allegation and Counts,” signed by the Assistant State
Attorney, reflecting that Canales was charged with risk of injury to a minor,
in violation of CONN. GEN. STAT. § 53-21 (Count One) and sexual assault, first,
in violation of CONN. GEN. STAT. § 53a-70 (Count Two). The district court found
that the Probation Office had secured the equivalent of a judgment in the form


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                                       No. 13-40488
of the “Long Form Criminal Information Worksheet,” which reflected that the
statute of conviction was CONN. GEN. STAT. § 53-21(a)(2).
       Canales contends that the Connecticut documents are insufficient to
show that he was convicted of any specific subsection of section 53-21; he also
contends that because he pleaded “nolo contendere” rather than “guilty,” these
documents cannot be used to narrow his offense conduct. Contrary to Canales’s
assertion, a district court may consider state adjudicative documents to
determine the proof of existence of the prior conviction. See United States v.
Neri-Hernandes, 504 F.3d 587, 591–92 (5th Cir. 2007).                     Further, as the
challenged documents here were not used to narrow section § 53-21 based upon
the facts underlying Canales’s offense, Shepard v. United States, 544 U.S. 13
(2005), does not apply. See 504 F.3d at 591; United States v. Moreno-Florean,
542 F.3d 445, 449–50 & n.1 (5th Cir. 2008) (using the defendant’s indictment
and a California abstract of judgment to prove the existence of a prior
conviction, where the abstract of judgment was not being used to narrow the
statute of conviction based upon the facts underlying the offense). Rather, they
were relied upon by the district court to establish of which subsection of CONN.
GEN. STAT. § 53-21 Canales was convicted. 1
       Under the circumstances of the present case, as in Moreno-Florean, 542
F.3d at 449–50 & n.1, and Neri-Hernandes, 504 F.3d at 590–92, the state
adjudicative documents, and especially the Long Form Criminal Information
Worksheet, which was signed by the trial judge and which the district court
found to be the equivalent of a judgment, were properly used to determine that



       1  Canales argues that Neri-Hernandes is not good law because it contradicted the
holding of a prior case, Omari v. Gonzalez, 419 F.3d 303 (5th Cir. 2005). Omari, however,
involved the use of documents to determine the facts of the offense, while Neri-Hernandes
involved the use of documents that directly identified the statutory subsection of conviction,
making the cases distinguishable. Compare Omari, 419 F.3d at 308–09, with Neri-
Hernandes, 504 F.3d at 590–92.
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Canales pleaded nolo contendere to violating CONN. GEN. STAT. § 53-21(a)(2).
Thus, the district court’s finding that the adjudicative documents, and
especially the Long Form Criminal Information Worksheet, reflected the
statute of conviction as CONN. GEN. STAT. § 53-21(a)(2) was not clearly
erroneous. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011)
(a district court’s factual findings in sentencing are reviewed for clear error). 2
       Turning to the question of whether the Connecticut conviction
constitutes “sexual abuse of a minor,” section 53-21(a)(2) states: “Any person
who . . . (2) has contact with the intimate parts . . . of a child under the age of
sixteen years or subjects a child under sixteen years of age to contact with the
intimate parts of such person, in a sexual and indecent manner likely to impair
the health or morals of such child . . . [commits an offense].” CONN. GEN. STAT.
ANN. § 53-21(a)(2) (West 2005). In the district court, Canales argued that
“intimate parts” was not adequately defined and could include the child’s head,
feet, or hands. The district court overruled this objection, noting “[i]ntimate
parts [under Connecticut law was] defined as the genitalia area, groin, anus,
inner thighs, buttocks or breast,” see CONN. GEN. STAT. ANN. § 53a-65 (West
2005), and that section 53-21(a)(2) included contact with the intimate parts “in
a sexual and indecent manner likely to impair the health or morals of [a] child,”
see CONN. GEN. STAT. ANN. § 53-21(a)(2).
       On appeal, Canales makes an argument not specifically raised to the
district court: 3 that contact with a minor’s “intimate parts” “in a sexual and


       2  Canales’s argument that his plea of nolo contendere does not admit facts is
irrelevant. The entry of a nolo plea does not affect the result of this case because the relevant
question under the Guidelines is whether the defendant has a conviction for a COV, not
whether he has admitted to being guilty of such a crime. See U.S.S.G. § 2L1.2(b)(1)(A).

       3  Canales’s written objection was that this was not a “drug trafficking offense.” At
the sentencing hearing, his counsel explained that this was a mistake and he meant to object
to the documentation. His counsel further argued: “I have to speak as to what he was really
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indecent manner likely to impair the health or morals of such child” is not
“abuse” within the meaning of “sexual abuse of a minor.” Accordingly, we
review this contention for plain error. See United States v. Chavez-Hernandez,
671 F.3d 494, 497 (5th Cir. 2012).
       We recently examined how to approach the definition of “sexual abuse of
a minor.” See United States v. Rodriguez, 711 F.3d 541 (5th Cir.) (en banc),
cert. denied, 134 S. Ct. 512 (2013). We clarified the method used to determine
“the ‘generic, contemporary meaning’ of non-common-law offense categories
enumerated in the federal sentencing enhancements” and adopted a “plain-
meaning” approach. Id. at 552. Under that approach, this court first must
identify the enumerated offense categories that trigger the sentencing
enhancement and determine whether the meaning of the offense categories is
apparent from the language of the relevant enhancement or its applicable
commentary. Id. at 552, 557–58. If the meaning is unclear, this court must
assess whether the offense categories are defined under common law. Id. at
552, 558–59. If the offense categories are not defined under common law, this
court must derive their “‘generic, contemporary meaning’” from their “common
usage as stated in legal and other well-accepted dictionaries.” Id. at 552, 559–
61. Finally, this court must look to the state statute of conviction and assess
whether “those elements comport with the generic meaning of the enumerated
offense category.” Id. at 552–53, 562.
       We have previously held that the term “abuse” “involve[s] either physical
or psychological harm to the minor.” United States v. Izaguirre-Flores, 405
F.3d 270, 275 (5th Cir. 2005); see also Rodriguez, 711 F.3d at 562. We conclude



charged with in this case. I also have a serious question as to the side of it as being brought
to us. What are intimate parts? You know . . . that could mean the head, the feet[], the hands
of a child? So . . . I wanted to make clear that I’m objecting to this enhancement based on
what we have here.”
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that it is not error, plain or otherwise, to determine that touching the “intimate
parts” of a minor “in a sexual and indecent manner likely to impair the health
or morals of such child” involves at least “psychological harm,” sufficient to
constitute “abuse” within the meaning of the Guidelines. 4 See United States v.
Chacon, 742 F.3d 219 (5th Cir. 2014) (holding that “intentional touching [by or
to a minor] of the victim’s or actor’s genital, anal, or other intimate area for
sexual arousal or gratification” constitutes “sexual abuse of a minor” (quoting
MD. CODE ANN., CRIM. LAW §§ 3-301(a)(3), 3-307(f) (2002))); cf. State v. Thomas
W., 974 A.2d 19, 28 (Conn. App. Ct. 2009) (“The general purpose of § 53-21 is
to protect the physical and psychological well-being of children from the
potentially harmful conduct of adults.” (citation and internal quotation marks
omitted)).
      AFFIRMED.




      4   As Canales concedes, his argument that an age-differential requirement is
necessary for “sexual abuse of a minor” is foreclosed. Rodriguez, 711 F.3d at 562 n.28.
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