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

                                                                            FILED
                                                                        September 8, 2008
                                       No. 08-40176
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

JUAN GERARDO VALDEZ-BARRIENTOS,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:07-cr-1019


Before JOLLY, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Juan Valdez-Barrientos was convicted below of illegal reentry
into the United States in violation of 8 U.S.C. § 1326(a)-(b). Prior to being
deported, Barrientos was convicted of indecency with a child in violation of Texas
Penal Code § 21.11(a)(1). Equating “indecency with a child” under Texas law
with “sexual abuse of a minor” for purposes of § 2L1.2 of the Federal Sentencing
Guidelines, the district court enhanced Barrientos’ offense level by sixteen and
imposed a sentence of seventy-eight months’ imprisonment.




       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Rule
47.5.4.
                                  No. 08-40176

      Barrientos contends that § 21.11(a)(1) proscribes conduct beyond that
falling within the ordinary and contemporary meaning of “sexual abuse of a
minor,” and therefore that his prior conviction under that statute is not a
legitimate basis for a crime-of-violence enhancement under the Guidelines.
Specifically, he argues that the definition of “child” under § 21.11(a)—a person
less than seventeen years of age—is inconsistent with the contemporary and
ordinary meaning of “minor” because, for purposes of many states’ statutory rape
laws, a person’s “age of consent” is deemed to be sixteen. See generally United
States v. Lopez-Deleon, 513 F.3d 472 (5th Cir. 2008) (discussing when children
reach the age of consent under various states’ statutory rape laws).
      As Barrientos admits, we have already addressed the issue of whether a
violation of § 21.11(a) constitutes sexual abuse of a minor for purposes of § 2L1.2;
in answering in the affirmative, we have stated that “‘a child younger than 17
years[]’ is clearly a ‘minor.’” United States v. Zavala-Sustaita, 214 F.3d 601, 604
(5th Cir. 2000) (quoting § 21.11(a)); see also United States v. Najera-Najera, 519
F.3d 509, 511 (5th Cir. 2008) (relying on Zavala-Sustaita in stating “under
generic-meaning analysis, a person younger than 17 years old is a ‘child’”).
Because our precedent forecloses Barrientos’ argument, the judgment of the
district court is AFFIRMED.




                                         2
