UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-40216
__________________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
MARTIN VELAZQUEZ-OVERA,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
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(November 15, 1996)
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal requires the court to resolve a question of first
impression in this circuit: whether a state penal statute
proscribing indecency with a child is a crime of violence for the
purpose of sentence enhancement under Section 2L1.2 of the United
States Sentencing Guidelines. We hold that indecency with a child
involving sexual contact, a felony under Texas law, is a crime of
violence because it entails a substantial risk that physical force
may be used against the victim. Rejecting the appellant’s attacks
on the sentence imposed by the district court, we affirm the
judgment and sentence of the district court.
I.
Martin Velazquez-Overa, a citizen of Mexico, was deported from
the United States as a criminal alien on May 3, 1995. Velazquez-
Overa previously had been convicted in Texas state court of four
felony offenses of indecency with a child. Tex. Penal Code Ann. §
21.11 (West 1994 & Supp. 1996). These offenses took place during
a sixteen-month period in 1993 and 1994 and involved four different
female victims. The headings of three of the state indictments
listed the charge against Velazquez-Overa as “INDECENCY WITH A
CHILD -- SEXUAL CONTACT.” The heading of the fourth indictment
listed the charge simply as “INDECENCY WITH A CHILD” but the text
of the indictment specified that this offense too involved “sexual
contact [with] a child younger than 17 years of age.” Velazquez-
Overa was assessed a term of imprisonment of ten years as to each
of these convictions.
Four days after his deportation, Velazquez-Overa returned to
the United States, and eventually to his home in Winnsboro, Texas.
His presence soon attracted the interest of local police and
federal immigration authorities, who ascertained that Velazquez-
Overa’s presence in the country was unlawful. Velazquez-Overa was
duly indicted in the Eastern District of Texas on one count of
illegal reentry by a criminal alien. 8 U.S.C. § 1326(a), (b)(2).
He pleaded guilty on August 24, 1995, and was sentenced to 90
months in prison on January 22, 1996. He appeals his sentence.
2
II.
The district court calculated Velazquez-Overa’s 90-month
prison term on the basis of the federal sentencing guidelines. See
generally United States Sentencing Commission, Guidelines Manual
(1995). At the heart of the Sentencing Guidelines is a chart, the
Sentencing Table, which indicates the authorized sentence range
based on two independent variables: the defendant’s offense level
and his criminal history category. U.S.S.G. Ch. 5 Pt. A
(Sentencing Table). In this case, the district court assigned
Velazquez-Overa an offense level of 21 and a criminal history
category of VI, yielding an authorized sentence range of 77 to 96
months. See id. Based on the recommendation in the probation
officer’s presentence investigation report, the district court
imposed a sentence of 90 months.
Velazquez-Overa objected to the district court’s calculation
of both his offense level and his criminal history category. He
renews these contentions on appeal, arguing that he should have
been assigned an offense level of 10 and a criminal history
category of V, for a sentence range of 21 to 27 months. See id.
III.
Appellant’s sentence must be affirmed unless it was imposed in
violation of law or was based upon an erroneous application of the
Sentencing Guidelines. See, e.g., United States v. Guadardo, 40
F.3d 102, 103 (5th Cir. 1994); United States v. Ford, 996 F.2d 83,
85 (5th Cir. 1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126
3
L.Ed.2d 670 (1994).1 An appeal challenging the district court’s
interpretation of the Sentencing Guidelines raises a question of
law subject to de novo review. Ford, 996 F.2d at 85 (citation
omitted).
A. Offense Level
The starting point for calculating the sentence of a criminal
alien convicted of illegally reentering the United States is
Section 2L1.2 of the Sentencing Guidelines. See U.S.S.G. § 2L1.2
(Unlawfully Entering or Remaining in the United States); U.S.S.G.
App. A (Statutory Index). That section assigns the defendant a
base offense level of eight. U.S.S.G. § 2L1.2(a). However, if the
defendant previously was deported after being convicted of a felony
(excluding a violation of the immigration laws), his offense level
is increased by four. U.S.S.G. § 2L1.2(b)(1). If the defendant
previously was deported after being convicted of an aggravated
felony, his offense level is increased by sixteen. U.S.S.G. §
2L1.2(b)(2). Consequently, there is a significant difference in
the defendant’s sentence depending on whether his prior offense is
deemed a “felony” or an “aggravated felony.”2
The commentary to Section 2L1.2 defines “aggravated felony” to
1
A sentence also will be vacated if it is an unreasonable
departure from the sentence range authorized by the Guidelines.
See, e.g., Guadardo, 40 F.3d at 103. The district judge did not
depart from the prescribed sentence range in this case.
