                             REVISED July 3, 2013

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

                                                                      FILED
                                       No. 11-41090                   June 4, 2013

                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

SANTIAGO CASTRO-GONZALEZ,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-507-1


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Santiago Castro-Gonzalez appeals his sentence and conviction for illegal
reentry subsequent to the commission of an aggravated felony pursuant to
8 U.S.C. § 1326(a) and (b)(2). With respect to his sentence, Castro-Gonzalez
challenges the district court’s imposition of a 16-level crime-of-violence
enhancement based on his having committed the offense of attempted sexual


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 11-41090

assault under Texas Penal Code § 22.011.         With respect to his conviction,
Castro-Gonzalez argues that attempted sexual assault under § 22.011 is not an
“aggravated felony” for purposes of 8 U.S.C. § 1326(b)(2). For the reasons set
forth below, we AFFIRM Castro-Gonzalez’s sentence and conviction.
                                        I.
      In 1989, Castro-Gonzalez illegally entered the United States. Eight years
later, he was indicted in Waller County, Texas for burglary of a habitation, a
first-degree felony. In exchange for a favorable sentencing recommendation,
Castro-Gonzalez agreed to plead guilty to the third-degree felony of attempted
sexual assault. In Texas, the crime of “Sexual Assault” is codified at § 22.011 of
the Texas Penal Code.
      In 2004, Castro-Gonzalez was removed to his native Guatemala. On May
11, 2011, U.S. Border Patrol agents encountered Castro-Gonzalez in Brownsville,
Texas. He was charged in a one-count indictment with violating § 1326(a) and
(b)(2) by being found in the United States without permission following his
conviction of an aggravated felony and subsequent deportation. He pleaded
guilty of the offense without the benefit of a plea agreement.
      The presentence report (“PSR”) assigned Castro-Gonzalez a base offense
level of eight, with a three-level decrease for acceptance of responsibility. The
PSR also imposed a 16-level crime-of-violence increase pursuant to
§ 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines due to Castro-Gonzalez’s
attempted sexual assault conviction. Castro-Gonzalez’s total offense level of 21,
combined with his criminal history category of V, yielded a recommended
Guidelines range of 70-87 months of imprisonment.
      Castro-Gonzalez filed an objection to the PSR challenging the 16-level
crime-of-violence enhancement. He argued that some of the offenses codified as
sexual assault in Texas Penal Code § 22.011 do not qualify as crimes of violence
under the Guidelines. In support of his argument, Castro-Gonzalez pointed to


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                                       No. 11-41090

§ 22.011(b)(10), which provides that an actor engages in sexual conduct with
another without that person’s consent when “the actor is a clergyman who
causes the other person to submit or participate by exploiting the other person’s
emotional dependency on the clergyman in the clergyman’s professional
character as a spiritual advisor.” TEX. PENAL CODE § 22.011(b)(10).1 Castro-
Gonzalez asserted that a violation of § 22.011(b)(10) is not a crime of violence
and that therefore imposing the enhancement based on his Texas sexual assault
conviction, absent a showing by the government that he was convicted under a
different subsection, would be improper under the categorical approach. See,
e.g., United States v. Reyes-Mendoza, 665 F.3d 165, 167 (5th Cir. 2011) (noting
that under categorical approach used to determine applicability of sentencing
enhancement, “[w]here the record does not make clear the offender’s offense and
conviction, courts must ensure that the least culpable act that violates the
statute constitutes” the offense category relevant to the sentencing
enhancement).
       The government responded to Castro-Gonzalez’s objection by arguing that
§ 22.011(b)(10) falls within the scope of “forcible sex offenses,” which are among
the crimes of violence enumerated in Guidelines. See U.S.S.G. § 2L1.2 cmt. n.
1(B)(iii).   The government also introduced documents relating to Castro-
Gonzalez’s Texas attempted sexual assault conviction, including the indictment
for burglary of a habitation, and argued that, under the modified categorical
approach, the district court could use the documents to narrow the potential



       1
        Section 22.011(a)(1) of the Texas Penal Code generally criminalizes engaging in sexual
conduct with another without that person’s consent, while § 22.011(b) enumerates the
circumstances in which there is a lack of consent. At the time of Castro-Gonzalez’s conviction,
§ 22.011(b) enumerated ten such circumstances. See TEX. PENAL CODE § 22.011(b) (Vernon
1997). The current version of § 22.011(b) lists the same ten circumstances, but also adds an
eleventh: when the actor is an employee of a facility as defined by § 250.001 of the Texas
Health and Safety Code and the other person is a resident of the facility to whom the actor is
not married. TEX. PENAL CODE § 22.011(b)(11).

