                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     August 15, 2007

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 06-41068
                        _______________________

                       UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellees,

                                  versus

                     HERIBERTO JARAMILLO-ESTRADA,

                                                     Defendant-Appellant.


          On Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 7:05-CR-00718


Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

           Defendant     Heriberto    Jaramillo-Estrada      (“Jaramillo”)

appeals his forty-six month sentence for attempted illegal reentry,

arguing that the district court erred by enhancing his offense

level by sixteen levels based on a determination that his prior

Indiana state court conviction for sexual battery constituted a

crime of violence.     See U.S.S.G. § 2L1.2(b)(1)(A)(ii).        We affirm.

           Jaramillo contends that the Indiana statute criminalizes

both forcible sex offenses and offenses where there is assent-in-

fact, but that assent is rendered a legal nullity due to a mental



     *
            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opinion should not be published and is not precedent except under the limited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.
disability or deficiency, see IND. CODE § 35-42-4-8, and therefore

cannot    form   the    basis     of    a   crime    of    violence       enhancement.

See United States v. Luciano-Rodriguez, 442 F.3d 320, 321-22 (5th

Cir.), cert. denied, ---U.S.---, 127 S. Ct. 747 (2006).                             This

court, however, only need consider whether the subsection under

which Jaramillo was convicted, not the statute in its entirety,

constitutes      a   crime   of        violence.          See    United    States    v.

Izaguirre-Flores, 405 F.3d 270, 273 n.6 (5th Cir.), cert. denied,

546 U.S. 905, 126 S.Ct. 253 (2005).                 To determine the applicable

subsection, the court can refer “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.”                United States v. Fernandez-Cusco,

447 F.3d 382, 386 (5th Cir. 2006)(quoting Shepard v. United States,

544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005)).

            At his plea hearing, Jaramillo admitted the facts alleged

in the “Affidavit of Probable Cause.”               A review of this affidavit,

which    describes     repeated       molestations     and      the   victim’s   fear,

confirms that Jaramillo was convicted under subsection (1) of the

Indiana sexual battery statute, “compell[ing someone] to submit to

the touching by force or the imminent threat of force,” rather than

subsection    (2),     touching       another   person      who   is   “so    mentally

disabled or deficient that consent to the touching cannot be

given.”      IND. CODE ANN.       §    35-42-4-8.         Because     subsection    (1)

                                            2
constitutes a “forcible sex offense,” the district court did not

err by enhancing Jaramillo’s base offense level.   See U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iii).

          AFFIRMED.




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