       Case: 13-40576        Document: 00512871963         Page: 1     Date Filed: 12/16/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 13-40576
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         December 16, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                     Plaintiff-Appellee

v.

OSCAR ARNULFO VIGIL,

                                                     Defendant-Appellant


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


Before STEWART, Chief Judge, and OWEN, Circuit Judges, and MORGAN,
District Judge. *
MORGAN, District Judge:
         Defendant-Appellant Oscar Arnulfo Vigil ("Vigil") was convicted of
illegal re-entry after deportation and sentenced to 41 months in prison. The
district court applied a 16-level "crime of violence" enhancement based on a
prior state-court conviction for sexual battery. The sole issue on appeal is
whether the district court erred by imposing the enhancement. We AFFIRM.




*   District Judge of the Eastern District of Louisiana, sitting by designation.
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                                        No. 13-40576

                                              I.
          On January 2, 2013, Vigil was indicted for illegal re-entry into the
United States. 1 He pleaded guilty on February 26, 2013. There was no plea
agreement.
          In preparation for sentencing, the district court ordered a pre-sentence
report ("PSR"). The PSR calculated a base offense level of 8. The PSR then
applied a 16-level enhancement, finding that a previous conviction for sexual
battery under Louisiana Revised Statute § 14.43.1 constituted a "crime of
violence" pursuant             to United States Sentencing Guidelines Manual
2L1.2(b)(1)(A)(ii) ("U.S.S.G.").         After a 2-level reduction for acceptance of
responsibility, Vigil's total offense level was 22. Combined with a Criminal
History Category of II, the PSR calculated a Guidelines range of 46 to 57
months imprisonment.              Vigil objected (1) that the Government had not
presented competent evidence to support the 16-level enhancement, and (2)
even if properly supported, the Louisiana conviction was not a "crime of
violence."
          The district court applied the 16-level enhancement required by the
Guidelines when there has been a prior conviction for a crime of violence.
After granting the Government's motion for an additional 1-point reduction for
acceptance of responsibility, the district court calculated a Guidelines range of
41 to 51 months imprisonment and sentenced Vigil to 41 months. Vigil now
appeals his sentence, arguing the district court misapplied the Guidelines
because his prior conviction for sexual battery is not a "crime of violence."



1   8 U.S.C. § 1326(a), (b).

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                                         No. 13-40576



                                                II.
          We review a district court's application of the Guidelines de novo, 2
including whether a prior conviction constitutes a crime of violence. 3 A
defendant convicted of illegal re-entry into the United States is subject to a
16-level enhancement if he was convicted of a "crime of violence" prior to his
removal or deportation. 4            The comments to U.S.S.G. §2L1.2(b)(1) define
"crime of violence" as one of several enumerated offense categories, including
"sexual abuse of a minor." 5
          To determine whether a prior conviction falls into one of these
categories, we apply the categorical approach set forth in Taylor v. United
States. 6 Under Taylor, "we look not to the facts of the particular prior case,
but instead to whether the state statute defining the crime of conviction
categorically fits . . . the 'generic' definition" of the enumerated offense
category. 7 Where an offense category in the Guidelines is undefined, our en
banc court has set forth a four-step analysis for applying Taylor:
                  First, we identify the undefined offense category that
                  triggers the federal sentencing enhancement. We then
                  evaluate whether the meaning of that offense category
                  is clear from the language of the enhancement at issue
                  or its applicable commentary. If not, we proceed to

2   United States v. Teran-Salas, 767 F.3d 453, 457 (5th Cir. 2014).
3   United States v. Cortez-Cortez, 770 F.3d 355, 357 (5th Cir. 2014).
4   U.S.S.G. § 2L1.2(b)(1)(A)(ii).
5   Id. at cmt. n.1(b)(III).
6   495 U.S. 575 (1990).
7Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v. Duenas-Alvarez, 549
U.S. 183, 186 (2007)).
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                                        No. 13-40576

                step two, and determine whether that undefined
                offense category is an offense category defined at
                common law, or an offense category that is not defined
                at common law. Third, if the offense category is a
                non-common-law offense category, then we derive its
                “generic, contemporary meaning” from its common
                usage as stated in legal and other well-accepted
                dictionaries. Fourth, we look to the elements of the
                state statute of conviction and evaluate whether those
                elements comport with the generic meaning of the
                enumerated offense category. 8
                                              III.
         We already have held that the offense category at issue in this
case—"sexual abuse of a minor"—is neither clearly defined in the Guidelines
nor an offense defined at common law. 9 We thus proceed to the third step and
derive the generic, contemporary meaning of the offense category.                         In
undertaking this task, we do not write on a blank slate. "There is almost no
controversy over deciding what 'sexual' means."10 "Sexual" is defined as "[o]f,
pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs
and their functions."11         We     have defined "abuse" as        "'to take unfair or




