Case: 09-51097 Document: 00511341486 Page: 1 Date Filed: 01/05/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2011
No. 09-51097
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ANTONIO OLALDE-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Jose Antonio Olalde-Hernandez pleaded guilty to one count of illegal
reentry into the United States following deportation under 8 U.S.C. § 1326 and
was sentenced to seventy months of imprisonment. He argues that his sentence
was improperly enhanced because his prior Georgia conviction for child
molestation was not a “crime of violence,” as the term is used in the United
States Sentencing Guidelines (U.S.S.G), and that his sentence violates due
process. We affirm.
I.
With respect to his first argument, Olalde-Hernandez contends that the
district court erred by concluding that his conviction for child molestation under
Georgia Code § 16-6-4(a) constitutes a “crime of violence” under U.S.S.G.
Case: 09-51097 Document: 00511341486 Page: 2 Date Filed: 01/05/2011
No. 09-51097
§ 2L1.2(b)(1)(A)(ii). In particular, he argues that child molestation under
Georgia law is not a “crime of violence” because (1) the term “molestation” is not
one of the enumerated offenses defining the term “crime of violence,” and (2) the
Georgia statute encompasses criminal conduct that does not require evidence of
force or violence and lacks as an element the use of force or violence. The
government contends that Georgia’s child-molestation statute constitutes
“sexual abuse of a minor,” which is an enumerated “crime of violence” under the
sentencing guidelines. For the following reasons, we agree with the government
and affirm the district court’s determination that child molestation under
Georgia Code § 16-6-4(a) constitutes a “crime of violence.”
Because Olalde-Hernandez raised this argument before the district court,
we review the district court’s characterization of a prior conviction as a “crime
of violence” de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th
Cir. 2005); see also United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.
2004) (en banc). Under the sentencing guidelines, an alien convicted of illegal
reentry pursuant to 8 U.S.C. § 1326 is subject to a sixteen-level sentencing
enhancement if the alien was previously removed, or unlawfully remained in the
United States, after conviction for a crime of violence. U.S.S.G. §
2L1.2(b)(1)(A)(ii). The application note to § 2L1.2 defines the term “crime of
violence” as being either (a) any of a list of specified enumerated offenses,
including “sexual abuse of a minor,” or (b) “any other offense under federal,
state, or local law that has as an element the use, attempted use, or threatened
use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). Applying this two-prong definition, if we conclude that Georgia’s
child-molestation statute falls within the enumerated offense of “sexual abuse
of a minor,” our inquiry is at an end, and there is no need to determine whether
Georgia’s statute has as an element the use of force. See United States v.
Balderas-Rubio, 499 F.3d 470, 474 n.5 (5th Cir. 2007).
2
Case: 09-51097 Document: 00511341486 Page: 3 Date Filed: 01/05/2011
No. 09-51097
“In deciding whether a prior statute of conviction qualifies as a crime of
violence, this court has alternatively employed (1) a ‘common sense approach,’
defining the offense according to its ‘ordinary, contemporary, [and] common
meaning,’ or (2) a ‘categorical approach,’ defining the offense according to a
‘generic, contemporary definition.’” United States v. Mungia-Portillo, 484 F.3d
813, 816 (5th Cir. 2007) (alteration in original) (citations omitted). The
particular approach used depends on
whether the prior offense constitutes a crime of violence (1) because
it is an enumerated offense or (2) because it has as an element the
use or attempted use of force. If it is the former, then the common
sense approach is used; if it is the latter, then the categorical
approach is used.
Id. (citation omitted). Olalde-Hernandez urges this court to use a “categorical
approach.” This approach, however, is appropriate only if this court determines
that the prior offense at issue does not actually constitute an enumerated “crime
of violence.” See Izaguirre-Flores, 405 F.3d at 274-75 (noting that a “common
sense approach to the question satisfies us” where the court only analyzes
whether the offense at issue is an enumerated offense). Accordingly, we use a
“common sense approach” to determine whether Olalde-Hernandez’s prior
conviction for child molestation constitutes “sexual abuse of a minor” as that
term is understood in its “ordinary, contemporary, [and] common meaning.” See
id. at 275 (internal quotation marks omitted); see also United States v. Munoz-
Ortenza, 563 F.3d 112, 114 (5th Cir. 2009). If the statute of conviction prohibits
behavior that is not within the plain, ordinary meaning of the enumerated
offense, the prior offense is not a “crime of violence.” Mungia-Portillo, 484 F.3d
at 816. “We ground this analysis in the statute of conviction rather than the
defendant’s specific conduct.” Munoz-Ortenza, 563 F.3d at 114.
