     Case: 11-41258       Document: 00512008203         Page: 1    Date Filed: 10/03/2012




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

                                                                            FILED
                                                                           October 3, 2012

                                         No. 11-41258                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee
v.

JUAN QUIROGA-HERNANDEZ, also known as Juan Pablo Robles-
Hernandez,

                                                    Defendant - Appellant



                      Appeal from the United States District Court
                           for the Southern District of Texas


Before STEWART, Chief Judge, DeMOSS and GRAVES, Circuit Judges.1
PER CURIAM:
        Juan Quiroga-Hernandez (“Hernandez”) pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326 and was sentenced to seventy-
seven months imprisonment. Hernandez challenges his sentence on appeal,
arguing that the district court erred when it applied a sixteen-level crime of
violence enhancement based on a prior Texas conviction for indecency with a
child by sexual contact. Because Hernandez’s argument is foreclosed by circuit
precedent, we AFFIRM.



        1
            Graves, Circuit Judge, concurs in the judgment only.
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                                     No. 11-41258

                                   BACKGROUND
      Hernandez was charged with illegal reentry after deportation in violation
of 8 U.S.C. §§ 1326(a), (b)(2), and pleaded guilty without the benefit of a plea
agreement. At sentencing, the district court applied a sixteen-level crime of
violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on
Hernandez’s 2000 Texas conviction for indecency with a child by sexual contact
under TEX. PENAL CODE § 21.11(a)(1). The district court concluded that the Texas
offense constitutes “sexual abuse of a minor” for purposes of § 2L1.2 of the
Guidelines. Hernandez’s total offense level was twenty-one and his criminal
history category was VI, which gave him an advisory Guidelines range of
seventy-seven to ninety-six months. The district court sentenced Hernandez to
seventy-seven months imprisonment, the bottom of the Guidelines range, and
two years of supervised release.
                                    DISCUSSION
      The district court’s conclusion that Hernandez’s prior Texas conviction
constitutes a crime violence is a question of law that we review de novo.2 United
States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005). Section
2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a sixteen-level
enhancement if the “defendant previously was deported, or unlawfully remained
in the United States, after a conviction for a felony that is . . . a crime of
violence.” An offense constitutes a crime of violence if it includes as an element
“the use, attempted use, or threatened use of physical force,” or if it is among the



      2
        The Government argues that Hernandez failed to preserve the error he asserts on
appeal and that we should review for plain error. Because Hernandez’s argument fails even
under de novo review, we need not decide whether the plain error standard applies.

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                                       No. 11-41258

enumerated offenses provided in the Guidelines. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)
Sexual abuse of a minor is one of the enumerated offenses. Id.
       We employ a common sense approach when determining whether a prior
conviction constitutes one of the enumerated crimes of violence in the
Guidelines. United States v. Sanchez, 667 F.3d 555, 560 (5th Cir. 2012). “We
determine ‘whether a prior conviction constitutes an enumerated offense as that
offense is understood in its ordinary, contemporary, [and] common meaning.” Id.
at 560–61 (quoting United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir.
2006)) (alteration in original). “If the state definition for an offense is broader
than the generic definition, a conviction under that state’s law cannot serve as
a predicate for the enhancement.” United States v. Ellis, 564 F.3d 370, 372 (5th
Cir. 2009).
       The Texas statute under which Hernandez was convicted criminalizes
sexual contact with a child, defined as a person under the age of seventeen. TEX.
PENAL CODE §§ 21.11(a)(1). Hernandez argues that the Texas offense is broader
than the generic, contemporary definition of sexual abuse of a minor because it
sets the age of consent at seventeen and criminalizes sexual activity when there
is more than three years age difference between the defendant and victim.3 See
id. §§ 21.11(a), (b)(1). Hernandez contends that most jurisdictions set the age of
consent at sixteen and require that there be more than four years age difference
between the actor and victim before criminal liability for sexual abuse of a minor
can attach.



       3
        The Texas statute provides an affirmative defense when, inter alia, the actor “was not
more than three years older than the victim and . . . did not use duress, force, or a threat
against the victim at the time of the offense.” See TEX. PENAL CODE § 21.11(b).

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                                  No. 11-41258

      Hernandez concedes, however, that this court has squarely held that the
offense defined in TEX. PENAL CODE § 21.11(a)(1) constitutes sexual abuse of a
minor for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Najera-
Najera, 519 F.3d 509, 512 (5th Cir. 2008) (citing United States v. Zavala-
Sustaita, 214 F.3d 601, 604–05 (5th Cir. 2000)); see also United States v. Castro-
Gueverra, 575 F.3d 550, 553 (5th Cir. 2009) (“We have also held that
the . . . Texas indecency with a ‘child’ statute . . . constitutes sexual abuse of a
minor under U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).”); United States v. Ayala, 542 F.3d
494, 495 (5th Cir. 2008) (“[W]e have already addressed the issue of whether a
violation of [TEX. PENAL CODE] § 21.11(a) constitutes sexual abuse of a minor for
purposes of § 2L1.2 . . . .”).
      “It is a well-settled Fifth Circuit rule of orderliness that one panel of our
court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our en
banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.
2008). Hernandez points to no change in the law that would allow this panel to
decide the issue differently than prior panels of this court. Accordingly, we are
bound by those decisions.
                                 CONCLUSION
      For the foregoing reasons, the sentence imposed by the district court is
AFFIRMED.




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