     Case: 16-41088      Document: 00514143138         Page: 1    Date Filed: 09/05/2017




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

                                      No. 16-41088
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 5, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

MARCELO MONTANEZ-TREJO,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-247-1


Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Marcelo Montanez–Trejo pleaded guilty, without
a plea agreement, to illegally reentering the United States after previously
having been removed. On appeal, Montanez–Trejo argues that the district
court erred in entering judgment against him under 8 U.S.C. § 1326(b)(2),
rather than § 1326(b)(1), and erred in applying a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).       For the following reasons, we AFFIRM the
conviction and sentence, and REMAND for the limited purpose of correcting


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 16-41088
the judgment as described below.
              I. FACTUAL AND PROCEDURAL BACKGROUND
       In    March    2016,     Defendant–Appellant         Marcelo     Montanez–Trejo
encountered law enforcement while he was walking along the highway near
Alice, Texas. Law enforcement determined that Montanez–Trejo was a citizen
of Mexico with no legal right to enter the United States, and Montanez–Trejo
admitted that he had entered the United States by crossing the Rio Grande
River.      An immigration record check revealed that Montanez–Trejo had
previously been removed from the United States on May 29, 2013, following a
conviction in Nebraska. Specifically, on August 26, 2011, Montanez–Trejo was
convicted on two counts of sexual assault in the first degree in Nebraska in
violation of Neb. Rev. Stat. § 28-319 and sentenced to two to three years
imprisonment on each count (to be served consecutively). 1
       On May 4, 2016, Montanez–Trejo pleaded guilty, without a plea
agreement, to count one of the indictment, which charged him with illegal
reentry in violation of 8 U.S.C. § 1326(a) and (b).                 Applying the 2015
Sentencing Guidelines, the PSR assigned a base offense level of 8. U.S.S.G.
§ 2L1.2(a).    The PSR then added a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because Montanez–Trejo’s Nebraska conviction for sexual


       1 The Presentence Investigation Report (PSR) described the background of this offense
as follows:
               On April 25, 2011, the defendant was arrested for two counts of 1st
        degree sexual assault. The investigation revealed that on April 22, 2011, two
        female juveniles, ages 15 and 16, ran away from the Norfolk Group Home in
        Norfolk, Nebraska. Both juveniles and the defendant were located on April 25,
        2011, at the New Victorian Inn and Suites in Norfolk. After interviewing the
        juveniles, it was determined that after leaving the group home, both girls met
        with the defendant. The defendant rented a room at a Super 8 Motel where
        the defendant and the 15 year old juvenile had sexual intercourse on April 22,
        2011. On April 23, 2011, the defendant paid for a room at the Budget Inn
        where he and the 15 year old juvenile again had sexual intercourse. The
        defendant and both juveniles were subsequently located and taken into
        custody on April 25, 2011.
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assault was a “crime of violence.” After a 3-level reduction for acceptance of
responsibility, the PSR calculated a total offense level of 21. The PSR also
assigned a criminal history category of II. Accordingly, the PSR concluded that
the maximum term of imprisonment was 20 years (pursuant to 8 U.S.C.
§ 1326(b)(2)) and the Guidelines range was 41 to 51 months.                    The PSR,
however, also noted that proposed amendments to the Guidelines would
become effective November 1, 2016. The PSR stated that, under the proposed
amendments, the Guidelines range would be 21 to 27 months.
       On July 19, 2016, the district court held the sentencing hearing. As an
initial matter, the district court adopted the findings of the PSR, including that
the total offense level was 21, the criminal history category was II, and the
Guidelines range was 41 to 51 months in prison. Montanez–Trejo’s counsel
offered several arguments for a lower sentence: (1) Montanez–Trejo was
unaware that he would face such a severe sentence upon reentry; (2) his
Nebraska conviction “was not a situation where there was aggression or a
forced sexual assault . . . . This was a situation where they were boyfriend and
girlfriend”; and (3) he was coming to Houston to work with his brother and has
significant family support in Mexico. Montanez–Trejo’s counsel also requested
that the district court sentence him to 21 months in prison, which was the low
end of the Guidelines range under the proposed amendments. 2                          The
Government agreed that a low end sentence would be appropriate. The district
court ultimately imposed a sentence of 30 months in prison. The district court’s




