                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           MAY 13, 2011
                             No. 10-14238
                                                            JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 8:09-cr-00567-RAL-TBM-1

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

VICENTE CASILLAS-CANTERO,


                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (May 13, 2011)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Vicente Casillas-Cantero appeals his 48-month sentence for illegal reentry

by a deported alien previously convicted of an aggravated felony, in violation of 8

U.S.C. § 1326(a), (b)(2). Casillas-Cantero argues (1) that the district court erred in

relying on United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001), to

determine that his conviction pursuant to Fla. Stat. § 800.04(1), for fondling a

minor, qualified as “sexual abuse of a minor,” and (2) that even if § 800.04(1)

constitutes “sexual abuse of a minor,” it cannot be considered a “crime of

violence” within the meaning of United States Sentencing Guidelines

§ 2L1.2(b)(1)(A) (Nov. 2009), without violating the plain meaning of that term, as

defined in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), Johnson

v. United States, --- U.S.---, 130 S. Ct. 1265, 1271 (2010); and United States v.

Harris, 608 F.3d 1222, 1233 (11th Cir. 2010). After careful review, we affirm.

                                           I.

      Casillas-Cantero first argues that Padilla-Reyes was inapplicable to his case

because it had been decided before a significant amendment to § 2L1.2(b)(1)(A).

Although the Sentencing Guidelines are now advisory after the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the

district court is still obligated to calculate the applicable guideline range correctly.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). We review de novo

                                           2
whether a defendant’s prior conviction qualifies as a “crime of violence” under the

Sentencing Guidelines. United States v. Llanos-Agostadero, 486 F.3d 1194, 1196

(11th Cir. 2007).

      Section 2L1.2(b)(1)(A) of the Sentencing Guidelines provides for a 16-level

increase in the offense level if the defendant was previously deported after “a

conviction for a felony that is . . . a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The commentary to that guideline provision defines “crime

of violence” as any of the following offenses under federal, state, or local law:

      murder, manslaughter, kidnapping, aggravated assault, forcible sex
      offenses (including 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), statutory rape, sexual abuse of a minor,
      robbery, arson, extortion, extortionate extension of credit, burglary of a
      dwelling, 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.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added). “It is well settled that a

felony conviction for an enumerated offense qualifies as a ‘crime of violence’

under § 2L1.2, whether or not the use of physical force is an element of the

crime.” United States v. Palomino Garcia, 606 F.3d 1317, 1327 (11th Cir. 2010).

      At the time that Casillas-Cantero was charged, § 800.04(1) read:

      Lewd, lascivious, or indecent assault or act upon or in the presence of
      child. –A person who:

                                           3
             (1)   Handles, fondles, or assaults any child under the age of 16
                   years in a lewd, lascivious, or indecent manner . . . without
                   committing the crime of sexual battery, commits a felony
                   of the second degree.

Flat. Stat. § 800.04(1) (1997). In Padilla-Reyes, we held that a violation of

§ 800.04(1), with or without victim contact, constitutes “sexual abuse of a minor”

within the meaning of § 2L1.2. 247 F.3d at 1163–64. We interpreted “sexual

abuse of a minor” to mean “a perpetrator’s physical or nonphysical misuse or

maltreatment of a minor for a purpose associated with sexual gratification.” Id. at

1163. We recognized that violations of Fla. Stat. § 800.04 might not involve any

physical contact with the victim, but concluded that all possible violations, even

those where “the only elements are that the child was under the age of sixteen and

that the defendant knowingly committed a lewd or lascivious act that the child saw

or sensed,” involve the misuse or maltreatment of a child for sexual gratification,

and thus constitute “sexual abuse of a minor.” Id. at 1162–63 & n.5.

      Nevertheless, Casillas-Cantero argues that Padilla-Reyes does not control,

because in that case we analyzed an earlier version of § 2L1.2. The earlier version

of § 2L1.2 provided for a 16-level increase in offense level based on the

commission of an “aggravated felony,” which the commentary defined by

reference to 8 U.S.C. § 1101(a)(43). 247 F.3d at 1159; see U.S.S.G. § 2L1.2 (Nov.



                                          4
1998). That statutory provision, in turn, defined “aggravated felony” to include

“sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Following a significant

amendment in 2001, the current version of § 2L1.2 provides for a 16-level

increase in offense level based on the commission of a “crime of violence,” which

as explained above, is expressly defined in the commentary to § 2L1.2 to include

“sexual abuse of a minor.” See U.S.S.G. § 2L1.2 & cmt. n.1(B)(iii) (Nov. 2009).

