United States v. Eusebio Varible-Gaspar , 628 F. App'x 333 ( 2016 )

Case: 15-40605 Document: 00513344131 Page: 1 Date Filed: 01/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40605 FILED
Summary Calendar January 15, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EUSEBIO VARIBLE-GASPAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-866
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
Eusebio Varible-Gaspar appeals the 57-month sentence imposed in
connection with his conviction for illegal reentry after deportation. Varible-
Gaspar argues that the district court erred in applying the 16-level
enhancement for a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
He contends that his Wisconsin conviction for first degree sexual assault of a
child does not qualify as a crime of violence or as an aggravated felony under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40605
8 U.S.C. § 1326(b)(2) because the offense does not fall within the generic,
contemporary meaning of sexual abuse of a minor. Varible-Gaspar asserts that
an individual may be guilty of the Wisconsin offense if the offender had sexual
contact or sexual intercourse with a corpse. For the first time on appeal,
Varible-Gaspar argues that the conviction does not qualify as a forcible sex
offense because a corpse cannot be forced or coerced into sex. Further, Varible-
Gaspar argues that, despite the court’s statements that it would impose the
same sentence, the error is not harmless.
We review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
However, because Varible-Gaspar did not challenge his offense as qualifying
as a forcible sex offense, we review that issue for plain error. See United States
v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995).
Section 2L1.2 provides that the offense level for unlawfully reentering
the United States shall be increased by 16 levels if the defendant has a prior
conviction for a “crime of violence.” § 2L1.2(b)(1)(A)(ii). Undisputedly, Varible-
Gaspar was convicted of first degree sexual assault of a child, in violation of
WIS. STAT. ANN. § 948.02(1), and was sentenced to 18 months of imprisonment
and 13 years of extended supervision. Under that subsection of the Wisconsin
statute, a person is guilty of first degree sexual assault of a child if the person
has sexual contact or sexual intercourse with a person who has not attained
the age of 13 years. WIS. STAT. ANN. § 948.02(1). It is also undisputed that an
individual may be convicted under this statute regardless of whether the
victim was living or dead at the time of sexual contact or sexual intercourse.
WIS. STAT. ANN. §948.02(5). The sole issue on appeal concerns whether sexual
abuse of a minor and forcible sex offenses may be committed upon a corpse.
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No. 15-40605
Our caselaw does not specify whether the minor victim of sexual abuse
must be living at the time of the sexual contact in order for the offense to meet
the definition of sexual abuse of a minor. However, the commentary to section
2L1.2 states that a crime of violence includes forcible sex offenses even in cases
“where consent to the conduct is not given or is not legally valid, such as where
consent to the conduct is involuntary, incompetent, or coerced.” § 2L1.2,
comment. (n.1(B)(iii)). Though Varible-Gaspar asserts that a corpse has no
will, the argument also allows for the logical conclusion that a corpse cannot
legally consent. Thus, Varible-Gaspar’s challenge to the classification of the
conviction as a forcible sex offense is at least subject to reasonable debate, and
as such, any alleged error in applying the enhancement on this basis would not
be clear or obvious error. See United States v. Ellis, 564 F.3d 370, 377-78 (5th
Cir. 2009).
Moreover, even if the district court erred, the error is not reversible
under the harmless-error standard. The district court imposed an alternative
non-guidelines sentence of 57 months. In imposing the alternative sentence,
the court made extensive statements indicating that it would impose the same
sentence if the enhancement did not apply and would impose the sentence
because of the factors of 18 U.S.C. § 3553(a). The court particularly focused on
the potential deterrent effect of the 57-month sentence. Because the district
court’s statements indicate that it would have imposed the same sentence
without the alleged error for the same reasons, any error in imposing the 16-
level enhancement is harmless. See United States v. Ibarra-Luna, 628 F.3d
712, 714, 716-19 (5th Cir. 2010).
The judgment of the district court is AFFIRMED.
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