In ascertaining whether a particular offense constitutes a crime of
violence, this court looks “‘only to the particular subdivision of the statute under
which the defendant was convicted.’” United States v. Najera-Najera, 519 F.3d
3
Case: 09-51097 Document: 00511341486 Page: 4 Date Filed: 01/05/2011
No. 09-51097
509, 511 (5th Cir. 2008) (citing United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006)). Olalde-Hernandez was convicted under Georgia Code § 16-6-
4(a) of one count of child molestation. Under that statute, “[a] person commits
the offense of child molestation when such person . . . [d]oes any immoral or
indecent act to or in the presence of or with any child under the age of 16 years
with the intent to arouse or satisfy the sexual desires of either the child or the
person.” Ga. Code Ann. § 16-6-4(a). To determine whether an offense qualifies
as “sexual abuse of a minor,” this court has focused on three elements:
“(1) whether the defendant’s conduct involved a [minor]; (2) whether the conduct
was ‘sexual’; and (3) whether the sexual conduct was ‘abusive.’”1 Najera-Najera,
519 F.3d at 511. Here, the conduct proscribed by § 16-6-4(a) certainly involves
a minor. See United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000)
(“[A] child younger than 17 years . . . is clearly a minor.” (internal quotation
marks omitted)); see also Munoz-Ortenza, 563 F.3d at 115 (noting that “[t]hirty-
nine states, federal law, and the Model Penal Code define minor as one under
sixteen (or younger) . . . [,] [f]ive states define minor . . . as one under seventeen[,
and] [s]ix states and the District of Columbia define minor as one under
eighteen”).
With respect to the second and third elements, this court has noted that
the term “sexual” is defined as “‘of, relating to, or associated with sex as a
characteristic of an organic being,’” and the term “abuse” is defined as “to ‘take
unfair or undue advantage of’ or ‘to use or treat so as to injure, hurt, or
damage.’” Izaguirre-Flores, 405 F.3d at 275 (quoting Webster’s Third New
International Dictionary 8, 2082 (1986)); see also Zavala-Sustaita, 214 F.3d at
604 (defining “sexual” as “‘[o]f, pertaining to, affecting, or characteristic of sex,
1
Olalde-Hernandez does not even attempt to argue that the proscribed conduct fails
to satisfy this three-part test. He fails to present any arguments supporting his bald assertion
that Georgia’s child-molestation statute does not qualify as an enumerated offense under the
Sentencing Guidelines.
4
Case: 09-51097 Document: 00511341486 Page: 5 Date Filed: 01/05/2011
No. 09-51097
the sexes, or the sex organs and their functions,’” and “abuse” as “‘[t]o use
wrongly or improperly’ or ‘[t]o hurt or injure by maltreatment’” (quoting The
American Heritage Dictionary 70, 1124 (2d College ed. 1982)). The proscribed
conduct meets both of these criteria.
Applying these definitions, this court has previously held that an act is
“sexual” when it “must have sexual arousal or gratification as its purpose.”
Zavala-Sustaita, 214 F.3d at 604; see also Izaguirre-Flores, 405 F.3d at 275.
Accordingly, a violation under § 16-6-4(a) is “sexual” because it must occur “with
the intent to arouse or satisfy the sexual desires of either the child or the
person.” Ga. Code Ann. § 16-6-4(a). In addition, as in Izaguirre-Flores, the
proscribed conduct is also “abusive” because the prohibited act “involves taking
undue or unfair advantage of the minor and causing such minor
psychological—if not physical—harm.” 405 F.3d at 275-76; see also United
States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008) (“Georgia courts have
‘strictly construed’ § 16-6-4 to require that the molestative act occur in the
presence of the child and, it appears, that the child be aware of the perpetrator’s
presence.” (citing Vines v. State, 499 S.E.2d 630, 631 (Ga. 1998)). Simply put,
the best “ordinary, contemporary, common” reading of the phrase “sexual abuse
of a minor” is that it encompasses a violation of Georgia Code § 16-6-4(a).
Accordingly, we hold that § 16-6-4(a) is a “crime of violence” for the purposes of
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
This reading is consistent with this court’s analyses of similar offenses.
For example, in Izaguirre-Flores, this court analyzed a North Carolina statute
that prohibited a person sixteen years of age or older (and at least five years
older than the victim) from taking or attempting to take “any immoral,
improper, or indecent liberties” with any child under the age of sixteen for the
purpose of arousing or gratifying sexual desire. 405 F.3d at 271 n.1. This court
held that such conduct constituted “sexual abuse of a minor”:
5
Case: 09-51097 Document: 00511341486 Page: 6 Date Filed: 01/05/2011
No. 09-51097
Gratifying or arousing one’s sexual desires in the actual or
constructive presence of a child is sexual abuse of a minor. Taking
indecent liberties with a child to gratify one’s sexual desire
constitutes ‘sexual abuse of a minor’ because it involves taking
undue or unfair advantage of the minor and causing such minor
psychological—if not physical—harm.
