United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 06-41068
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellees,
versus
HERIBERTO JARAMILLO-ESTRADA,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Texas
No. 7:05-CR-00718
Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Defendant Heriberto Jaramillo-Estrada (“Jaramillo”)
appeals his forty-six month sentence for attempted illegal reentry,
arguing that the district court erred by enhancing his offense
level by sixteen levels based on a determination that his prior
Indiana state court conviction for sexual battery constituted a
crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). We affirm.
Jaramillo contends that the Indiana statute criminalizes
both forcible sex offenses and offenses where there is assent-in-
fact, but that assent is rendered a legal nullity due to a mental
*
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opinion should not be published and is not precedent except under the limited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.
disability or deficiency, see IND. CODE § 35-42-4-8, and therefore
cannot form the basis of a crime of violence enhancement.
See United States v. Luciano-Rodriguez, 442 F.3d 320, 321-22 (5th
Cir.), cert. denied, ---U.S.---, 127 S. Ct. 747 (2006). This
court, however, only need consider whether the subsection under
which Jaramillo was convicted, not the statute in its entirety,
constitutes a crime of violence. See United States v.
Izaguirre-Flores, 405 F.3d 270, 273 n.6 (5th Cir.), cert. denied,
546 U.S. 905, 126 S.Ct. 253 (2005). To determine the applicable
subsection, the court can refer “to the terms of the charging
document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judicial
record of this information.” United States v. Fernandez-Cusco,
447 F.3d 382, 386 (5th Cir. 2006)(quoting Shepard v. United States,
544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005)).
At his plea hearing, Jaramillo admitted the facts alleged
in the “Affidavit of Probable Cause.” A review of this affidavit,
which describes repeated molestations and the victim’s fear,
confirms that Jaramillo was convicted under subsection (1) of the
Indiana sexual battery statute, “compell[ing someone] to submit to
the touching by force or the imminent threat of force,” rather than
subsection (2), touching another person who is “so mentally
disabled or deficient that consent to the touching cannot be
given.” IND. CODE ANN. § 35-42-4-8. Because subsection (1)
2
constitutes a “forcible sex offense,” the district court did not
err by enhancing Jaramillo’s base offense level. See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii).
AFFIRMED.
3