     Case: 11-20881   Document: 00512008235    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. 11-20881                    Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

JORGE CABECERA RODRIGUEZ, also known as Jorge Cebecera, also
known as Jorge Paul Cabecera, also known as Jorge P. Cabecera,

                                           Defendant - Appellant



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


Before STEWART, Chief Judge, DeMOSS and GRAVES, Circuit Judges.
PER CURIAM:
        Jorge Cabecera Rodriguez (“Rodriguez”) pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326 and was sentenced to twenty-
three months imprisonment. Rodriguez now challenges his sentence, arguing
that the district court erred when it applied a sixteen-level crime of violence
enhancement based on a prior Texas conviction for sexual assault of a child.
Because Rodriguez’s argument is foreclosed by circuit precedent, we AFFIRM.
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                                  No. 11-20881

                                 BACKGROUND
      Rodriguez 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
Rodriguez’s 2003 Texas conviction for sexual of assault of a child under TEX.
PENAL CODE § 22.011(a)(2). Rodriguez objected to the enhancement, arguing that
the Texas offense is not a crime of violence because it criminalizes conduct that
falls outside of the generic, contemporary meaning of the offenses enumerated
in the Guidelines. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The district court
overruled the objection. Rodriguez’s total offense level was twenty-one and his
criminal history category was III, which gave him an advisory Guidelines range
of forty-six to fifty-seven months. The district court granted Rodriguez a
downward variance and sentenced him to twenty-three months imprisonment.
                                  DISCUSSION
      The district court’s conclusion that Rodriguez’s prior Texas conviction
constitutes a crime violence is a question of law that we review de novo. United
States v. Najera-Najera, 519 F.3d 509, 510 (5th Cir. 2008). 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
enumerated offenses provided in the Guidelines. U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). The crimes of statutory rape and sexual abuse of a minor are included
in the list of 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

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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 at issue criminalizes sexual intercourse with a child,
defined as a person under the age of seventeen. TEX. PENAL CODE §§ 22.011(a)(2),
(c)(1). Rodriguez argues that the Texas offense is broader than the generic,
contemporary definitions of sexual abuse of a minor and statutory rape 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.1
See id. §§ 22.011(a)(2), (c)(1), (e)(2). Rodriguez 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 statutory
rape or sexual abuse of a minor can attach.
       As Rodriguez acknowledges, however, this court has squarely held that the
offense defined in TEX. PENAL CODE § 22.011(a)(2) constitutes “statutory rape”
for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Alvarado-
Hernandez, 465 F.3d 188, 189–90 (5th Cir. 2006); see also Sanchez, 667 F.3d at
566; United States v. Castro-Gueverra, 575 F.3d 550, 552 (5th Cir. 2009).2 “This


       1
         The Texas statute provides an affirmative defense when, inter alia, “the actor was not
more than three years older than the victim and at the time of the offense . . . the victim was
a child of 14 years of age or older.” See TEX. PENAL CODE § 22.011(e)(2)(A)–(B).
       2
         Rodriguez also argues that the district court erred in concluding that his conviction
under TEX. PENAL CODE § 22.011(a)(2) constitutes an aggravated felony for purposes of 8
U.S.C. § 1326(b)(2), which provides a greater maximum sentence for aliens convicted of illegal

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court has [also] held that the crime of sexual assault of a child under TEX. PENAL
CODE § 22.011(a)(2) falls within the guideline enhancement as sexual abuse of
a minor.” Castro-Gueverra, 575 F.3d at 553–54 (citing United States v. Martinez-
Vega, 471 F.3d 559, 562 (5th Cir. 2006)); see also Sanchez, 667 F.3d at 566.
       “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). Rodriguez 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.




reentry after removal “subsequent to a conviction for commission of an aggravated felony.” The
term “aggravated felony” is defined in 8 U.S.C. § 1101(a)(43)(A) as including “sexual abuse of
a minor.” We use the same analysis to determine whether a prior conviction constitutes sexual
abuse of a minor for purposes of § 1101(a)(43)(A) that we use to determine whether a prior
conviction constitutes sexual abuse of a minor for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See
United States v. Zavala-Sustaita, 214 F.3d 601, 603–05 (5th Cir. 2000). Accordingly, this
argument is also foreclosed by our prior precedent. See Calderon-Terrazas v. Ashcroft, 117 F.
App’x 903, 904–05 (5th Cir. 2004) (“[S]exual assault of a child under TEX. PENAL CODE §
22.011[(a)(2)] qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).” (internal
quotation marks omitted)).

