United States v. Karen Portillo-Romero

Case: 13-50775 Document: 00512941097 Page: 1 Date Filed: 02/19/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 13-50775
Fifth Circuit

FILED
Summary Calendar February 19, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

KAREN FIDELINA PORTILLO-ROMERO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1747

Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Karen Fidelina Portillo-Romero pleaded guilty to a single count of illegal
reentry after removal. She received a 16-level sentencing enhancement
because she previously had been removed following a conviction for a crime of
violence, which was identified as a Maryland conviction for “Sex Offense, Third
Degree.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii); MD. CODE ANN., CRIMINAL LAW § 3-

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-50775

307 (2010). The district court imposed a within-guidelines range sentence of
52 months of imprisonment and three years of supervised release.
On appeal, Portillo-Romero argues that the record at sentencing was
insufficient to show which subsection of the Maryland statute she was
convicted under and, therefore, the district court erred by relying on the
characterization of this prior offense as a crime of violence. She also briefly
argues that the Maryland offense does not qualify as a crime of violence.
In its brief, the Government argues that Portillo-Romero waived any
error regarding the 16-level enhancement. We disagree. See United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). As she concedes, Portillo-
Romero forfeited this issue and plain error review applies. To demonstrate
plain error, Portillo-Romero must show a forfeited error that is clear or obvious,
rather than subject to reasonable dispute, and that affects her substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
Portillo-Romero pleaded guilty to Count Two of her indictment, which
alleged that she violated Maryland “Section 3-307” by engaging in “vaginal
intercourse” with the victim. Based on the indictment, it would not be plain
error to conclude that Portillo-Romero was convicted under either § 3-307(a)(3)
or, more likely, § 3-307(a)(5), notwithstanding her contention that the dates
alleged in the indictment render it difficult to determine the subsection.
We have held that a conviction under § 3-307(a)(3) qualifies as a crime
of violence because “a violation of that section constitutes sexual abuse of a
minor under the plain-meaning approach.” United States v. Chacon, 742 F.3d
219, 220 (5th Cir. 2014). We have not specifically addressed a conviction under

2
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No. 13-50775

§ 3-307(a)(5). However, in United States v. Rodriguez, 711 F.3d 541, 561 (5th
Cir.) (en banc), cert. denied 134 S. Ct. 512 (2013), we held that the generic
definition of the enumerated offense of “statutory rape” was sexual intercourse
with a person who is below the age of consent, which is the age of majority as
defined by statute. The age of majority in Maryland is 18. MD. CODE ANN.,
GEN. PROVISIONS, § 1-401(a)(1). Thus, a determination that § 3-307(a)(5)
comports with the generic, contemporary meaning of the enumerated offense
of “statutory rape” and qualifies as a crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii) likely would not constitute error at all; at the least, it is not
clear or obvious error. See Puckett, 556 U.S. at 135.
For the reasons discussed above, we conclude that the district court did
not plainly err in concluding that Portillo-Romero previously was deported
following a felony conviction for a crime of violence and imposing a 16-level
enhancement. Therefore, her sentence is AFFIRMED.