Case: 13-41239 Document: 00512787449 Page: 1 Date Filed: 09/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-41239 September 30, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SAMUEL FRANCISCO-ANDRES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1107-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges
PER CURIAM: *
Samuel Francisco-Andres (Francisco) appeals the 46-month sentence
imposed by the district court following his guilty plea conviction under 8 U.S.C.
§ 1326 for being unlawfully present in the United States following deportation.
He argues that the district court misapplied the Sentencing Guidelines when
it determined that his prior conviction for lewd acts with a child under the age
of 14 under CAL. PENAL CODE ANN. § 288(a) was a crime of violence within the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-41239 Document: 00512787449 Page: 2 Date Filed: 09/30/2014
No. 13-41239
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). As Francisco concedes, because he
raised no objection in the district court on the basis of the legal arguments he
now presents on appeal, our review is for plain error only. See United States
v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To demonstrate plain
error, Francisco must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of the
judicial proceedings. Id.
As Francisco acknowledges, in United States v. Rodriguez, 711 F.3d 541,
562 n.28 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013), we rejected the
argument that any minimum age differential is required for an offense to
qualify as sexual abuse of a minor. He nevertheless preserves for possible
further review his claim that, whereas § 288(a) requires no age differential
between the victim and the perpetrator, the generic meaning of sexual abuse
of a minor requires at least a four-year age differential.
The primary contention raised by Francisco, which he does not concede
is foreclosed, is that § 288(a) has been interpreted to punish otherwise innocent
or innocuous acts and non-abusive consensual conduct. Consistent with the
plain-meaning approach we adopted in Rodriguez, 711 F.3d at 552, Francisco
has not shown clear or obvious error in the district court’s determination that
his conviction was for the enumerated offense of sexual abuse of a minor and,
accordingly, a crime of violence under § 2L1.2(b)(1)(A)(ii). See Puckett, 556 U.S.
at 135; § 2L1.2, comment. (n. 1(b)(iii)); United States v. Izaguirre-Flores, 405
F.3d 270, 274-75 (5th Cir. 2005).
The judgment of the district court is AFFIRMED.
2