       2  The district court asked whether the Guidelines range under the proposed
amendments was 21 to 27 months, to which Montanez–Trejo’s counsel responded in the
affirmative. On appeal, Montanez–Trejo now says that the correct Guidelines range under
the proposed amendments was actually 15 to 21 months. This purported error, however, does
not serve as the basis for any of Montanez–Trejo’s arguments on appeal. Thus, we need not
address this issue further (including whether Montanez–Trejo’s counsel waived any objection
to this error by agreeing with the district court).
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                                  No. 16-41088
judgment reflects that Montanez–Trejo’s conviction for illegal reentry was in
violation of 8 U.S.C. § 1326(a) and (b)(2). Montanez–Trejo timely appeals.
                               II. DISCUSSION
      On appeal, Montanez–Trejo raises two arguments: (1) his Nebraska
conviction was not an aggravated felony, and thus, the district court erred in
entering judgment under § 1326(b)(2) rather than § 1326(b)(1); and (2) his
Nebraska conviction was not a crime of violence, and thus, the district court
erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
As Montanez–Trejo concedes, he failed to raise either of these arguments in
the district court, and thus, our review is for plain error. See, e.g., United
States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). Under plain error review,
Montanez–Trejo must meet a four-prong test: he must show that there was
(1) an error, (2) that was plain, and (3) that affected his substantial rights; and
if those first three prongs are met, (4) we have the discretion to remedy the
error if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” See id. (quoting United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005)).
      Both of Montanez–Trejo’s arguments relate to whether his Nebraska
conviction qualifies under the generic offense of sexual abuse of a minor. The
crux of Montanez–Trejo’s first argument is whether his prior Nebraska
conviction qualifies under the generic offense of “sexual abuse of a minor” such
that it is an “aggravated felony” subject to § 1326(b)(2). Under § 1326(b)(2), a
defendant convicted of illegal reentry “whose removal was subsequent to a
conviction for commission of an aggravated felony” is subject to a maximum
imprisonment term of 20 years. If the defendant’s prior conviction was not an
aggravated felony, then § 1326(b)(1) applies and the defendant is subject to a
maximum imprisonment term of 10 years. The term “aggravated felony” is


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                                      No. 16-41088
defined to include “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
       Montanez–Trejo’s second argument again turns on whether his prior
Nebraska conviction qualifies under the generic offense of “sexual abuse of a
minor,” but for this argument, whether his prior Nebraska conviction qualifies
is for the purpose of establishing that it is a “crime of violence” subject to
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant
is subject to a 16-level enhancement if he was previously deported after a
“crime of violence.” In the commentary, “crime of violence” is defined to include
“sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt.B(iii).
       In sum, if Montanez–Trejo’s Nebraska conviction does not qualify under
the generic offense of “sexual abuse of a minor,” then the district court erred in
entering judgment under § 1326(b)(2) rather than § 1326(b)(1), and erred in
applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 3
Although both arguments implicate the generic offense of sexual abuse of a
minor, the parties address the arguments separately, and thus, we address
each argument separately below.
A. Whether the District Court Plainly Erred in Convicting Montanez–
Trejo Under § 1326(b)(2)
       Montanez–Trejo argues that, because his Nebraska conviction does not
qualify as sexual abuse of a minor, the district court erred in entering judgment
against him under § 1326(b)(2). According to Montanez–Trejo, his judgment
should be corrected to reflect that he was convicted under § 1326(b)(1), not
§ 1326(b)(2), because the erroneous judgment has significant immigration
consequences. To determine whether Montanez–Trejo’s Nebraska conviction