       We reject Casillas-Cantero’s argument that this amendment renders

Padilla-Reyes inapplicable to his case. Padilla-Reyes held that § 800.04 fell

within the plain meaning of the term “sexual abuse of a minor.” 247 F.3d at

1163–64. Although that term now appears explicitly in the commentary to

§ 2L1.2, rather than applying by reference to 8 U.S.C. § 1101(a)(43), nothing in

the amendment has suggested a change in its definition.1 As a result, the district

court did not err in finding that, under Padilla-Reyes, Casillas-Cantero’s

conviction for violating § 800.04(1) was a conviction for “sexual abuse of a

minor.”2


       1
          To be sure, the amendment potentially changes the consequences of a finding that an
offense is a “sexual abuse of a minor,” by now labeling that offense as a “crime of violence”
instead of an “aggravated felony.” But, the result is the same in this case because the 16-level
enhancement that previously applied to an “aggravated felony” now applies to a “crime of
violence.”
       2
         Casillas-Cantero also argues that the district court erred in failing to conduct a
categorical analysis under Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990) and

                                                 5
                                                II.

       Casillas-Cantero also argues that the definition of “crime of violence”

provided in the commentary to § 2L1.2 violates the plain meaning of the term, as it

has been defined in Begay, 553 U.S. at 141–42, 128 S. Ct. at 1584, Johnson, ---

U.S.---, 130 S. Ct. at 1271; and Harris, 608 F.3d at 1233. The commentary to the

Sentencing Guidelines is “authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915

(1993).

       Begay, 553 U.S. at 141–42, 128 S.Ct. at 1584, Johnson, --- U.S. ---, 130 S.

Ct. at 1271, and Harris, 608 F.3d at 1232–33, employed a “categorical approach”

to determine whether certain offenses qualified as “violent felon[ies]” under the

ACCA. The ACCA defines a “violent felony” as an offense that:


Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005). “Athough Taylor and Shepard
were [Armed Career Criminal Act (“ACCA”)] cases, we have employed their ‘categorical
approach’ in determining whether a prior offense qualifies for an enhancement under the
Guidelines.” Palomino Garcia, 606 F.3d at 1328. But while Padilla-Reyes may not have fully
defined the contours of the generic offense of “sexual abuse of a minor” to the extent necessary
to resolve cases involving offenses under other statutes, that case implicitly defined the generic
offense to the degree necessary to conclude that a violation of the then-existing version of
§ 800.04—the statute at issue in both that case and this one—qualified as a “sexual abuse of a
minor.” Because we find that Padilla-Reyes continues to control, we are bound by that case’s
holding. See United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010) (“[U]nder the
prior precedent rule, we are bound to follow a prior binding precedent unless and until it is
overruled by this court en banc or by the Supreme Court.” (quotation marks omitted)).

                                                 6
      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B). We have explained that “[c]onsidering whether a crime

is a ‘violent felony’ under the ACCA is similar to considering whether a

conviction qualifies as a ‘crime of violence’ under U.S.S.G. § 4B1.2(a) because

the definitions for both terms are virtually identical.” United States v. Alexander,

609 F.3d 1250, 1253 (11th Cir. 2010) (quotation marks omitted). But Begay,

Johnson, and Harris do not necessarily control here because this case involves

neither the ACCA nor § 4B1.2(a), but instead turns on the definition of a “crime of

violence” that applies to § 2L1.2.

      While the text of § 2L1.2 itself provides no definition of “crime of

violence,” the commentary to § 2L1.2 defines that term very differently from

§ 4B1.2(a) and the ACCA. As relevant here, the commentary specifically

enumerates “sexual abuse of a minor” as a “crime of violence,” under § 2L1.2,

even though that offense is not enumerated as a crime of violence under

§ 4B1.2(a) or as a violent felony under the ACCA. We recognize the potential for

confusion that might arise from applying two different definitions of crime of



                                          7
violence in two different Guidelines chapters, but this is plainly what the

Guidelines contemplate insofar as the two sections provide different definitions.3

Moreover, as we have previously explained, “[i]t is well settled that a felony

conviction for an enumerated offense qualifies as a ‘crime of violence’ under

§ 2L1.2.” Palomino Garcia, 606 F.3d at 1327.

       Because we cannot say that the distinct definition of “crime of violence”

provided in the commentary to § 2L1.2 is a plainly erroneous reading of the

Guideline, that definition is still “authoritative.” See Stinson, 508 U.S. at 38, 113

S. Ct. at 1915. Thus, the district court did not err by relying on the commentary to

the Guidelines in imposing the 16-level enhancement under U.S.S.G. § 2L1.2. For

all of these reasons, we affirm Casillas-Cantero’s sentence.

       AFFIRMED.




       3
          We acknowledge that this Court has previously stated that “there is no meaningful
distinction between the definition of a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1) . . . , the
definition of a “crime of violence” under § 4B1.2(a) . . . , or the definition of a ‘crime of
domestic violence’ under 18 U.S.C. § 922(g)(9).” Llanos-Agostadero, 486 F.3d at 1197–98. But
that observation in Llanos-Agostadero was made in the context of analyzing the “elements
clause” of § 2L1.2 cmt n.1(B)(iii), which mirrors language in § 4B1.2(a) and the ACCA. Id. at
1197. This case turns not on the “elements clause,” but instead on the list of enumerated
offenses in § 2L1.2 cmt n.1(B)(iii), which differs markedly from the list of enumerated offenses
in § 4B1.2(a) and the ACCA.

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