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JAMES E. GRAVES, JR., Circuit Judge, concurring:
      I agree that Rodriguez’s challenge based on the definition of “minor” is
foreclosed by this court’s earlier decisions holding that Texas Penal Code
§ 22.011(a)(2) constitutes both “statutory rape” and “sexual abuse of a minor” for
the purposes of the §2L1.2 sentencing enhancement. I write separately to
emphasize that these decisions are unsupported by the proper analysis and are
inconsistent with other well-reasoned decisions of this court.
      We have held, consistent with Supreme Court precedent, that an
undefined offense enumerated in the Sentencing Guidelines must be given a
“uniform definition” based on its “generic, contemporary meaning.” United
States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004) (citing Taylor
v. United States, 495 U.S. 575, 593-94 (1990)). We have also held that the
“generic, contemporary meaning” of “statutory rape” sets the age of consent at
sixteen, and have at least strongly implied that the “generic, contemporary
meaning” of “sexual abuse of a minor” defines a “minor” as a person under
sixteen. See United States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir. 2008);
United States v. Munoz-Ortenza, 563 F.3d 112, 115-16 (5th Cir. 2009). Based on
these precedents, the Texas statute, which sets the age of consent at seventeen,
is unequivocally overbroad. Furthermore, as explained below, no published
opinion of this court dealing with a §2L1.2 enhancement based on Texas Penal
Code § 22.011(a)(2) includes any definition or analysis of the generic meaning of
either “statutory rape” or “sexual abuse of a minor” to support its holding.
      Rodriguez also argues that the “generic, contemporary” meaning of “sexual
abuse of a minor” requires at least a four-year age difference between the victim
and the defendant. Accordingly, Rodriguez contends that Texas Penal Code §
22.011(a)(2) is overbroad because it requires only a three-year age difference.
Because this court has never addressed a challenge to section 22011(a)(2) or any
analogous statute based on this age differential, I do not agree that this

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challenge is foreclosed by circuit precedent. However, as explained below, this
challenge fails on the merits.
I.      Definition of “Minor”
        A.   Cases Interpreting Texas Penal Code § 22.011(a)(2)
             i.       Statutory rape
        In United States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir.
2006), this court held that the defendant’s prior conviction under Texas Penal
Code § 22.011(a)(2) met the “common-sense definition” of “statutory rape” under
§2L1.2. Citing United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.
2006), the court noted that a “common sense approach” must be used to
determine whether “the defendant’s offense qualifies as an enumerated offense
in the Guidelines,” which “requires a determination of the generic and
contemporary meaning” of the enumerated offense. Id. at 189. This court
previously recognized in Sanchez-Ruedas that “[f]or sources of generic
contemporary meaning, we consider, inter alia, the Model Penal Code, Professors
LaFave and Scott’s treatise, modern state cases, and dictionaries.” Sanchez-
Ruedas, 452 F.3d at 412. However, the court discussed none of these sources in
Alvarado-Hernandez, stating simply that:
        The Texas statute at issue meets a common sense definition of
        “statutory rape.”    This statute punishes consensual sexual
        intercourse with a child, defined as a person younger than the age
        of seventeen. Alvarado-Hernandez’s prior conviction was based on
        an indictment that charged him with having consensual sexual
        intercourse with a fourteen-year-old victim, sufficient to meet a
        common-sense as well as a generic, contemporary definition of
        statutory rape.
Alvarado-Hernandez, 465 F.3d at 189-90 (citations omitted). Although Alvarado-
Hernandez argued that the Texas statute was categorically overbroad because
it set the age of consent at seventeen rather than sixteen, the court neither
acknowledged nor discussed this argument.


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      Because the court relied upon the specific facts of that case showing that
a fourteen-year-old victim was involved and presented no analysis dealing with
the “generic, contemporary” definition of “statutory rape,” its opinion cannot be
fairly construed as holding that Texas Penal Code § 22.011(a)(2) categorically
constitutes “statutory rape” under §2L1.2. However, in subsequent cases this
court has cited Alvarado-Hernandez for exactly this proposition. In United
States v. Castro-Guevarra, 575 F.3d 550, 552 (5th Cir. 2009), this court
characterized Alvarado-Hernandez as holding “that the Texas statute meets a
common sense definition of statutory rape.” (Quotations omitted). Based solely
on this authority, the court rejected Castro-Guevarra’s argument that the Texas
statute “does not reflect the ‘generic age of consent’ that renders it a statutory
rape statute under the Guidelines.” Id. Additionally, in United States v.
Sanchez, 667 F.3d 555, 566 (5th Cir. 2012), this court cited Alvarado-Hernandez
and held that “our precedents foreclose [the] argument” that the Texas statute
“encompasses behavior beyond the ordinary, contemporary, and common
definition[] of . . . ‘statutory rape’” due to the higher age of consent.
             ii.    Sexual abuse of a minor
      In United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006), this
court rejected the defendant’s challenge to a §2L1.2 enhancement for “sexual
abuse of a minor” based on his prior conviction under Texas Penal Code
§ 22.011(a)(2). The court noted that it had previously held in United States v.
Izaguirre-Flores, 405 F.3d 270, 275-76 (5th Cir. 2005), that “[t]aking indecent
liberties with a child to gratify one’s sexual desire constitutes ‘sexual abuse of
a minor’ because it involves taking undue or unfair advantage of the minor.” Id.
The court therefore reasoned that “[i]f gratifying one’s sexual desires while in
the presence of a minor constitutes sexual abuse of a minor, then sexual assault
of a minor [under section 22.011(a)(2)] certainly constitutes sexual abuse of a
minor.” Id. However, the definition of “minor” was not at issue in either

