United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 18, 2006
September 14, 2006
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________
No. 05-50994
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ALVARADO-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:
Jose Luis Alvarado-Hernandez pleaded guilty to reentering
the United States illegally after deportation in violation of
8 U.S.C. § 1326(b). Alvarado-Hernandez now appeals his sentence,
arguing that the district court erred in enhancing his sentence
because his prior sexual assault conviction did not constitute a
crime of violence. Because his prior conviction meets a common-
sense definition of crime of violence, we AFFIRM.
I. Background
Alvarado-Hernandez pleaded guilty to reentering the
United States illegally after deportation. At his sentencing, the
district court rejected Alvarado-Hernandez’s argument that a prior
Texas conviction for consensual sex with a person less than
seventeen-years-old under TEX. PENAL CODE § 22.011(a)(2) was not a
crime of violence within the meaning of U.S.S.G. § 2L1.2.
Consequently, the district court increased Alvarado-Hernandez’s
base-offense level by sixteen levels and sentenced him to forty-six
to fifty-seven months imprisonment. He now appeals.
II. Discussion
The Sentencing Guidelines provide for a sixteen-level
upward adjustment for an illegal-entry defendant with a prior
conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii).
An offense qualifies as a crime of violence if it includes an
element of force or constitutes an enumerated offense. Id. cmt.
(n.1(B)(iii)). Included among the enumerated offenses are the
crimes of “statutory rape” and “sexual abuse of a minor.” Id.
This court uses a “common sense approach” to determine if
the defendant’s offense qualifies as an enumerated offense in the
Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409, 412
(5th Cir. 2006) (“common-sense approach” requires a determination
of the generic and contemporary meaning); see also United States v.
2
Izaguirre-Flores, 405 F.3d 270, 274-75 (5th Cir. 2005). We review
the district court’s interpretation de novo. Id. at 272.
The Texas statute at issue meets a common sense
definition of “statutory rape.” This statute punishes consensual
sexual intercourse with a child, defined as a person younger than
the age of seventeen. TEX. PENAL CODE §§ 22.011(a)(2), (c)(1).
Alvarado-Hernandez’s prior conviction was based on an indictment
that charged him with having consensual sexual intercourse with a
fourteen-year-old victim, sufficient to meet a common-sense as
well as a generic, contemporary definition of statutory rape.1 See
United States v. Lopez-Garcia, 163 F.App’x 306, 307-08 (5th Cir.
2006) (unpublished).
This case is distinguishable from United States v.
Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006), reh’g en banc
denied, 2006 WL 2235104 (5th Cir. Aug. 3, 2006), in which we held
that because TEX. PENAL CODE § 22.011(a)(1) defines sexual assault to
include those offenses where “assent is rendered a legal nullity by
the statute,” a conviction under subsection (a)(1) is not a
forcible sex offense and thus not a crime of violence. Luciano-
Rodriguez involved a prior conviction under subsection (a)(1) of
1
Albeit under a different guideline provision, we have previously
characterized an offense under TEX. PENAL CODE § 22.011(a)(2) as statutory rape.
See United States v. Houston, 364 F.3d 243, 246-48 (5th Cir. 2004) (declining
crime of violence enhancement because guideline provision did not have the use
of force as an element and did not include statutory rape as an enumerated
offense) . Unlike the guideline provision in Houston, the provision at issue in
this case, § 2L1.2, specifically enumerates statutory rape as a crime of
violence.
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the statute, which prohibits intentional or knowing sexual
penetration “without the consent” of the other person. By
contrast, this case involves a prior conviction under subsection
(a)(2), which prohibits intentional or knowing sexual penetration
regardless of consent. Luciano-Rodriguez controls only those cases
in which the defendant’s prior conviction was under subsection
(a)(1) because the victim’s consent is relevant only under that
subsection. Moreover, the holding in Luciano-Rodriguez went only
to the issue whether an offense under subsection (a)(1) fit within
the enumerated offense of “forcible sex offenses.” The issue here,
however, is whether Alvarado-Hernandez’s prior offense under
subsection (a)(2) constitutes the enumerated offense of “statutory
rape.”
Alvarado-Hernandez’s prior conviction under TEX. PENAL CODE
§§ 22.011(a)(2) was for a crime of violence. The defendant’s
attempt to draw distinctions between the Texas statute and the
Model Penal Code is without merit.2
2
We also reject Alvarado-Hernandez’s challenge to the
constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000). Alvarado-Hernandez’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S. Ct.
1219, 1226 (1998). Although Alvarado-Hernandez contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding. See United States
v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005), cert. denied, 126 S. Ct. 298
(2005). Alvarado-Hernandez properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
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Therefore, we AFFIRM the sentence imposed by the district
court.
AFFIRMED.
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