                                              3
                                  No. 11-41090

subsections of § 22.011 under which Castro-Gonzalez could have been convicted
to those other than § 22.011(b)(10). See United States v. Resendiz-Moreno, 705
F.3d 203, 205 (5th Cir. 2013) (“Under the ‘modified categorical approach’
employed by this Court, if a statute defines multiple crimes or contains
disjunctive elements, a limited inquiry into the charging documents is permitted
to determine which statutory variant of the crime was committed.”). Castro-
Gonzalez responded that the court could not use the modified categorical
approach because the indictment charged only burglary of a habitation, which
was not the ultimate offense of conviction. See United States v. Turner, 349 F.3d
833, 836 (5th Cir. 2003) (holding that where defendant pleaded guilty of lesser
included offense of the offense charged in indictment, court could not use the
indictment to determine which subsection of lesser included offense defendant
was convicted under); see also United States v. Bonilla, 524 F.3d 647, 652 (5th
Cir. 2008) (“Because the criminal information charges a crime of which Bonilla
was not convicted, it cannot be used to ‘pare down the statute of conviction to
determine under which subsection [Bonilla] pleaded guilty.’” (quoting United
States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007))). But see United
States v. Martinez-Vega, 471 F.3d 559, 562-63 (5th Cir. 2008) (holding that
district court did not plainly err in using indictment to narrow subsection under
which defendant pleaded guilty, where defendant pleaded guilty to “the lesser
charge contained in the Indictment” and indicated presentence report’s
recitation of facts concerning offense was accurate).
      After a hearing, the district court overruled Castro-Gonzalez’s objection
and held that the crime-of-violence enhancement was applicable. The court
found that it did not need to use the modified categorical approach, but instead
held that a violation of § 22.011 was a forcible sex offense under the categorical
approach.    The court sentenced Castro-Gonzalez to a 70-month term of
imprisonment, to be followed by a three-year term of supervised release.

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                                        No. 11-41090

       On appeal, Castro-Gonzalez renews his arguments that the district court
should not have imposed a 16-level crime-of-violence enhancement for his
attempted sexual assault conviction. In support of his argument, he cites not
only § 22.011(b)(10), but also § 22.011(b)(9), which provided that an actor
engages in sexual conduct with another without that person’s consent when “the
actor is a mental health services provider who causes the other person, who is
a patient or former patient of the actor, to submit or participate by exploiting the
other person’s emotional dependency on the actor.”                       TEX. PENAL CODE
§ 22.011(b)(9) (Vernon 1997).2 Additionally, Castro-Gonzalez argues for the first
time on appeal that the court erred in convicting him of illegal reentry following
a conviction for an aggravated felony under § 1326(b)(2) because his Texas
sexual assault conviction is not an aggravated felony.
                                               II.
                                               A.
       We review de novo whether the district court properly categorized a prior
offense as a crime of violence.3 United States v. Flores-Gallo, 625 F.3d 819, 821
(5th Cir. 2010). “[A]n offense qualifies as a crime of violence if it has physical
force as an element or qualifies as one of the enumerated offenses in the
Commentary.” United States v. Diaz-Corado, 648 F.3d 290, 293 (5th Cir. 2011)
(internal quotation marks omitted). In determining the applicability of a federal
sentencing enhancement, we first look to whether the scope of the offense
category “is clear from the language of the enhancement at issue or its applicable


       2
        The current version of § 22.011(b)(9) applies to “heath care services provider[s],” as
well as mental health services providers. See TEX. PENAL CODE § 22.011(b)(9).
       3
         The Government asserts that Castro-Gonzalez raises his argument based on
§ 22.011(b)(9) for the first time on appeal and that we should therefore review it for plain error
only. Because we conclude that Castro-Gonzalez’s arguments concerning both §§ 22.011(b)(9)
and 22.011(b)(10) fail under de novo review, we need not decide whether the plain error
standard applies. United States v. Quiroga-Hernandez, 698 F.3d 227, 228 n.2 (5th Cir. 2012).