       3 Although the offense of sexual abuse of a minor is enumerated separately in the
statute and the Guidelines, the parties do not assert that this has any effect on the generic
meaning of that offense. See United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir.
2008) (noting that the different context in which “sexual abuse of a minor” appeared, namely
8 U.S.C. § 1101(a)(43) and U.S.S.G. § 2L1.2, was “a distinction without a difference”).
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qualifies as sexual abuse of a minor (one of the enumerated aggravated felony
offenses for the purpose of § 1326(b)(2)), “we ‘employ a categorical approach by
looking to the statute . . . of conviction, rather than to the specific facts
underlying the crime.’” See Esquivel–Quintana v. Sessions, 137 S. Ct. 1562,
1568 (2017) (omission in original) (quoting Kawashima v. Holder, 565 U.S. 478,
483 (2012)). “Under that approach, we ask whether ‘the state statute defining
the crime of conviction categorically fits within the generic federal definition of
a corresponding aggravated felony’”—i.e., sexual abuse of a minor. Id. at 1568
(internal quotation marks omitted) (quoting Moncrieffe v. Holder, 569 U.S. 184,
190 (2013)). “[W]e presume that the state conviction ‘rested upon . . . the least
of th[e] acts’ criminalized by the statute, and then we determine whether that
conduct would fall within the federal definition of the crime.” Id. (omission and
second alteration in original) (quoting Johnson v. United States, 559 U.S. 133,
137 (2010)).      The Nebraska statute under which Montanez–Trejo was
convicted, Neb. Rev. Stat. § 28-319, provides, in relevant part, the following:
      Any person who subjects another person to sexual penetration
      (a) without the consent of the victim, (b) who knew or should have
      known that the victim was mentally or physically incapable of
      resisting or appraising the nature of his or her conduct, or (c) when
      the actor is nineteen years of age or older and the victim is at least
      twelve but less than sixteen years of age is guilty of sexual assault
      in the first degree.
Id. § 28-319(1). 4
      As an initial matter, we have previously defined the generic offense of
sexual abuse of a minor to involve three elements: conduct that was (1) sexual,
(2) abusive, and (3) with a minor. 5         See Najera-Najera, 519 F.3d at 511.


      4 This statute has not been amended since Montanez–Trejo’s conviction in 2011.
      5  As discussed in detail below, the Supreme Court’s recent decision in Esquivel–
Quintana overruled this court’s prior precedent with respect to what the maximum age of a
minor is for the generic offense of sexual abuse of a minor. See Esquivel–Quintana, 137 S.
Ct. at 1568–72 (“Where sexual intercourse is abusive solely because of the ages of the
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Accordingly, the Nebraska statute at issue here is overbroad because
subsections (a) and (b) do not qualify as the generic offense of sexual abuse of
a minor (given that they do not require the victim to be a minor). 6
       That is not the end of the inquiry, however, because the Government
argues that the modified categorical approach applies. “Under that approach,
a sentencing court looks to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016).                 Importantly, the modified
categorical approach “only applies when a statute is ‘divisible,’ meaning it ‘sets
out one or more elements of the offense in the alternative.’” United States v.
Lobaton–Andrade, 861 F.3d 538, 541 (5th Cir. 2017) (per curiam) (quoting
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)). Thus, whether the
Nebraska statute at issue here is divisible depends on whether its three
subsections are alternative elements of the offense or alternative means of
satisfying a single element. See, e.g., United States v. Hinkle, 832 F.3d 569,
575 (5th Cir. 2016). “[W]e have recognized that ‘[t]he test to distinguish means
from elements is whether a jury must agree.’” Lobaton–Andrade, 861 F.3d at
542 (second alteration in original) (quoting United States v. Howell, 838 F.3d
489, 497 (5th Cir. 2016)).
       Here, the parties dispute whether the Nebraska statute at issue here is
divisible. Although Montanez–Trejo concedes that no Nebraska court has



participants, the victim must be younger than 16.”). The Supreme Court also expressly left
open the question of whether the generic offense requires a certain age differential between
the victim and the perpetrator. See id. at 1572.
        6 Rape is also included in the definition of aggravated felony.               8 U.S.C.
§ 1101(a)(43)(A). The Government, however, concedes that subsections (a) and (b) do not
qualify under the generic offense of rape because Nebraska includes digital penetration in
the definition of sexual penetration, see Neb. Rev. Stat. § 28-318(6), which is not included in
the generic offense of rape, see Perez–Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012).
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addressed the means or elements issue for this precise statute, he contends
that the statute contains means (making it indivisible) because the subsections
can be charged in the alternative in a single count, and Nebraska courts treat
similar charges as presenting means of committing an offense. According to
Montanez–Trejo, his contention is underscored by the fact that the actual
information filed against him charged him with violating each of the statute’s
subsections in the alternative for each count. The Government counters by
pointing to a Nebraska Supreme Court decision referring to the statute as
containing “elements,” and the Government adds that, regardless of the actual
merits, any error is not sufficiently clear to meet the second prong of plain error
review.
      We need not decide whether the Nebraska statute at issue here is
divisible because we conclude that, even if the district court did not plainly err
in finding that it is divisible, the modified categorical approach does not clarify
the subsection under which Montanez–Trejo was convicted. As noted above,
assuming that the Nebraska statute is divisible, the modified categorical
approach only allows a court to look at a limited class of documents.           In
Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court stated that,
in applying the modified categorical approach to a previous state conviction by
guilty plea, courts are limited to considering “the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of this information.” Id.
at 26; see also Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006) (“The
use of these documents is permitted because they are considered sufficiently
conclusive and reliable to establish the facts to which the alien actually pleaded
guilty.”). Critically, the only Shepard-approved document in the record here is
the information used to charge Montanez–Trejo, but the information accuses
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                                       No. 16-41088
him of violating in the alternative all three subsections of Neb. Rev. Stat. § 28-
319(1). Put another way, the information does not provide the clarity needed
to determine whether Montanez–Trejo necessarily admitted to the elements of
the generic offense of sexual abuse of a minor; instead, the information
suggests that he could have admitted to violating any of the three subsections,
two of which do not meet the generic offense of sexual abuse of a minor. 7 Thus,
the district court committed a clear error in entering judgment under
§ 1326(b)(2): his Nebraska conviction does not qualify under the generic offense
of sexual abuse of a minor given that the lone Shepard-approved document in
the record does not clarify the subsection under which he was convicted, and
thus, his Nebraska conviction was not a prior aggravated felony necessary to
implicate § 1326(b)(2).
       Moreover, Montanez–Trejo has met the third prong of plain error review
because, had the clear error been recognized, the district court would have
entered judgment against him under § 1326(b)(1), not § 1326(b)(2). As we have