8 United States v. Rodriguez, 711 F.3d 541, 552–53 (5th Cir. 2013) (en banc) (internal
footnotes omitted).
9Id. at 557–58. The Government argues Vigil's prior conviction for sexual battery also fits a
second enumerated offense category—a "forcible sex offense[]." U.S.S.G. § 2L1.2(b)(1)(A)(ii)
cmt. n.1(b)(III). This argument presupposes Vigil was convicted under Section (A)(1) of
Louisiana's sexual battery statute. For the reasons explained below, we must assume Vigil
was convicted under Section (A)(2). Accordingly, this argument fails.
10   Contreras v. Holder, 754 F.3d 286, 294 (5th Cir. 2014)
11 Id. (alteration in original) (quoting United States v. Zavala-Sustaita, 214 F.3d 601, 604
(5th Cir. 2000)).
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                                     No. 13-40576

undue advantage of' or 'to use or treat so as to injure, hurt, or damage.'"12 We
have repeatedly endorsed the definition of "sexual abuse" set forth in Black's
Law Dictionary, which is "an illegal or wrongful sex act, esp. one performed
against a minor by an adult."13          Finally,   our en banc court has defined
"minor" as a person under the age of eighteen.14
         We now proceed to the fourth step in the categorical approach, which
requires a comparison of the elements of the state statute of conviction with
the generic definition of "sexual abuse of a minor" set forth above.                 The
Louisiana sexual battery statute under which Vigil was convicted provides in
pertinent part as follows:
                A. Sexual battery is the intentional touching of the
                anus or genitals of the victim by the offender using
                any instrumentality or any part of the body of the
                offender, or the touching of the anus or genitals of the
                offender by the victim using any instrumentality or
                any part of the body of the victim, when any of the
                following occur:

                (1) The offender acts without the consent of the victim.

                (2) The act is consensual but the other person, who is
                not the spouse of the offender, has not yet attained
                fifteen years of age and is at least three years younger
                than the offender.

                (3) The offender is seventeen years of age or older and
                any of the following exist:

12Cortez-Cortez, 770 F.3d at 358 (quoting United States v. Izaguirre-Flores, 405 F.3d 270,
272 (5th Cir. 2005)).
13Black's Law Dictionary 11 (9th ed. 2009); see also Contreras, 754 F.3d at 294 (quoting
Black's Law Dictionary for definition of "sexual abuse"); Cortez-Cortez, 770 F.3d at 358.
14   Rodriguez, 711 F.3d at 560.
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                                         No. 13-40576


                 (a) The act is without consent of the victim, and the
                 victim is prevented from resisting the act because
                 either of the following conditions exist:
                 (i) The victim has paraplegia, quadriplegia, or is
                 otherwise physically incapable of preventing the act
                 due to a physical disability.

                 (ii) The victim is incapable, through unsoundness of
                 mind, of understanding the nature of the act, and the
                 offender knew or should have known of the victim's
                 incapacity.

                 (b) The act is without consent of the victim, and the
                 victim is sixty-five years of age or older.15

         Where, as here, the charging statute contains disjunctive subsections,16
courts apply a "modified categorical approach" to determine "which of [the]
statute's alternative elements formed the basis of the defendant's prior
conviction."17 In making this determination, we may consult the charging
documents and other adjudicative records to "pare down" the statute to the
disjunctive alternative under which the conviction falls.18                If the relevant
judicial documents do not provide conclusive evidence, we assume the
defendant's conduct constituted the "least culpable act satisfying the count of
conviction."19

15   La. Rev. Stat. § 14:43.1.
16The statute distinguishes between consensual touchings, non-consensual touchings, and
the relative ages of the defendant and the victim. Accordingly, the statute is disjunctive.
17   Descamps v. United States, 133 S. Ct. 2276, 2284 (2013).
18   See United States v. Mohr, 554 F.3d 604, 607 (5th Cir. 2009).
19United States v. Espinoza, 733 F.3d 568, 572 (5th Cir. 2013) (quoting United States v.
Houston, 364 F.3d 243, 246 (5th Cir. 2006)).
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                                          No. 13-40576

         The only state-court documents available for our review are (1) the bill of
information, (2) a "true extract of criminal court minutes," and (3) the "docket
report results." None of these documents provides conclusive evidence of the
subsection under which Vigil was convicted.20 Accordingly, we presume Vigil
committed the least culpable act constituting a violation of the Louisiana
sexual battery statute.21 Both parties agree that this conduct is set forth in
Section (A)(2) of Louisiana Revised Statute 14:43.1.
         The elements of a Section (A)(2) sexual battery are (1) an intentional, (2)
consensual (3) touching of the anus or genitals of a victim who is (4) not the
spouse of the offender, (5) under the age of 15, and (6) at least three years
younger than the offender.22 When comparing these six elements against the
generic definition of sexual abuse—"an illegal or wrongful sex act, esp. one
performed against a minor by an adult"—we find a categorical "fit" that
justifies the district court's imposition of a sentencing enhancement.


20 The bill of information does not specifically identify the applicable subsection of the sexual
battery statute. It charges that Vigil "committed the offense of Sexual Battery, violating
Louisiana Revised Statute 14:43.1, in that . . . the defendant intentionally touched the
genitals of G.H., a juvenile under the age of fifteen years." This document is of no help,
because it does not identify Vigil's age or whether the touching was consensual. The
criminal court minutes merely provide that Vigil was "guilty as charged." The docket report
results are similarly unhelpful.
21  The Government contends Vigil must have been charged under the non-consensual
touching subsection of the battery statute—Section A(1)—because Louisiana law precludes
children from having the capacity to consent to sex. This argument is quickly dismissed.
It is a basic cannon of statutory construction that "[w]hen interpreting a statute, all parts of
a statute should be given effect, and an interpretation making any part superfluous or
meaningless should be avoided." Accepting the Government's argument would render the
second prong of the statute superfluous because every consensual touching of a person under
fifteen years of age would necessarily also be a non-consensual touching in violation of the
first prong.
22   See La. Rev. Stat § 14:43.1(A)(2).
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                          No. 13-40576

                               IV.
 The district court applied the Guidelines correctly. We AFFIRM.




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