IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 13, 2009
No. 08-40796
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE MARTIN CASTRO-GUEVARRA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and KING and OWEN, Circuit Judges.
EDITH H. JONES, Chief Judge:
Jose Martin Castro-Guevarra (“Castro-Guevarra”) pled guilty to illegal re-
entry in violation of 8 U.S.C. § 1326 (a) and (b) and was sentenced to 46 months
imprisonment to be followed by two years of supervised release. He contends on
appeal that the district court erred, when, applying the crime of violence
guideline, it enhanced his base offense level by 16 levels for a previous conviction
for sexual assault of a child. See U.S.S.G. § 2L1.2(b). Because this argument is
foreclosed by this court’s precedent, we AFFIRM.
No. 08-40796
I. BACKGROUND
Castro-Guevarra was deported in June 2007 after being convicted of
sexual assault of a child in Texas. T EX. P ENAL C ODE § 22.011(a)(2)(A), (c)(1). In
that case, the victim reported that on at least three occasions, Castro-Guevarra
had sexual intercourse with her after her mother had left for work. The victim’s
half-brother witnessed the defendant on top of the victim wearing only
underwear. Castro-Guevarra pled guilty and served five years in prison. The
judgment stated that the victim was 14 years old at the time of the offense.
In May 2008, he was again arrested and pled guilty to attempting illegally
to re-enter the United States by wading the Rio Grande. The pre-sentence
report (“PSR”) recommended a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), classifying the earlier sexual assault conviction as a crime
of violence. As a result of this enhancement and other adjustments, Castro-
Guevarra’s PSR recommended a total offense level of 24 and criminal history
Category III, corresponding to an imprisonment range of 51 to 63 months.
Castro-Guevarra submitted a written objection to the crime of violence
enhancement, arguing that his prior conviction did not contain a “use of force”
element. The court overruled this objection but granted an additional one-level
reduction for acceptance of responsibility. The court recalculated a corrected
range of 46 to 57 months and sentenced Castro-Guevarra, as noted, to 46 months
imprisonment. Castro-Guevarra appeals his sentence.
II. DISCUSSION
This court reviews a district court’s interpretation and application of the
Guidelines de novo. See United States v. Alvarado-Hernandez, 465 F.3d 188, 189
(5th Cir. 2006).
Castro-Guevarra argues that his prior sexual assault conviction does not
qualify for an enhancement under the guidelines as (1) sexual abuse of a minor,
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No. 08-40796
(2) statutory rape, or (3) a residual “use of force” crime of violence.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).1 His arguments are unavailing.
The statute under which Castro-Guevarra was convicted, T EX. P ENAL
C ODE § 22.011(a)(2)(A) and (c)(1), punishes consensual sexual intercourse with
a child, defined as a person younger than the age of 17. Castro-Guevarra
contends that this statute does not reflect the “generic age of consent” that
renders it a statutory rape statute under the Guidelines.2 In United States v.
Alvarado-Hernandez, 465 F.3d 188 at 189 (5th Cir. 2006), however, we held that
the Texas statute “meets a common sense definition of ‘statutory rape.’ ” Castro-
Guevarra’s reliance on United States v. Lopez-Deleon, 513 F.3d 472 (5th Cir.
2008), is mistaken. In Lopez-Deleon, this court referred to the “generic age of
consent” as a requirement for statutory rape offenses, but then concluded more
specifically that a defendant’s prior statutory rape conviction under California
law demonstrated a crime of violence where the charging documents established
that the victim was 14 at the time of the offense.3 Alvarado-Hernandez, to the
contrary, is on point regarding Texas law. Thus, even if we believed that
1
“Crime of violence” means any of the following offenses under
federal, state, or local law: . . . statutory rape, sexual abuse of a
minor . . . or 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).
2
The Government argues that Castro-Guevarra only raised a “use of force” objection
during the sentencing hearing and we should only review his “generic age of consent”
argument for plain error. Because Castro-Guevarra’s argument fails even under the liberal
standard of review, we need not determine whether Castro-Guevarra’s objection was specific
enough to overcome plain error review.
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The abstract of judgment in Castro-Guevarra’s earlier conviction notes that his victim
was also 14 years old at the time he assaulted her. Because an “abstract of judgment is
generated by the [convicting] court’s clerical staff, . . . it is not an ‘explicit factual finding by
the trial judge to which the defendant assented,’ which the court may consider under
Shepard.” United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (quoting
Shepard v. United States, 544 U.S. 13, 15, 125 S. Ct. 1254, 1257 (2005)). We, therefore, may
not rely on any information contained in the abstract of judgment when determining whether
Castro-Guevarra’s state conviction is an enumerated offense for enhancement purposes.
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No. 08-40796
Lopez-Deleon is in tension with Alvarado-Hernandez, one panel of this court may
not overrule another panel’s earlier decision. See United States v. Warden,
291 F.3d 363, 366 (5th Cir. 2002). The district court did not err when it
determined that this appellant’s previous conviction under T EX. P ENAL C ODE
§ 22.011(a)(2)(A), (c)(1) involved statutory rape that falls within the enumerated
§ 2L1.2 cmt. n.1(B)(iii) crime of violence definition.
Castro-Guevarra’s additional arguments are also foreclosed. This court
has held that the crime of sexual assault of a child under T EX. P ENAL C ODE
§ 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.
United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006). We have also
held that the related Texas indecency with a “child” statute, in which a “child”
is, as here, under 17 years old, constitutes sexual abuse of a minor under
U.S.S.G §2L1.2 cmt. n.1(B)(iii). See United States v. Ayala, 542 F.3d 494 (5th
Cir. 2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000);
United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008). These
authorities all sustain the sentence enhancement.
Finally, we have rejected Castro-Guevarra’s contention that the “use of
force” element of U.S.S.G. § 2L1.2 is lacking in T EX. P ENAL C ODE § 22.011(a)(2).
See United States v. Rayo-Valdez, 302 F.3d 314, 320 (5th Cir. 2002) (holding that
sexual abuse of a minor is a crime of violence even if no element of physical force
is proved).
III. CONCLUSION
For the foregoing reasons, the sentence imposed by the district court is
AFFIRMED.
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