Id. at 275-76 (citations omitted). In reaching that decision, this court relied in
part on Zavala-Sustaita, which refused to limit the term “sexual abuse of a
minor” to only those offenses involving physical contact. 214 F.3d at 605. “Since
psychological harm can occur without physical contact, a distinction based only
on physical contact would miss the essential nature of ‘sexual abuse.’” Id.
Similarly, in Balderas-Rubio, this court determined that Oklahoma’s
statute prohibiting “Indecency or Lewd Acts with a Child Under the Age of
Sixteen” constitutes “sexual abuse of a minor” and is therefore a “crime of
violence” under the Sentencing Guidelines. 499 F.3d at 471-73. In that case,
this court reaffirmed its holding in Izaguirre-Flores “that the phrase ‘sexual
abuse of a minor’ is defined broadly to include not only those crimes that involve
sexual contact with a minor but also those crimes that involve sexual conduct in
the presence of a minor.” Id. at 473 (citing Izaguirre-Flores, 405 F.3d at 275-76).
Moreover, our reading of § 16-6-4(a) comports with the Fourth Circuit’s decision
in Diaz-Ibarra, holding that § 16-6-4 constitutes “‘sexual abuse of a minor’ and
in turn qualifies as a ‘crime of violence’ under [Sentencing] Guideline §
2L1.2(b)(1)(A)(ii).” 522 F.3d at 353.
Because we hold that § 16-6-4(a) constitutes the enumerated offense of
“sexual abuse of a minor,” we need not employ a “categorical approach” to
determine whether the underlying statute of conviction “has as an element the
use, attempted use, or threatened use of physical force against the person of
another” according to its “generic, contemporary definition.” U.S.S.G. § 2L1.2
cmt. n.1(B)(iii); Mungia-Portillo, 484 F.3d at 816; see, e.g., Balderas-Rubio, 499
F.3d at 474 n.5 (“Because we conclude that Balderas-Rubio’s conviction was for
6
Case: 09-51097 Document: 00511341486 Page: 7 Date Filed: 01/05/2011
No. 09-51097
the enumerated offense of sexual abuse of a minor, we do not reach the question
of whether the offense also qualifies as a crime of violence due to having as an
element the use, attempted use, or threatened use of force.”); see also United
States v. Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2009) (refusing to consider
additional assertions concerning whether the underlying statute involves a
threat of force where the court first concluded that the offense falls within the
meaning of arson—an enumerated offense); United States v. Sarmiento-Funes,
374 F.3d 336, 338 (5th Cir. 2004) (“An offense can be a ‘crime of violence’ either
because it has as an element the use of force . . . or because it fits within the
enumerated list . . . .”). Accordingly, Olalde-Hernandez’s argument—that § 16-6-
4(a) is not a “crime of violence” because it does not have as an element the use
of force or violence—is inapposite here.
II.
With respect to his second argument, Olalde-Hernandez maintains that
his sentence violates due process and is illegal because the indictment did not
charge him with having a prior felony conviction and, alternatively, that
8 U.S.C. § 1326(b) is unconstitutional. As Olalde-Hernandez conceded during
sentencing and on appeal, the Supreme Court has specifically foreclosed these
arguments. In Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), the
Supreme Court held that a prior conviction need not be treated as an element
of the offense for Sixth Amendment purposes. Olalde-Hernandez argues that the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has
cast some doubt on its holding in Almendarez-Torres. Nevertheless, since
Apprendi, the Supreme Court has reaffirmed its ruling in Almendarez-Torres.
See James v. United States, 550 U.S. 192, 214 n.8 (2007) (“[W]e have held that
prior convictions need not be treated as an element of the offense for Sixth
Amendment purposes.” (citing Almendarez-Torres, 523 U.S. at 224)). Moreover,
binding precedent in this circuit forecloses his arguments. See United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007) (“Because the Supreme
7
Case: 09-51097 Document: 00511341486 Page: 8 Date Filed: 01/05/2011
No. 09-51097
Court treats Almendarez-Torres as binding precedent, [the defendant’s]
argument is fully foreclosed from further debate.”).
III.
For the foregoing reasons, we conclude that Olalde-Hernandez’s prior
conviction is a “crime of violence” for purposes of the sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Olalde-Hernandez’s other arguments are
foreclosed by Almendarez-Torres. AFFIRMED.
8