       7 The Government points to a document in the record entitled “Commitment,” which
was from the deputy clerk of the Nebraska court addressed to the county sheriff. The
Commitment states that Montanez–Trejo was charged with two counts of “Sexual
assault/minor-1st degree” in violation of § 28-319. Under the Government’s theory, the
Commitment shows that Montanez–Trejo’s Nebraska conviction must have been under
subsection (c) because that is the only subsection concerning minors. The Government,
however, does not offer any argument for why this document is a Shepard-approved
document. Indeed, this document is not one of the types of documents listed in Shepard,
which limits consideration to “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some comparable judicial record of this
information.” See Shepard, 544 U.S. at 26; see also, e.g., United States v. Gutierrez–Ramirez,
405 F.3d 352, 359 (5th Cir. 2005) (holding that an abstract of judgment from California was
not a Shepard-approved document); United States v. Lopez–Cano, 516 F. App’x 350, 354 (5th
Cir. 2013) (per curiam) (“The docket sheet and the case summary are not Shepard-approved
documents because they were prepared by court not judges.”). And there is no suggestion
that Montanez–Trejo confirmed the information in the Commitment, especially considering
that it appears to have been sent by the deputy clerk to the county sheriff. Thus, in light of
Shepard, it would be clear error to rely on this document under the modified categorical
approach.
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                                  No. 16-41088
described before, a judgment erroneously listing § 1326(b)(2) “is neither
harmless nor moot because the erroneous judgment could have collateral
consequences” given that “a conviction under § 1326(b)(2)—involving a prior
conviction of an aggravated felony—is itself an aggravated felony, ‘rendering
[the defendant] permanently inadmissible to the United States.’”           United
States v. Ovalle–Garcia, -- F.3d --, 2017 WL 3391627, at *1 (5th Cir. 2017)
(alteration in original) (quoting United States v. Briceno, 681 F. App’x 334, 337
(5th Cir. 2017) (per curiam)). In light of the potentially significant immigration
consequences and limited request for relief, we exercise our discretion under
the fourth prong to correct this error by remanding for the limited purpose of
reforming the judgment to reflect his conviction under § 1326(b)(1), not
§ 1326(b)(2). See, e.g., United States v. Medrano–Camarillo, 653 F. App’x 239,
240 (5th Cir. 2016) (per curiam) (remanding under plain error review for the
limited purpose of correcting the judgment to properly reflect that the
defendant was convicted under § 1326(b)(1), not § 1326(b)(2)); United States v.
Quinanilla–Ventura, 616 F. App’x 189, 190 (5th Cir. 2015) (per curiam)
(same). 8
B. Whether the District Court Plainly Erred in Applying a 16-Level
Enhancement
      We now turn to Montanez–Trejo’s second argument—i.e., whether the
district court plainly erred in applying a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Montanez–Trejo notes that subsection (c) of the Nebraska
statute criminalizes consensual sexual conduct between an individual who is
19 and an individual who is one day shy of being 16. According to Montanez–
Trejo, subsection (c) does not meet the generic offense of sexual abuse of a



