     Case: 10-40586 Document: 00511414474 Page: 1 Date Filed: 03/17/2011




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

                                                 FILED
                                                                           March 17, 2011
                                     No. 10-40586
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

RUBEN ESPARZA-ANDRADE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1357-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Ruben Esparza-Andrade appeals the 50-month sentence he received
following his guilty plea conviction for illegal reentry into the United States after
having previously been deported, in violation of 8 U.S.C. § 1326. Esparza-
Andrade argues that the district court erred in applying a 16-level “crime of
violence” enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), based on his prior
Michigan conviction for attempted second-degree criminal sexual conduct. He
specifically asserts that the enhancement was improper because the prior
conviction could not be classified as “sexual abuse of a minor,” an enumerated


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40586 Document: 00511414474 Page: 2 Date Filed: 03/17/2011

                                  No. 10-40586

crime of violence offense, and because Michigan’s definition of “attempt” was
broader than the generic, contemporary definition of “attempt.”
      The district court’s characterization of a prior offense as a “crime of
violence” is a question of law that we review de novo.          United States v.
Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006). Section 2L1.2 of the
Guidelines provides that the offense level for unlawfully entering or remaining
in the United States shall be increased by 16 levels if the defendant has a prior
conviction for a “crime of violence.” § 2L1.2(b)(1)(A)(ii). The commentary to
§ 2L1.2 defines a “crime of violence” as (1) any specific enumerated offense,
including “sexual abuse of a minor,” “forcible sex offenses,” and “statutory rape”;
or (2) “any 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, comment. (n.1(B)(iii)).
      To determine whether a specific state offense constitutes an enumerated
offense under § 2L1.2(b)(1)(A)(ii), this court uses a “common sense approach.”
See United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. 2007). This
court gives the enumerated offense its “ordinary, contemporary, [and] common
meaning.” Id. After determining the generic and contemporary meaning of the
offense, we compare it to the statute of conviction. See Santiesteban-Hernandez,
469 F.3d at 379. “If the defendant was convicted under a statute following the
generic definition with minor variations, or a statute narrower than the generic
crime, the sentence enhancement may be applied.” Id. However, if the statute
of conviction prohibits behavior that is not within the plain, ordinary meaning
of the enumerated offense, the prior offense is not a “crime of violence.” Mungia-
Portillo, 484 F.3d at 816.
      The Michigan statute at issue reads, in relevant part, as follows:
      (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:


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                                  No. 10-40586

      (a) That other person is under 13 years of age.
M ICH. C OMP. L AWS A NN. § 750.520c(1)(a) (2003). Michigan defines sexual contact
as including:
      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 sexual purpose, or in a sexual
      manner for:
            (I) Revenge.
            (ii) To inflict humiliation.
            (iii) Out of anger.
M ICH. C OMP. L AWS A NN. § 750.520a(n) (2003). Intimate parts includes “the
primary genital area, groin, inner thigh, buttock, or breast of a human being.”
M ICH. C OMP. L AWS A NN. § 750.520a(c) (2003).
      In order for a statute to conform to the generic, contemporary meaning of
“sexual abuse of a minor,” the statute must criminalize conduct with the
following three elements: (1) the conduct must involve a “child”; (2) the conduct
must be “sexual” in nature; and (3) the sexual conduct must be “abusive.” See
United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008) (citing United
States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th Cir. 2000)). This court has
noted that under the “generic-meaning analysis, a person younger than 17 years
old is a ‘child.’” Id. at 511-12. Under the plain and ordinary meaning of the
word, the Michigan statute criminalizes conduct that is “sexual” in nature. See
id. (analyzing a similar Texas statute).       Moreover, the sexual conduct is
“abusive” because of the psychological harm that children suffer from even non-
physical sexual contact with adults. See Zavala-Sustaita, 214 F.3d at 605.
Accordingly, Esparza-Andrade’s Michigan statute of conviction criminalizes
conduct that can be properly categorized as “sexual abuse of a minor,” an




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                                  No. 10-40586

enumerated crime of violence offense.       See § 2L1.2, comment. (n.1(B)(iii));
Najera-Najera, 519 F.3d at 511-12; Zavala-Sustaita, 214 F.3d at 604-08.
      Esparza-Andrade’s assertion that Michigan’s statute defining “attempt”
is overly broad is unmeritorious.      Current circuit law indicates that the
definition of “attempt” need not be separately analyzed because an analysis of
the elements of the statute prohibiting the underlying crime is sufficient for
classification purposes. See United States v. Cervantes-Blanco, 504 F.3d 576,
579-87 (5th Cir. 2007) (stating that its analysis was not affected by the fact that
defendant was convicted of an attempt rather than the completed offense).
Moreover, the Guidelines do not distinguish between an attempt and a
successfully completed crime for purposes of determining whether an offense is
a “crime of violence.” See § 2L1.2, comment. (n.5) (noting that prior convictions
for crimes counted under § 2L1.2(b)(1) for sentencing enhancement purposes
“include the offenses of aiding and abetting, conspiring, and attempting, to
commit such offenses”). In addition, Esparza-Andrade does not meet his burden
of demonstrating a realistic probability that Michigan would actually apply its
“attempt” statute in a manner that fell outside of the generic, contemporary
meaning of “attempt.” See United States v. Hernandez-Galvan, -- F.3d --, No. 09-
40872, 2011 WL 285222, at *5-*6 (5th Cir. Jan. 31, 2011); United States v.
Ramos-Sanchez, 483 F.3d 400, 403-04 (5th Cir. 2007).
      AFFIRMED.




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