     Case: 11-41186     Document: 00511951307         Page: 1     Date Filed: 08/09/2012




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

                                                                            FILED
                                                                           August 9, 2012
                                     No. 11–41186
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN FLORES RODRIGUEZ, also known as Lopez Barajas, also known as
Grabiel R. Flores, also known as Francis Javier, also known as Martin Flores,
also known as Mauricio Garcia, also known as Francis Javier Lopezbarajas, also
known as Martin Flores-Rodriguez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2771-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Martin Flores Rodriguez (Flores) appeals his sentence following his guilty
plea conviction for being found illegally present in the United States after
deportation. Flores challenges the imposition of a 16-level enhancement, which
was based on a finding that his prior California conviction for sexual battery by
restraint qualified as a crime of violence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11–41186

      Because Flores did not object to the enhancement in the district court, we
review his claim for plain error. See United States v. Gutierrez, 635 F.3d 148, 152
(5th Cir. 2011). To show plain error, Flores must show an error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      The Sentencing Guidelines provide for an increase of 16 levels when a
defendant was previously deported after a conviction for a crime of violence.
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The definition of a crime of violence in the
Commentary to § 2L1.2 lists various enumerated offenses, including “forcible sex
offenses” or “any other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” § 2L1.2 cmt. n.1(B)(iii). The term “forcible sex offenses”
specifically includes offenses “where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary, incompetent,
or coerced.” Id. This language was added “to make it clear that forcible sex
offenses, like all offenses enumerated in Application Note 1(B)(iii), are always
classified as crimes of violence, regardless of whether the prior offense expressly
has as an element the use, attempted use, or threatened use of physical force
against the person of another.” United States v. Diaz-Corado, 648 F.3d 290, 293
(5th Cir. 2011) (internal quotation marks and citation omitted).
      The Government supplemented the record with state court documents
which establish that Flores was convicted under CALIFORNIA PENAL CODE
§ 243.4(a). Although we have not specifically addressed whether § 243.4(a)
constitutes a crime of violence, we have held that similar statutes from other
states do qualify as forcible sex offenses, and consequently as an enumerated
offense, pursuant to the definitions in the Commentary. See United States v.
Herrera, 647 F.3d 172, 176–180 (5th Cir. 2011) (Arkansas offense of sexual

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                                   No. 11–41186

conduct by forcible compulsion); Diaz-Corado, 648 F.3d at 293 (Colorado offense
of unlawful sexual contact). We found in Diaz-Corado that because the
defendant’s conduct “necessarily involved” non-consensual sexual contact, the
defendant’s conviction “falls squarely within” the Sentencing Guidelines’
definition of a forcible sex offense. Id. In the instant case, the California statute
also requires non-consensual sexual contact. See § 243.4(a) (requiring, in part,
that the sexual touching be “against the will of the person touched”).
      Because we have not specifically held that § 243.4(a) does not qualify as
a crime of violence, and because we have held that similar statutes do qualify as
a crime of violence, we conclude that Flores has not met his burden to show that
the district court plainly erred when it imposed a 16-level enhancement to
Flores’s sentence. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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