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Martinez-Vega or Izaguirre-Flores, and neither opinion contained any discussion
of the matter. Martinez-Vega did not even argue in his brief that the Texas
statute failed to meet the “generic, contemporary” definition of “sexual abuse of
a minor,” and the court unsurprisingly did not address the issue. Nonetheless,
this court has subsequently relied upon Martinez-Vega to reject as foreclosed any
argument that Texas Penal Code § 22.011(a)(2) does not categorically constitute
“sexual abuse of a minor” under §2L1.2. See Castro-Guevarra, 575 F.3d at 552-
53; Sanchez, 667 F.3d at 566 & n.56 (citing Castro-Guevarra).
      Notably, no published opinion of this court construing Texas Penal Code
§ 22.011(a)(2) has set forth a “generic, contemporary” definition of either
“statutory rape” or “sexual abuse of a minor” under which this statute would not
be categorically overbroad.
      B.     Cases Interpreting Other Statutes
      The only published opinion of this court defining “minor” as a person
under seventeen, in the context of “sexual abuse of a minor” under §2L1.2, is
United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). That case
dealt with Texas Penal Code § 21.11, which prohibits “indecency with a child.”
Like section 22.011(a)(2), section 21.11 defines a “child” as a person younger
than seventeen. In United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.
2000), this court stated, without any further explanation, that “[t]he victim of a
§ 21.11(a)(2) offense, ‘a child younger than 17 years,’ is clearly a ‘minor.’” In that
case, the defendant had previously exposed himself to a 13-year-old girl and a
10-year-old boy. Id. at 602-03. Unsurprisingly, the age definition for “minor” or
“child” was not an issue and was apparently not argued by the parties or
considered by the court.
      But in United States v. Najera-Najera, 519 F.3d 509, 511-12 (5th Cir.
2008), this court found Zavala-Sustaita to be “dispositive” and interpreted its
holding to state that the “generic, contemporary” meaning of “sexual abuse of a

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minor” defines a “minor” as a person under seventeen. Subsequently, in United
States v. Ayala, 542 F.3d 494, 494-95 (5th Cir. 2008), this court cited Zavala-
Sustaita and Najera-Najera to hold that Ayala’s argument based on the section
21.11 definition of “child” was foreclosed. Even if the court in Zavala-Sustaita
intended to categorically define “minor” in the context of “sexual abuse of a
minor,” which is doubtful, this holding is hardly persuasive. Rather than
investigate any source of “generic, contemporary meaning,” the court simply
declared that a person under seventeen is “clearly” a minor. Although a sixteen-
year-old is certainly considered a “minor” in some contexts, this does not answer
the question. The “generic, contemporary meaning” of an undefined guidelines
offense must be determined by reference to the elements of specific state
offenses, not according to the meaning of a term in unrelated contexts.
      When this court has actually investigated the “generic, contemporary
meaning” of “statutory rape” and “sexual abuse of a minor,” the results have
shown Texas Penal Code § 22.011(a)(2) to be overbroad due to the age definition.
In Lopez-DeLeon, 513 F.3d at 474, this court compared California Penal Code
§ 261.5(c), which prohibits “sexual intercourse with a minor,” with the “generic,
contemporary meaning” of “statutory rape.” Consistent with our precedent, the
court determined this meaning “by reviewing the Model Penal Code (MPC),
treatises, modern state codes, and dictionaries.” Id. The court found that thirty-
three states and the District of Columbia set the age of consent to sexual activity
at sixteen, whereas six states set the age of consent at seventeen and eleven
states set the age of consent at eighteen. Id. at 474-75. The court found that the
federal offense of “sexual abuse of a minor,” 18 U.S.C. § 2243(a), sets the age of
consent at sixteen. Id. at 474-75. Finally, the court found that the Black’s Law
Dictionary definition of “statutory rape” states that the age of consent is “usually
defined by statute at 16 years.” Id. at 475. Based on these considerations, and
using “the common sense approach,” the court held that “the ordinary,

