Case: 16-10367 Document: 00514293328 Page: 1 Date Filed: 01/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10367
Fifth Circuit
FILED
January 3, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LARRY WAYNE STINNETT,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-257-1
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Larry Wayne Stinnett was convicted of one count of possession of child
pornography. The district court concluded that Stinnett had a prior state
offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor.” 18 U.S.C. § 2252A(b)(2). That finding resulted in
a statutory minimum sentence of 10 years and a maximum of 20 years. Id.
Absent the enhancement that resulted from that prior offense, Stinnett would
have faced at most ten years in prison. Id. Using the enhanced sentencing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10367
range, the district court sentenced Stinnett to 160 months in prison and 10
years of supervised release. Stinnett argues that the district court erred by
concluding that his prior Texas conviction for indecency with a child under
Texas Penal Code § 21.11 qualified for the enhancement. He concedes that
this claim is reviewed for plain error only and is likely unavailing under our
prior jurisprudence. Stinnett’s argument is, as he concedes, reviewed for plain
error due to his failure to raise it in the district court.
To establish plain error, Stinnett must show that the district court
committed a clear or obvious error that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). Even if he does so, this
court will correct the error only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id. He has not made this showing.
Under § 2252A(b)(2), one will receive an enhanced sentence if he has a
prior conviction “under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor.” The terms
“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct
involving a minor or ward” as used in § 2252A are not defined by statute, but
rather are generic terms that must be given their ordinary, common meanings.
See United States v. Hubbard, 480 F.3d 341, 348-50 (5th Cir. 2007). As
Stinnett concedes, his § 21.11 conviction qualifies as a § 2252A(b)(2) predicate
offense under the generic definition of sexual abuse of a minor given in our
prior caselaw. See United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th
Cir. 2005); United States v. Cortez-Cortez, 770 F.3d 355, 358 (5th Cir. 2014);
and United States v. Puga-Yanez, 829 F.3d 317, 322-23 (5th Cir. 2016); see also
United States v. Najera-Najera, 519 F.3d 509, 512 (5th Cir. 2008); United
States v. Zavala-Sustaita, 214 F.3d 601, 603-04 (5th Cir. 2000). Additionally,
because § 21.11 considered as a whole is not broader than the generic offense
2
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No. 16-10367
of sexual abuse of a minor, there is no need to use the modified categorical
approach that Mathis v. United States, 136 S. Ct. 2243 (2016), addresses. 1
AFFIRMED.
1 The parties do not raise and therefore we express no opinion on the effect, if
any, of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568–73 (2017), on our prior
holdings. See United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc)
(declining to address issues not raised by the parties).
3