2
Based on Velazquez-Overa’s criminal history category of
VI, a reduction in his offense level from 21 to 10 would result in
a sentence range of 24 to 30 months, rather than 77 to 96 months.
See U.S.S.G. Ch. 5 Pt. A (Sentencing Table).
4
include:
any crime of violence (as defined in 18 U.S.C. § 16, not
including a purely political offense), for which the term
of imprisonment imposed (regardless of any suspension of
such imprisonment) is at least five years . . . .
U.S.S.G. § 2L1.2, Application Note 7.
Accordingly, whether a crime is an “aggravated felony” within
the meaning of Section 2L1.2(b)(2) turns on the definition in 18
U.S.C. § 16. That statute states:
The term “crime of violence” means--
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.
18 U.S.C. § 16.
Subsection (a) is plainly inapplicable; physical force is not
an element of the crime of indecency with a child as defined by the
state of Texas. Rather, the issue in this appeal is whether the
conduct proscribed by the Texas indecency statute, “by its nature,
involves a substantial risk that physical force . . . may be used
. . . .” 18 U.S.C. § 16(b).
This court not long ago explicated the meaning of the term
“substantial risk” as it is used in the statute. We stated:
A substantial risk that an event may occur does not mean
that it must occur in every instance; rather, a
substantial risk requires only a strong probability that
the event, in this case the application of physical force
during the commission of the crime, will occur.
United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).
5
See id. at 20 n.8 (explaining that “force” in this context means
“destructive or violent force”).
We also explained that the phrase “by its nature” compels a
categorical approach to determining whether an offense is a crime
of violence under Section 16(b). In holding that burglary of a
vehicle or nonresidential building is a violent crime for sentence
enhancement purposes, the court repudiated an earlier suggestion
that sentencing courts may sometimes need to examine the underlying
facts of defendants’ prior convictions. Rodriguez-Guzman, 56 F.3d
at 21 n.14 (criticizing Guadardo, 40 F.3d at 105). The reason is
clear: either a crime is violent “by its nature” or it is not. It
cannot be a crime of violence “by its nature” in some cases, but
not others, depending on the circumstances. There is accordingly
no need to consider the conduct underlying the defendant’s
conviction. A sentencing court need only consider the fact that he
was convicted and the inherent nature of the offense. As we
explained:
If a crime by its nature presents a substantial risk that
force will be used against the property [or person] of
another, then it falls within the ambit of § 16(b)
whether [or not] such force was actually used in the
crime.
Rodriguez-Guzman, 56 F.3d at 21 n.14.
This approach is consistent with the Supreme Court’s opinion
in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990) (holding that burglary is a violent felony for
purposes of sentence enhancement under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)). The Court in Taylor stated that
6
“Congress generally took a categorical approach to predicate
offenses.” 495 U.S. at 601, 110 S.Ct. at 2159. The Court further
noted that “the practical difficulties and potential unfairness of
a factual approach are daunting.” Id. The Court reasoned that
Congress did not intend sentencing hearings to become retrials of
the underlying conduct involved in the defendant’s prior federal or
state convictions. Id. at 601, 110 S.Ct. at 2159-60.
Other circuits have elaborated on the merits of the
categorical approach to predicate offenses. The Eleventh Circuit
explained that the categorical approach is:
consistent with the overall objectives of the [Sentencing
G]uidelines themselves. The guidelines, at least in
part, constitute an effort by the Commission to design a
sentencing system that reduces disparities in the
sentences of defendants convicted of similar crimes.
Taking into account the myriad of subtle differences in
the commission of every recognized crime of violence
would result in as many different sentences.
United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990)
(citation omitted), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114
L.Ed.2d 461 (1991). Accord United States v. Reyes-Castro, 13 F.3d
377, 379 (10th Cir. 1993) (stating that “a court must only look to
the statutory definition, not the underlying circumstances of the
crime,” in deciding whether an offense is “by its nature” a crime
of violence under 18 U.S.C. § 16(b)). See also United States v.
Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992) (explaining that “a
sentencing court is not required to consider the underlying
circumstances . . .”).
The inquiry in this case is whether indecency with a child by
sexual contact, as defined by Section 21.11(a)(1) of the Texas
7
Penal Code, inherently involves a substantial risk that physical
force may be used.3 Two other circuits, considering comparable
sexual crimes against children, have answered in the affirmative.
See Reyes-Castro, 13 F.3d 377 (attempted sexual abuse of a child
under Utah law); Rodriguez, 979 F.2d 138 (lascivious acts with a
child under Iowa law). In addition, at least one circuit reached
a similar conclusion in the context of the career offender
provisions of the Sentencing Guidelines. U.S.S.G. §§ 4B1.1, 4B1.2.
