  Case: 10-41203    Document: 00511947460     Page: 1   Date Filed: 08/07/2012




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

                                                                  FILED
                                                                 August 7, 2012
                                No. 10-41203
                                                                 Lyle W. Cayce
                                                                      Clerk


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

MIGUEL RAFAEL ROMERO-ROSALES,

                                           Defendant-Appellant.




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




Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


                                      I.
      Miguel Rafael Romero-Rosales, an alien, was charged with being unlaw-
fully and knowingly present in the United States after deportation in violation
of 8 U.S.C. § 1326. He entered a guilty plea, and the district court sentenced
him to forty-one months’ imprisonment and two years’ supervised release.
   Case: 10-41203      Document: 00511947460         Page: 2     Date Filed: 08/07/2012




                                      No. 10-41203

       The presentence report enhanced the base offense level by sixteen on the
ground that Romero-Rosales’s 1992 Florida conviction of “lewd, lascivious act
upon a child under 16 years of age” constituted an enumerated crime of violence
(“COV”) under U.S.S.G. § 2L1.2. Romero-Rosales objected to that finding, argu-
ing that the statute under which he was convicted, FLA. STAT. § 800.04, was
broader than the federal COV, and none of the conviction documents indicated
that his conduct fell under any of the enumerated COV offenses. The court over-
ruled the objection, and Romero-Rosales appeals.


                                             II.
       Whether the district court erred in holding that the conviction constitutes
“sexual abuse of a minor” (“SAM”), and is thus a COV under the guidelines is a
question that this court reviews de novo.1 The issue is whether the Florida con-
viction constitutes the enumerated offense of SAM and is thus a COV within the
meaning of § 2L1.2. For purposes of sentencing, a crime is a COV if (1) one of its
elements involves physical force or (2) it constitutes an enumerated offense,
including SAM. Carbajal-Diaz, 508 F.3d at 807. Therefore, if Romero-Rosales’s
conviction constitutes SAM, it automatically satisfies the definition of a COV.
       In determining whether a specific offense qualifies as an enumerated
offense, we employ a “common sense approach” based on the “generic, contempo-
rary meaning” of the terms at issue. United States v. Moreno-Florean, 542 F.3d
445, 449 (5th Cir. 2008). The generic and contemporary meaning of SAM centers
on “(1) whether the defendant’s conduct involved a [minor]; (2) whether the con-


       1
         See United States v. Carbajal-Diaz, 508 F.3d 804, 807 (5th Cir. 2007); United States
v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005).

                                             2
  Case: 10-41203    Document: 00511947460     Page: 3    Date Filed: 08/07/2012




                                 No. 10-41203

duct was ‘sexual’; and (3) whether the sexual conduct was ‘abusive.’” United
States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008). Conduct is “abusive”
if it “involves taking undue or unfair advantage of the minor and causing such
minor psychologicalSSif not physicalSSharm.” Izaguirre-Flores, 405 F.3d at 275-
76. To determine whether Romero-Rosales’s conviction meets this definition of
SAM, we first look to the Florida statute under which he was convicted:
      A person who:

      (1) Handles, fondles[,] or makes an assault upon any child under the
      age of 16 years in a lewd, lascivious, or indecent manner;

      (2) Commits actual or simulated sexual intercourse, deviate sexual
      intercourse, sexual bestiality, masturbation, sadomasochistic abuse,
      actual lewd exhibition of the genitals, or any act or conduct which
      simulates that sexual battery is being or will be committed upon
      any child under the age of 16 years or forces or entices the child to
      commit any such act;

      (3) Commits an act defined as sexual battery under § 794.011(1)(h)
      upon any child under the age of 16 years; or

      (4) Knowingly commits any lewd or lascivious act in the presence of
      any child under the age of 16 years,

      without committing the crime of sexual battery, commits a felony of
      the second degree, punishable as provided in § 775.082, § 775.083,
      or § 775.084. Neither the victim’s lack of chastity nor the victim’s
      consent is a defense to the crime proscribed by this section.

FLA. STAT. § 800.04 (1990).
      Romero-Rosales argues that this statute is broader than the offense of
SAM because it encompasses some acts that do not involve victim contact and
thus do not qualify as SAM. Specifically, § 800.04(4) requires only that the