      8 The Government has not argued that it should be given an opportunity to
supplement the record with Shepard-approved documents.
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                                       No. 16-41088
minor for two reasons: (1) the generic offense requires at least a four year age
differential between the victim and the perpetrator (the Nebraska statute
requires only a three year age differential), and (2) the generic offense does not
consider consensual sexual activity between close-in-age individuals to be
abuse. 9
       At the time of briefing in this appeal, Montanez–Trejo conceded that his
arguments were foreclosed by our precedent. In United States v. Rodriguez,
711 F.3d 541 (5th Cir. 2013) (en banc), we addressed what constituted the
generic offense of sexual abuse of a minor as used in U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Id. at 557–62. In that case, the defendant, who had a
previous conviction under a Texas law criminalizing sexual conduct with a
minor, argued, inter alia, that the district court erred in applying a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the Texas statute set
the age of consent too high (it included individuals under 17, not just
individuals under 16) and the age differential too low (he was 19 and the victim
was 16). See id. at 547, 562. After discussing the various tests that could be
used to define sexual abuse of a minor, we ultimately adopted “a plain-meaning
approach when determining the ‘generic, contemporary meaning’ of non-
common-law        offense     categories     enumerated        in    federal    sentencing
enhancements.” See id. at 550–53. Applying the plain-meaning approach, we
rejected both of the defendant’s arguments. Id. at 562. Specifically, we held
that the age requirement for a minor in the generic offense of sexual abuse of
a minor is an individual under 18. See id. at 559–62. Additionally, we held



       9  Montanez–Trejo does not contend that the divisibility of the Nebraska statute (i.e.,
his first argument) should have any effect with respect to his second argument. In other
words, Montanez–Trejo does not contend that subsections (a) and (b) of the Nebraska statute
are overbroad for the purpose of determining whether his prior conviction was a “crime of
violence” as used in U.S.S.G. § 2L1.2(b)(1)(A)(ii); instead, his argument focuses only on
whether subsection (c) qualifies under the generic offense of sexual abuse of a minor.
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                                    No. 16-41088
that the generic offense of sexual abuse of a minor contained no age differential
requirement between the victim and the perpetrator, thereby rejecting the
defendant’s argument that the generic definition required a four year age
differential. See id. at 562 n.28. Similarly, in United States v. Elizondo–
Hernandez, 755 F.3d 779 (5th Cir. 2014) (per curiam), we recognized that the
defendant’s argument that the generic definition of sexual abuse of a minor
required a four year age differential between the victim and the perpetrator
was foreclosed by our decision in Rodriguez. Id. at 781. In that case, we also
rejected the defendant’s argument that a conviction for indecency with a minor
by contact under a Texas statute did not constitute “abuse” within the generic
meaning of sexual abuse of a minor. Id. at 781–82.
      While this appeal was pending, the Supreme Court issued its decision in
Esquivel–Quintana. 10 In that case, the Supreme Court considered whether a
prior conviction under California’s statutory rape law—which criminalized
sexual intercourse with an individual under 18 when there is a three year age
differential between the victim and the perpetrator—qualified under the
generic offense of sexual abuse of a minor. Esquivel–Quintana, 137 S. Ct. at
1567–68. After examining the language and structure of the statute, other
federal law, and state codes, the Supreme Court ultimately concluded that, “in
the context of statutory rape offenses that criminalize sexual intercourse based
solely on the age of the participants, the generic federal definition of sexual
abuse of a minor requires that the victim be younger than 16.” Id. at 1568–73.
Because the California statute at issue criminalized sexual intercourse with
an individual who was 17, the defendant’s California conviction did not qualify
under the generic offense of sexual abuse of a minor. Id. at 1572. Importantly,



      10 Although recognizing that his arguments were foreclosed by precedent, Montanez–
Trejo had asked us to hold his case pending the decision in Esquivel–Quintana.
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                                     No. 16-41088
the Supreme Court explicitly stated that, given this result, it need not reach
the issue of whether the generic offense of sexual abuse of a minor includes as
an element a minimum age differential between the victim and the
perpetrator. See id. (“We leave for another day whether the generic offense
requires a particular age differential between the victim and the
perpetrator . . . .”).
       In light of Esquivel–Quintana, we requested and received supplemental
briefs from the parties addressing its effects.           As an initial matter, the
Government recognized that Esquivel–Quintana rejected our conclusion in
Rodriguez that the generic offense of sexual abuse of a minor encompasses
state statutes defining minor to include individuals who are younger than 18
(rather than only individuals who are younger than 16). Thus, the Government
now concedes that Montanez–Trejo’s argument is no longer foreclosed by
Rodriguez. 11
       Regarding the merits, Montanez–Trejo renews his argument that his
Nebraska conviction is broader than the generic meaning of sexual abuse of a
minor because (1) the generic definition requires a four year age differential
between the victim and the perpetrator, and (2) consensual sexual activity
between close-in-age individuals is not within the generic meaning of abuse.
Montanez–Trejo recognizes that Esquivel–Quintana held only that the generic
definition included victims who are younger than 16 and expressly left open
the question of whether the generic definition includes an age differential
requirement. That being said, Montanez–Trejo claims that “[i]t clearly and
obviously follows from that holding that consensual sexual conduct engaged in