See United States v. Wood, 52 F.3d 272 (9th Cir.) (indecent
liberties with a minor under Washington state law), cert. denied,
--- U.S. ---, 116 S.Ct. 217, 133 L.Ed.2d 148 (1995).4
At the heart of these opinions is the belief “that when an
older person attempts to sexually touch a child under the age of
fourteen, there is always a substantial risk that physical force
3
Section 21.11(a)(1) of the Texas Penal Code provides:
(a) A person commits an offense if, with a child younger
than 17 years and not his spouse, whether the child is of
the same or opposite sex, he:
(1) engages in sexual contact with the child;
or ....
Tex. Penal Code Ann. § 21.11(a)(1).
We are not called upon to decide and do not reach the question
whether an offense of indecency with a child not involving sexual
contact inherently involves a substantial risk of force. Cf. Tex.
Penal Code Ann. § 21.11(a)(2) (prohibiting indecent exposure in a
child’s presence).
4
The definition of “crime of violence” in the career
offender provisions differs somewhat from that in 18 U.S.C. § 16.
The touchstone of “violence” in the career offender provisions is
the risk that physical injury will result, rather than the risk
that physical force may be used to carry out the offense.
Nonetheless, the Ninth Circuit’s reasoning in Wood reinforces the
conclusion in Reyes-Castro and Rodriguez that offenses involving
physical sexual abuse of children are acts of violence.
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will be used to ensure the child’s compliance.” Reyes-Castro, 13
F.3d at 379. The Ninth Circuit elaborated on this view in Wood, a
case involving a four-year-old victim, explaining that when an
adult molests a child,
[T]here is a serious risk of physical harm just in the
very nature of the offense. Such conduct is inherently
violent because the threat of violence is implicit in the
size, age and authority position of the adult in dealing
with such a young and helpless child.
Wood, 52 F.3d at 274 (quoting district court).
The same is true in this case. Appellant was convicted of
sexually molesting children. We think it obvious that such crimes
typically occur in close quarters, and are generally perpetrated by
an adult upon a victim who is not only smaller, weaker, and less
experienced, but is also generally susceptible to acceding to the
coercive power of adult authority figures. A child has very
little, if any, resources to deter the use of physical force by an
adult intent on touching the child. In such circumstances, there
is a significant likelihood that physical force may be used to
perpetrate the crime.
This conclusion draws additional support from our cases
holding that burglary is a crime of violence within the meaning of
18 U.S.C. § 16(b). See Guadardo, 40 F.3d at 103 (citing United
States v. Flores, 875 F.2d 1110 (5th Cir. 1989); United States v.
Cruz, 882 F.2d 922 (5th Cir. 1989)).5 We explained:
5
Flores and Cruz involved the career offender provisions
of the guidelines. At the time, Section 4B1.1 incorporated by
reference the definition of “crime of violence” in 18 U.S.C. § 16.
The definition of violent crime under Section 4B1.1 was amended
subsequently. See Guadardo, 40 F.3d at 103-04 and id. at 104 n.3.
9
Critical to the conclusion in Flores and Cruz is the idea
that whenever a private residence is broken into, there
is always a substantial risk that force will be used.
Guadardo, 40 F.3d at 104. Like-minded courts have elaborated on
the rationale for holding burglary a crime of violence. The
Eleventh Circuit explained:
The reasoning [is] clear: whenever an intruder enters a
dwelling, a person may be present inside, in which case
the alarm to both the intruder and the resident may
result in the use of physical force.
Gonzalez-Lopez, 911 F.2d at 549 (citation omitted). Our circuit
has extended the rule in Guadardo to non-residential burglaries.
See Rodriguez-Guzman, 56 F.3d at 20. If burglary, with its
tendency to cause alarm and to provoke physical confrontation, is
considered a violent crime under 18 U.S.C. § 16(b), then surely the
same is true of the far greater intrusion that occurs when a child
is sexually molested.
We understand appellant to contend, however, that the Texas
indecency statute sweeps too broadly to justify the categorical
conclusion that indecency with a child is “by its nature” a crime
of violence. The Texas indecency statute prohibits two distinct
activities: (1) sexual contact with a child; and (2) exposing one’s
genitals or anus to a child for the purpose of sexual
gratification. Appellant suggests that the latter activity does
not involve a significant risk that force will be used to complete
the crime. We need not resolve this question, for there is no
doubt that appellant was convicted under the statutory provision
10
prohibiting sexual contact with children. Tex. Penal Code Ann. §
21.11(a)(1). Three of his four state indictments list his offense
as “INDECENCY WITH A CHILD -- SEXUAL CONTACT.” This was reflected
in the probation officer’s presentence investigation report, on
which the district court based appellant’s sentence. No contention
was made below or raised on appeal that appellant’s offenses were
not prosecuted under Section 21.11(a)(1).