                                       3
   Case: 10-41203      Document: 00511947460         Page: 4    Date Filed: 08/07/2012




                                      No. 10-41203

defendant knowingly commit an indecent act that a child sees or senses and does
not require that the defendant knowingly take advantage of the child or commit
the act with the intent of gratifying himself or another person. Because there
are multiple subdivisions within the Florida statute, Romero-Rosales argues
that we must assume he was convicted under the least culpable subdivision,
§ 800.04(4), which he contends does not qualify as SAM.
       Even assuming that not all subdivisions of the Florida statute constitute
SAM,2 the language of the statute is not the court’s only source of interpretation.
The court may look to certain adjudicative records to determine “which subpart
of the statute formed the basis for [] conviction.” United States v. Mungia-
Portillo, 484 F.3d 813, 815 (5th Cir. 2007). The scope of acceptable documents
at this stage of the inquiry is limited to “the charging document, written plea
agreement, transcript of the plea colloquy, and any explicit factual findings by
the trial judge to which the defendant assented.” United States v. Murillo-Lopez,
444 F.3d 337, 340 (5th Cir. 2006) (internal citations and quotations omitted).
       The record contains a copy of the judgment and information relating to
Romero-Rosales’s conviction. He pleaded guilty to count one of the information
charging him with lewd and lascivious acts in the presence of a child, which
reads, in part, as follows:
       [Romero-Rosales] did handle, fondle or make an assault upon . . . a
       female child under the age of sixteen years, in a lewd, lascivious, or
       indecent manner, or did commit an act defined as sexual battery,
       under Section 794.011(1)(h) upon a child under the age of sixteen


       2
        The Eleventh Circuit addressed the Florida statute as a whole and classified it as a
COV, advocating a broad definition of SAM. In United States v. Padilla-Reyes, 247 F.3d 1158,
1161-64 (11th Cir. 2001), the court affirmed that the ordinary meaning and common usage of
SAM includes acts that involve victim contact as well as acts that do not.

                                             4
   Case: 10-41203    Document: 00511947460      Page: 5   Date Filed: 08/07/2012




                                  No. 10-41203

      years or did knowingly commit any lewd or lascivious act in the
      presence of a child under the age of sixteen, to-wit: the defendant,
      MIGUEL ROMERO-ROSALES, did have sexual intercourse with the
      victim, without the intent to commit the crime of sexual battery, in
      violation of Florida Statute 800.04.

(Emphasis added). The information tracks the language of § 800.04(1), (3),
and (4), and the judgment refers specifically to § 800.04. Although it does not
explicitly indicate which subpart Romero-Rosales was convicted under, it pro-
vides the specific facts that he had sexual intercourse with a child under the age
of 16, which eliminates the possibility that he violated § 800.04(4). It also rules
out the possibility that he violated § 800.04(3), because he had intercourse with
the victim “without the intent to commit the crime of sexual battery,” which is
required for § 800.04(3). Instead, Romero-Rosales must have violated either
§ 800.04(1) or (2), both of which, the government contends, constitute SAM.
      Romero-Rosales argues that the factual description of his violation in the
information may not be used to identify the subsection under which he was con-
victed. Instead, he urges the court to consider whether the least culpable sub-
section, § 800.04(4), satisfies the generic and contemporary meaning of SAM.
Although the court must “ground [its] analysis in the statute of conviction rather
than the defendant’s specific conduct,” United States v. Munoz-Ortenza, 563 F.3d
112, 114 (5th Cir. 2009), it may also use specific facts provided in the informa-
tion to “define the crime with a somewhat greater level of specificity.” Carbajal-
Diaz, 508 F.3d at 808-09. Despite the fact that the information is worded in the
disjunctive and tracks the language of multiple subsections of the statute, it spe-
cifically alleges that Romero-Rosales’s actual violation was “sexual intercourse”
with a child under the age of sixteen. These facts place the violation squarely

                                        5
   Case: 10-41203       Document: 00511947460         Page: 6     Date Filed: 08/07/2012




                                       No. 10-41203

within § 800.04(1) or (2), so the court is not obligated to consider only the least
culpable conduct under the statute.
       The question remains whether a violation of § 800.04(1) or (2) meets the
generic and contemporary meaning of SAM.                  Although this court has not
addressed whether a conviction under § 800.04 constitutes SAM, it is plain that
sexual intercourse with a minor meets the definition. See United States v.
Ramos-Sanchez, 483 F.3d 400, 402-03 (5th Cir. 2007). This court has also
adopted a broad definition of SAM in the context of other statutes. In United
States v. Barragan-Diaz, 408 F. App’x. 862, 863-64 (5th Cir. 2011), we held that,
under plain-error review, a conviction under § 800.04(4), knowingly committing
a lewd or lascivious act in the presence of a minor, satisfies the definition of a
COV for purposes of § 2L1.2’s sentencing enhancement.3
       If indecent exposure, without any actual victim contact, is sufficient to con-
stitute SAM, then “common sense dictates that an adult’s sexual contact with a
child . . . also constitutes [SAM] . . . .” Najera-Najera, 519 F.3d at 512 (internal
citations and quotations omitted). Therefore, the district court did not err in
finding that Romero-Rosales’s conviction under § 800.04 constitutes SAM and
is thus a COV within the meaning of § 2L1.2.
       The judgment is AFFIRMED.




       3
         See also United States v. Balderas-Rubio, 499 F.3d 470, 474 (5th Cir. 2007) (holding
that an Oklahoma conviction of indecent or lewd acts with a child under sixteen constituted
SAM within the meaning of U.S.S.G. § 2L1.2); United States v. Zavala-Sustaita, 214 F.3d
601, 604 (5th Cir. 2000) (holding that indecent exposure with children under seventeen in vio-
lation of the Texas Penal Code constitutes SAM for purposes of the COV enhancement).

                                              6