       11 As noted above, Rodriguez addressed the distinct issues of whether the generic
offense of sexual abuse of a minor has a maximum age limit of 16 and whether there is an
age differential requirement. Esquivel–Quintana’s holding concerned only the former issue.
The Government does not expressly argue that our holding in Rodriguez with respect to the
age differential requirement still controls.
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                                 No. 16-41088
by a person one day below 16 and someone only three years older, and where
the older partner does not occupy a special position of trust in relation to the
younger partner, is not sexual abuse of a minor either.”       Montanez–Trejo
attempts to a draw a line between his argument that there is a four year age
differential requirement (which he concedes cannot meet the second prong of
plain error review) and his argument that consensual sexual activity (short of
intercourse) between individuals only three years apart cannot constitute
“abuse” (which he contends is sufficiently clear to succeed under plain error
review following Esquivel–Quintana).
      The Government counters that, regardless of the merits, any error is not
clear or obvious, and thus, Montanez–Trejo fails to meet the second prong of
plain error review. We agree. As we have noted before, “[a]n error is not plain
under current law if a defendant’s theory requires the extension of precedent.”
United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (internal quotation
marks omitted) (quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir.
2010)). Indeed, we have described the second prong as requiring an “error so
clear or obvious that ‘the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant[’]s timely assistance in detecting
it.’” Trejo, 610 F.3d at 319 (quoting United States v. Hope, 545 F.3d 293, 295–
96 (5th Cir. 2008)). Here, with respect to whether the generic offense has a
minimum age differential requirement, the Supreme Court expressly left open
that question in Esquivel–Quintana. By definition, we would need to extend
precedent or make new law (especially considering that our prior precedent
foreclosed such an argument). Such an error, if it exists, is insufficient to
qualify as plain error. See, e.g., Lucas, 849 F.3d at 645 (“We have not directly
addressed a situation in which deposition testimony of a criminal defendant is
summarized by a prosecution witness, so finding the error is an ‘extension of
precedent.’” (quoting Trejo, 610 F.3d at 319)); Ellis, 564 F.3d at 377 (“Our
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    Case: 16-41088        Document: 00514143138      Page: 15    Date Filed: 09/05/2017



                                      No. 16-41088
narrative of the decisional path this court would have to traverse to resolve the
merits of defendant’s objection to his sentence, an objection never made to the
trial court, makes plain beyond peradventure than any error was not plain.”).
      Similarly, we also reject Montanez–Trejo’s argument that it clearly
follows from Esquivel–Quintana that consensual sexual activity (short of
intercourse) between individuals only three years apart is not abuse within the
scope of the generic offense of sexual abuse of a minor. Montanez–Trejo’s
argument on this point amounts to the following: given that Esquivel–
Quintana held that sexual intercourse between an individual who is 16 and an
individual who is 19 is not sexual abuse of a minor, then sexual activity (short
of intercourse) between an individual who is one day younger than 16 and an
individual who is 19 must also not be sexual abuse of a minor. That conclusion
is far from clear based on Esquivel–Quintana’s holding and Montanez–Trejo
points to no caselaw from this court requiring such a result.                Thus, this
argument similarly fails to meet the second prong of plain error review. See,
e.g., Lucas, 849 F.3d at 645; Ellis, 564 F.3d at 377.
                                 III. CONCLUSION
      For the foregoing reasons, we AFFIRM Montanez–Trejo’s conviction and
sentence.      We REMAND to the district court for the limited purpose of
correcting the judgment to reflect the correct statute of conviction: 8 U.S.C.
§ 1326(b)(1), not § 1326(b)(2). 12




      12   Montanez–Trejo’s pending motion to stay the appeal is DENIED as moot.
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