United States v. Rodriguez

• Citation: 698 F.3d 220
• Decision Date: 03 October 2012
• Docket Number: No. 11–20881.,11–20881.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jorge Cabecera RODRIGUEZ, also known as Jorge Cebecera, also known as Jorge Paul Cabecera, also known as Jorge P. Cabecera, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

698 F.3d 220

UNITED STATES of America, Plaintiff–Appellee,

v.Jorge Cabecera RODRIGUEZ, also known as Jorge Cebecera, also known as Jorge Paul Cabecera, also known as Jorge P. Cabecera, Defendant–Appellant.

No. 11–20881.

United States Court of Appeals,Fifth Circuit.

Oct. 3, 2012.

James Lee Turner, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Houston, TX, for Defendant–Appellant.

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

Before STEWART, Chief Judge, and DeMOSS and GRAVES, Circuit Judges.

PER CURIAM:

Jorge Cabecera Rodriguez (“Rodriguez”) pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to twenty-three months imprisonment. Rodriguez now challenges his sentence, arguing that the district court erred when it applied a sixteen-level crime of violence enhancement based on a prior Texas conviction for sexual assault of a child. Because Rodriguez's argument is foreclosed by circuit precedent, we AFFIRM.

BACKGROUND

Rodriguez was charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2), and pleaded guilty without the benefit of a plea agreement. At sentencing, the district court applied a sixteen-level crime of violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Rodriguez's 2003 Texas conviction for sexual of assault of a child under Tex. Penal Code § 22.011(a)(2). Rodriguez objected to the enhancement, arguing that the Texas offense is not a crime of violence because it criminalizes conduct that falls outside of the generic, contemporary meaning of the offenses enumerated in the Guidelines. SeeU.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). The district court overruled the objection. Rodriguez's total offense level was twenty-one and his criminal history category was III, which gave him an advisory Guidelines range of forty-six to fifty-seven months. The district court granted Rodriguez a downward variance and sentenced him to twenty-three months imprisonment.

DISCUSSION

The district court's conclusion that Rodriguez's prior Texas conviction constitutes a crime violence is a question of law that we review de novo. United States v. Najera–Najera, 519 F.3d 509, 510 (5th Cir.2008). Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a sixteen-level enhancement if the “defendant previously was deported, or unlawfully remained in the United States, after a conviction for a felony that is ... a crime of violence.” An offense constitutes a crime of violence if it includes as an element “the use, attempted use, or threatened use of physical force,” or if it is among the enumerated offenses provided in the Guidelines. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). The crimes of statutory rape and sexual abuse of a minor are included in the list of enumerated offenses. Id.

We employ a common sense approach when determining whether a prior conviction constitutes one of the enumerated crimes of violence in the Guidelines. United States v. Sanchez, 667 F.3d 555, 560 (5th Cir.2012). “We determine ‘whether a prior conviction constitutes an enumerated offense as that offense is understood in its ordinary, contemporary, [and] common meaning.’ ” Id. at 560–61 (quoting United States v. Murillo–Lopez, 444 F.3d 337, 339 (5th Cir.2006)) (alteration in original). “If the state definition for an offense is broader than the generic definition, a conviction under that state's law cannot serve as a predicate for the enhancement.” United States v. Ellis, 564 F.3d 370, 372 (5th Cir.2009).

The Texas statute at issue criminalizes sexual intercourse with a child, defined as a person under the age of seventeen. Tex. Penal Code § 22.011(a)(2), (c)(1). Rodriguez argues that the Texas offense is broader than the generic, contemporary definitions of sexual abuse of a minor and statutory rape because it sets the age of consent at seventeen and criminalizes sexual activity when there is more than three years age difference between the defendant and victim.¹See id. § 22.011(a)(2), (c)(1), (e)(2). Rodriguez contends that most jurisdictions set the age of consent at sixteen and require that there be more than four years age difference between the actor and victim before criminal liability for statutory rape or sexual abuse of a minor can attach.

As Rodriguez acknowledges, however, this court has squarely held that the offense defined in Tex. Penal Code § 22.011(a)(2) constitutes “statutory rape” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Alvarado–Hernandez, 465 F.3d 188, 189–90 (5th Cir.2006); see also Sanchez, 667 F.3d at 566;United States v. Castro–Guevarra, 575 F.3d 550, 552 (5th Cir.2009).² “This court has [also] held that the crime of sexual assault of a child under Tex. Penal Code § 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.” Castro–Guevarra, 575 F.3d at 552–53 (citing United States v. Martinez–Vega, 471 F.3d 559, 562 (5th Cir.2006)); see also Sanchez, 667 F.3d at 566.