                                                5
                                   No. 11-41090

commentary.” United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir. 2013) (en
banc). If so, the analysis ends there and we need not determine the “generic,
contemporary meaning” of the offense category. Id.
      The version of the Guidelines applicable to Castro-Gonzalez’s sentencing
lists among the enumerated crimes of violence: “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).” U.S.S.G.
§ 2L1.2 cmt. n. 1(B)(iii) (Nov. 2010). Prior to 2008, the Guidelines listed “forcible
sex offenses” among the enumerated crimes of violence without the clarifying
parenthetical. See, e.g., U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (Nov. 2007). In 2006,
a panel of this court considered whether a conviction under § 22.011 justified a
16-level crime-of-violence enhancement as a forcible sex offense. See generally
United States v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006). The panel
majority acknowledged prior Fifth Circuit case law that—in determining the
applicability of the crime-of-violence sentencing enhancement—distinguished
between sex offenses in which the victim neither legally consents nor factually
assents to the conduct and offenses in which the victim assents but does not
legally consent, such as when the victim assents due to a mental disability. See
id. at 322-23 (citing United States v. Sarmiento-Funes, 374 F.3d 336, 339-45 (5th
Cir. 2004)). Taking particular note of §§ 22.011(b)(9) and 22.011(b)(10), the
panel majority concluded that § 22.011 of the Texas Penal Code “criminalizes
assented-to-but-not-consented-to conduct.” Id. at 322-23. Over the dissent of
Judge Owen, the panel majority found that prior case law compelled it to hold
that not every violation of § 22.011 is a forcible sex offense under the Guidelines.
Id. at 323.
      On November 1, 2008, the Guidelines were amended so that the words
“forcible sex offenses” were followed by a clarifying parenthetical that reads:
“(including where consent to the conduct is not given or is not legally valid, such

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as where consent to the conduct is involuntary, incompetent, or coerced).” See
U.S.S.G. App. C, amend. 722 (Nov. 2008). The background commentary to the
Amendment states that the revisions are meant to “result in an outcome that is
contrary to cases excluding crimes in which there may be assent in fact but no
legally valid consent from the scope of ‘forcible sex offenses.’” Id. (internal
quotation marks omitted).              Following this statement, the background
commentary contains a citation identifying Luciano-Rodriguez as one of the
cases reaching a result contrary to that intended by the revised Guidelines and
describing the case as holding that “a conviction for a sexual assault was not a
forcible sex offense because it could have been based on assent . . . when ‘the
actor is a member of the clergy or is a mental health services provider who
exploits the emotional dependency engendered by their position.’” Id. (quoting
Luciano-Rodriguez, 422 F.3d at 323).
       The background commentary makes clear that the post-Amendment
Guidelines yield a result different from Luciano-Rodriguez’s holding that
violations of §§ 22.011(b)(9) and 22.011(b)(10) are not forcible sex offenses. As
stated by Judge Owen, “the Commission has unequivocally explained in its
commentary that it intends for such sexual assault convictions under Texas law
to be included within the meaning of ‘forcible sex offenses’ and the accompanying
parenthetical explanation and therefore that such an assault constitutes a ‘crime
of violence.’” Rodriguez, 711 F.3d at 566 (Owen, J., concurring).4 Because it is
“clear from the language of the enhancement [and] its applicable commentary”
that §§ 22.011(b)(9) and 22.011(b)(10) fall within the scope of forcible sex
offenses under the post-2008 Guidelines, we reject Castro-Gonzalez’s arguments


       4
         Following the 2008 Amendment, a panel of this court held that pre-Amendment Fifth
Circuit case law concerning the scope of “forcible sex offenses” was not applicable to sentences
imposed after the 2008 revisions. See United States v. Rodriguez-Juarez, 631 F.3d 192, 194
(5th Cir. 2011); see also Diaz-Corado, 648 F.3d at 294. Accordingly, we are not bound by
Luciano-Rodriguez’s holding that § 22.011 is not a forcible sex offense under the Guidelines.

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                                  No. 11-41090

based on those subsections and affirm his sentence. Id. at 552. We note that
other panels of this court that have considered similar statutes in light of the
2008 Amendment have reached the same result. See United States v. Garza-
Guijan, 714 F.3d 332, 334 (5th Cir. 2013) (holding that Florida sexual battery
offense in which “‘consent’ means intelligent, knowing, and voluntary consent
and does not include coerced submission” was forcible sex offense under
amended Guidelines); United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011)
(holding that Arkansas offense of engaging in sexual contact “with another
person who is incapable of consent because the person is physically helpless,
mentally defective, or mentally incapacitated” was forcible sex offense under
amended Guidelines).
                                        B.
      Castro-Gonzalez also challenges his conviction pursuant to § 1326(b)(2) for
illegal reentry following the commission of an aggravated felony on the ground
that not all violations of the Texas sexual assault statute qualify as aggravated
felonies.   He argues that he should instead have been convicted under
§ 1326(b)(1), which imposes a 10-year maximum term of incarceration for illegal
reentry following a conviction for a nonaggravated felony. 8 U.S.C. § 1326(b)(1).
The maximum term of imprisonment under § 1326(b)(2) is 20 years. 8 U.S.C.
§ 1326(b)(2). Because Castro-Gonzalez raises this claim for the first time on
appeal, we consider it under the plain error standard of review. United States
v. Compian-Torres, 712 F.3d 203, 206 (5th Cir. 2013). “Plain error review
requires four determinations: whether there was error at all; whether it was
plain or obvious; whether the error affected the defendant’s substantial rights;
and whether this court should exercise its discretion to correct the error in order
to prevent a miscarriage of justice.” United States v. Cancino-Trinidad, 710 F.3d
601, 605 (5th Cir. 2013) (quoting United States v. Dominguez-Alvarado, 695 F.3d
324, 328 (5th Cir. 2012)).