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contemporary, and common meaning of minor, or ‘age of consent’ for purposes
of a statutory rape analysis, is sixteen.” Id. Because the California statute set
the age of consent at eighteen rather than sixteen, the court held that it “is
overly broad for the purposes of defining statutory rape pursuant to . . .
§ 2L1.2(b)(1)(A)(ii).” Id.
      In Munoz-Ortenza, 563 F.3d at 114-16, this court conducted a similar
analysis to determine whether California Penal Code § 288a(b)(1), which
prohibits “oral copulation of a minor” under eighteen, is consistent with the
“generic, contemporary meaning” of “sexual abuse of a minor.” The court found
that “[t]hirty-nine states, federal law, and the Model Penal Code define minor
as one under sixteen (or younger) for purposes of punishing oral copulation,”
whereas five states define “minor” as one under seventeen, and six states as well
as the District of Columbia define “minor” as one under eighteen. Id. at 115.
The court accordingly found that “it would be difficult to conclude that a minor,
in the context of the enumerated category of ‘sexual abuse of a minor,’ is one
under eighteen.” Id. Nevertheless, the court recognized our precedents holding
that “‘minor’ in this context includes those under seventeen,” and stated that it
“need not decide here whether ‘minor’ as used in the enumerated category of
‘sexual abuse of a minor’ means those under sixteen versus those under
seventeen.” Id. at 115-16. The court held that because section 288a(b)(1)
“defines minor as one under eighteen, it is overbroad because it criminalizes
‘conduct that would not be criminalized under the generic, contemporary
meaning’ of sexual abuse of a minor.” Id. at 116 (quotation omitted). Despite
the court’s refusal to decide whether a “minor” could be defined as a person
under seventeen, the data cited by the court strongly suggest the generic age is
sixteen.
      No subsequent opinions of this court have challenged or undermined the
“generic, contemporary meaning” analyses presented in Lopez-DeLeon and

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Munoz-Ortenza. In fact, this court recently relied upon both cases to hold that
a Florida statute criminalizing sexual activity with 16- and 17-year-olds was too
broad to categorically constitute either “statutory rape” or “sexual abuse of a
minor” under §2L1.2. United States v. Chavez-Hernandez, 671 F.3d 494, 499-500
(5th Cir. 2012).
II.    Age Difference Between Victim and Defendant
       Citing Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152-53 (9th Cir.
2008), Rodriguez contends that “most states require a four-year age difference
for conviction of a sexual assault of a child.” Appellant’s Brief at 15. This
assertion is not supported by Estrada-Espinoza and is in fact incorrect. Almost
every state has statutes defining multiple crimes of varying severity that would
constitute “sexual abuse of a minor.” See generally “Statutory Rape: A Guide to
State Laws and Reporting Requirements,” The Lewin Group, prepared for the
Department     of   Health   and    Human      Services,    Dec.   15,   2004,      at
http://aspe.hhs.gov/hsp/08/sr/statelaws/report.pdf. In most states, sexual activity
with a victim below a certain age is a crime regardless of the age of the
defendant. Id. Above this minimum age, state laws vary widely based on the
age of the victim, the age of the defendant, the age difference between the victim
and the defendant, the type of sexual activity, and other factors. Id. Although
a four-year age differential is included in the definition of “sexual abuse of a
minor” under 18 U.S.C. § 2243 and in the Model Penal Code definition of
“statutory rape,” this is not dispositive in light of the substantial disagreement
between the various states. Rodriguez has not demonstrated that the three-year
age difference included in Texas Penal Code § 22011(a)(2) renders it broader
than the generic definition of “sexual abuse of a minor.”
III.   Conclusion
       Because of the age of the victim, Rodriguez’s conduct would not constitute
“statutory rape” or “sexual abuse of a minor” under the laws of most states.

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Rodriguez was given a sixteen-level sentencing enhancement based on a prior
section 22011(a)(2) offense involving a sixteen-year-old victim when he was
nineteen years old. Nevertheless, the panel is compelled to reject Rodriguez’s
challenge based on our prior decisions construing section 22011(a)(2), even after
other opinions of this court have shown these decisions to be incorrect. As the
court recognizes, “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). Rather than allow this
confusion in our case law to continue, the court should definitively determine the
“generic, contemporary meanings” of the offenses at issue here and apply these
definitions uniformly.




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