“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008). Rodriguez points to no change in the law that would allow this panel to decide the issue differently than prior panels of this court. Accordingly, we are bound by those decisions.

CONCLUSION

For the foregoing reasons, the sentence imposed by the district court is

AFFIRMED.

GRAVES, Circuit Judge, concurring:

I agree that Rodriguez's challenge based on the definition of “minor” is foreclosed by this court's earlier decisions holding that Texas Penal Code § 22.011(a)(2) constitutes both “statutory rape” and “sexual abuse of a minor” for the purposes of the § 2L1.2 sentencing enhancement. I write separately to emphasize that these decisions are unsupported by the proper analysis and are inconsistent with other well-reasoned decisions of this court.

We have held, consistent with Supreme Court precedent, that an undefined offense enumerated in the Sentencing Guidelines must be given a “uniform definition” based on its “generic, contemporary meaning.” United States v. Dominguez–Ochoa, 386 F.3d 639, 642–43 (5th Cir.2004) (citing Taylor v. United States, 495 U.S. 575, 593–94, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). We have also held that the “generic, contemporary meaning” of “statutory rape” sets the age of consent at sixteen, and have at least strongly implied that the “generic, contemporary meaning” of “sexual abuse of a minor” defines a “minor” as a person under sixteen. See United States v. Lopez–DeLeon, 513 F.3d 472, 475 (5th Cir.2008); United States v. Munoz–Ortenza, 563 F.3d 112, 115–16 (5th Cir.2009). Based on these precedents, the Texas statute, which sets the age of consent at seventeen, is unequivocally overbroad. Furthermore, as explained below, no published opinion of this court dealing with a § 2L1.2 enhancement based on Texas Penal Code § 22.011(a)(2) includes any definition or analysis of the generic meaning of either “statutory rape” or “sexual abuse of a minor” to support its holding.

Rodriguez also argues that the “generic, contemporary” meaning of “sexual abuse of a minor” requires at least a four-year age difference between the victim and the defendant. Accordingly, Rodriguez contends that Texas Penal Code § 22.011(a)(2) is overbroad because it requires only a three-year age difference. Because this court has never addressed a challenge to section 22011(a)(2) or any analogous statute based on this age differential, I do not agree that this challenge is foreclosed by circuit precedent. However, as explained below, this challenge fails on the merits.

I. Definition of “Minor”A. Cases Interpreting Texas Penal Code § 22.011(a)(2)

i. Statutory rape

In United States v. Alvarado–Hernandez, 465 F.3d 188, 189–90 (5th Cir.2006), this court held that the defendant's prior conviction under Texas Penal Code § 22.011(a)(2) met the “common-sense definition” of “statutory rape” under § 2L1.2. Citing United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir.2006), the court noted that a “common sense approach” must be used to determine whether “the defendant's offense qualifies as an enumerated offense in the Guidelines,” which “requires a determination of the generic and contemporary meaning” of the enumerated offense. Id. at 189. This court previously recognized in Sanchez–Ruedas that “[f]or sources of generic contemporary meaning, we consider, inter alia, the Model Penal Code, Professors LaFave and Scott's treatise, modern state cases, and dictionaries.” Sanchez–Ruedas, 452 F.3d at 412. However, the court discussed none of these sources in Alvarado–Hernandez, stating simply that:

The Texas statute at issue meets a common sense definition of “statutory rape.” This statute punishes consensual sexual intercourse with a child, defined as a person younger than the age of seventeen. Alvarado–Hernandez's prior conviction was based on an indictment that charged him with having consensual sexual intercourse with a fourteen-year-old victim, sufficient to meet a common-sense as well as a generic, contemporary definition of statutory rape.

Alvarado–Hernandez, 465 F.3d at 189–90 (citations omitted). Although Alvarado–Hernandez argued that the Texas statute was categorically overbroad because it set the age of consent at seventeen rather than sixteen, the court neither acknowledged nor discussed this argument.

Because the court relied upon the specific facts of that case showing that a fourteen-year-old victim was involved and presented no analysis dealing with the “generic, contemporary” definition of “statutory rape,” its opinion cannot be fairly construed as holding that Texas Penal Code § 22.011(a)(2)...