     Case: 14-40849      Document: 00513050226         Page: 1    Date Filed: 05/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40849
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 20, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CARLOS ALFREDO LANDAVERDE-ESCALANTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-238-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Carlos Alfredo Landaverde-Escalante appeals the sentence imposed
following his guilty plea conviction for illegal reentry into the United States
after deportation. He argues that the district court erred in imposing a 16-
level “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based
on his 2013 Georgia conviction for sexual battery against a child under 16 years
of age and that the district court erred in treating his prior offense as an


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40849      Document: 00513050226      Page: 2    Date Filed: 05/20/2015


                                   No. 14-40849

“aggravated felony” under 8 U.S.C. § 1326(b)(2). He asserts that (1) the offense
does not have as an element the use, attempted use, or threatened use of
physical force against another person; (2) the offense is not sexual abuse of a
minor because it is not “sexual,” as the offense does not have sexual
gratification as an element; and (3) the offense is not a forcible sex offense for
the same reasons.
      Because Landaverde-Escalante did not object to the enhancement in the
district court, review is limited to plain error. See United States v. Chavez-
Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To demonstrate plain error, he
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      We have not previously addressed whether a Georgia conviction for
sexual battery of a minor constitutes sexual abuse of a minor for purposes of
§ 2L1.2(b)(1)(A)(ii). When case law is unsettled, we typically will not hold that
an error is clear or obvious. United States v. Trejo, 610 F.3d 308, 319 (5th Cir.
2010); United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011). Landaverde-
Escalante cites to an opinion of a Georgia federal district court, but he does not
cite to an opinion of this court or any other circuit court supporting his claim.
See United States v. Hernandez-Gonzalez, 842 F. Supp. 2d 1373, 1376-77 (M.D.
Ga. 2012). Given that the case law concerning this issue is unsettled, the
district court did not plainly err in imposing a 16-level enhancement under
§ 2L1.2(b)(1)(A)(ii) based on the determination that Landaverde-Escalante’s
Georgia conviction for sexual battery of a minor constituted sexual abuse of a
minor. See Trejo, 610 F.3d at 319; Miller, 665 F.3d at 136. Moreover, because



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                                 No. 14-40849

we use the same analysis to determine whether a prior conviction constitutes
sexual abuse of a minor for purposes of both § 2L1.2 and § 1326(b)(2), see
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. 2008),
Landaverde-Escalante also has not shown plain error in the characterization
of his offense as involving an “aggravated felony” under § 1326(b). See Puckett,
556 U.S. at 135.
      AFFIRMED.




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