Thus, without examining the facts underlying appellant’s state
convictions, we hold categorically that indecency with a child
involving sexual contact, under Section 21.11(a)(1) of the Texas
Penal Code, is a crime of violence within the meaning of 18 U.S.C.
16(b). The offense is therefore an aggravated felony as defined in
Section 2L1.2 of the Sentencing Guidelines. Accordingly, we affirm
the district court’s sixteen-level enhancement of appellant’s
offense level.6
B. Criminal History Category
Appellant additionally contends that the district court erred
by counting his four indecency sentences as unrelated. The
guidelines provide that prior sentences imposed in unrelated cases
are to be counted separately. Prior sentences imposed in related
6
Our distinct analytical treatment of the two component
offenses is reinforced by the Texas Penal Code. The state treats
the two offenses as distinct, classifying indecency with a child
involving sexual contact as a second-degree felony and indecent
exposure in a child’s presence as a third-degree felony. See Tex.
Penal Code Ann. § 21.11(c). Cf. United States v. Vasquez-
Balandran, 76 F.3d 648 (5th Cir. 1996) (state’s categorization of
its offenses is informative but does not control our analysis for
sentence enhancement purposes under the guidelines).
11
cases are to be treated as a single sentence for the purpose of
computing a defendant’s criminal history ranking. U.S.S.G. §
4A1.2(a)(2). The guidelines provide that “prior sentences are
considered related if they resulted from offenses that (1) occurred
on the same occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentencing.” Id.,
Application Note 3.
The district court calculated appellant’s criminal history
ranking by assigning the requisite number of criminal history
points for each prior offense as specified in the guidelines.
Velazquez-Overa was given three points for his first indecency
conviction and two points each for the remaining three. In
addition, he was given two points for a 1993 conviction for driving
while intoxicated; one point for a 1993 assault conviction; and one
point for a 1990 conviction for driving while intoxicated. His
point total, 13, placed him in category VI, the highest criminal
history ranking provided for in the Sentencing Guidelines.
Had the district court treated appellant’s four felonies as
related, Velazquez-Overa contends that he would have been assigned
a criminal history ranking of V, rather than VI, further reducing
his sentence.7 Velazquez-Overa argues on appeal that:
These prior convictions should have been treated as
related because the offenses charged were the same, they
were not separated by an intervening arrest, the facts
underlying the convictions were similar in nature, [he]
7
Based on appellant’s offense level of 21, a criminal
history ranking of V would yield a sentence range of 70 to 87
months, rather than 77 to 96 months. See U.S.S.G. Ch. 5 Pt. A
(Sentencing Table).
12
was sentenced at the same time for each of them, and the
sentencing judge ordered the sentences to run
concurrently to each other.
This argument is untenable. Velazquez-Overa’s offenses took
place on four separate dates over the course of sixteen months and
involved four different victims. His crimes were not united by a
common scheme or plan; crimes are not deemed related under the
guidelines merely because the perpetrator employed a consistent
modus operandi. Appellant’s argument to the contrary runs afoul of
our precedents, which clearly establish that “[s]imilar crimes are
not necessarily related crimes.” United States v. Garcia, 962 F.2d
479, 482 (5th Cir.) (citations and internal quotation marks
omitted), cert. denied, 506 U.S. 902, 113 S.Ct. 293, 121 L.Ed.2d
217 (1992).
Finally, appellant’s indecency cases were not consolidated for
trial or sentencing, despite the fact that appellant was sentenced
simultaneously for at least three of the offenses. This court
repeatedly has rejected the idea that “sentencing two distinct
cases on the same day necessitates a finding that they are
consolidated.” Id. (citations omitted). We also consistently have
rejected the idea “that cases must be considered consolidated
simply because two convictions have concurrent sentences.” Id.
(citations omitted). See also United States v. Paulk, 917 F.2d
879, 884 (5th Cir. 1990). Moreover, as we have recognized in the
past, there can be no informal consolidation of offenses under
Texas law. Garcia, 962 F.2d at 483 (citations omitted). In this
case, as in Garcia, the record reflects no effort by the state of
13
Texas to consolidate the prosecution of appellant’s four distinct
offenses.
Velazquez-Overa’s four sexual offenses were unrelated, fully
justifying the district court’s criminal history calculations.
AFFIRMED.
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