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                                  No. 11-41090

      8 U.S.C. § 1101(a)(43) defines “aggravated felony” as, among other things,
a “crime of violence.” See 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16, in turn,
defines “crime of violence” as:
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or

      (b) any other offense that is a felony and that, by its nature, involves
      a substantial risk that physical force against the person or property
      of another may be used in the course of committing the offense.
18 U.S.C. § 16. As with sentencing enhancements, we use the categorical
approach to determine whether an offense qualifies as a crime of violence under
§ 16. United States v. Gracia-Cantu, 302 F.3d 308, 312 (5th Cir. 2002). If,
however, “the defendant’s prior conviction is under a statute that identifies
several separate offenses, some violent and others not . . . we apply the modified
categorical method.” United States v. Echeverria-Gomez, 627 F.3d 971, 975 (5th
Cir. 2010) (internal quotation marks omitted). The government’s and Castro-
Gonzalez’s arguments concerning the conviction mirror the arguments they
make regarding the sentencing enhancement. The government argues that the
conviction can be affirmed under the categorical approach because the offenses
codified at §§ 22.011(b)(9) and 22.011(b)(10) qualify as crimes of violence under
§ 16 and alternatively that the conviction can be affirmed under the modified
categorical approach because the indictment makes clear that Castro-Gonzalez
was convicted under a subsection of § 22.011 that qualifies as a crime of violence.
Castro-Gonzalez maintains that not all offenses codified at § 22.011 are crimes
of violence under § 16 and that we cannot use the modified categorical approach
to affirm the conviction because Castro-Gonzalez was indicted for burglary of
habitation, not attempted sexual assault.
      A divided panel of this court recently held that §§ 22.011(b)(9) and
22.011(b)(10) are not crimes of violence under § 16. Rodriguez v. Holder, 705

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                                  No. 11-41090

F.3d 207, 215-16 (5th Cir. 2013). Accordingly, it would have been error for the
district court to hold under the categorical approach that Castro-Gonzalez’s
Texas Sexual Assault conviction qualified as a crime of violence under § 16 and
the error would have been plain. See Henderson v. United States, 133 S. Ct.
1121, 1130-31 (2013) (holding that plainness of error is assessed by reference to
the law at the time of appeal, not at the time of trial).    As Castro-Gonzalez
concedes, however, under United States v. Mondragon-Santiago, 564 F.3d 357,
369 (5th Cir. 2009), he cannot show that any error by the district court affected
the court’s sentencing decision because his properly-calculated, 70-month
sentence falls below the 10-year maximum sentence for a violation of
§ 1326(b)(1) and there is nothing in the record to suggest that the 20-year
maximum for a violation of § 1326(b)(2) influenced the district court’s sentencing
decision. Accordingly, Castro-Gonzalez has failed to show that the apparent
error in his conviction affected his substantial rights. See id. (“Even if we
assume the error is plain, it did not affect Mondragon-Santiago’s substantial
rights.”).
      Although the panel in Mondragon-Santiago reformed the judgment
against the defendant to reflect conviction under § 1326(b)(1), we decline to do
so in this case. In Mondragon-Santiago, the government stipulated that the
defendant should have been convicted under § 1326(b)(1) rather than
§ 1326(b)(2) and itself requested reformation of judgment. Id. at 367. Here,
however, the government has not done so. Nor do we think it is likely that the
government would stipulate to reformation in light of the intervening Rodriguez
v. Holder decision, since the government maintains that Castro-Gonzalez’s
conviction could be affirmed under the modified categorical approach. We do not
reach the merits of that argument, but instead hold that even if the district court
erred in convicting Castro-Gonzalez under § 1326(b)(2), the error did not affect



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his substantial rights and that therefore he is entitled to no relief on his plain-
error challenge to his conviction.
AFFIRMED




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