United States v. Willy Duron-Rosales , 584 F. App'x 218 ( 2014 )

Case: 13-41093 Document: 00512838691 Page: 1 Date Filed: 11/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41093
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 17, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
WILLY JAVIER DURON-ROSALES, also known as Jose Noel Mercado, also
known as Javier Duron-Rosales,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-748-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Willy Javier Duron-Rosales (Duron) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. He argues that the district court erred by applying
a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(a)(ii) for his being
removed following a conviction for a crime of violence based upon his prior
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41093
Louisiana conviction for indecent behavior with a juvenile in violation of LA.
REV. STAT. § 14:81. We review de novo whether a prior conviction qualifies as
a crime of violence within the meaning of the Guidelines. United States v.
Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005).
To determine whether a defendant’s prior conviction is a crime of
violence under the Guidelines, we use the categorical approach in Taylor v.
United States, 495 U.S. 575 (1990). United States v. Rodriguez, 711 F.3d 541,
549 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). Under this
approach, we analyze the elements of the statute of conviction, not the
defendant’s specific conduct. Id. If a statute has disjunctive subsections, we
may apply a modified categorical approach to ascertain under which statutory
subsection the defendant was convicted. United States v. Miranda-Ortegon,
670 F.3d 661, 663 (5th Cir. 2012). Under that approach, we may review “the
statutory definition, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
Duron asserts that his prior conviction for indecent behavior with a
juvenile in violation of LA. REV. STAT. § 14:81 cannot be narrowed to any
particular subsection of LA. REV. STAT. § 14:81 because the court minutes
evidencing his plea of no contest do not specifically indicate that he pleaded no
contest to the information entered into the record or some other charging
document. Nevertheless, he maintains that even assuming that the statute of
conviction can be narrowed to LA. REV. STAT. § 14:81(A)(1) based upon the
charging information, the application of the enhancement was nevertheless
erroneous.
The information charging Duron with the offense charged Duron with
“committing a lewd and lascivious act upon a juvenile or in the presence of” a
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No. 13-41093
child “under the age of 17 . . . with the intent of arousing or gratifying the
sexual desires of either person.” Thus, the charging information shows that
Duron was charged with violating LA. REV. STAT. § 14:81(A)(1), not the
alternative statutory subsection LA. REV. STAT. § 14:81(A)(2), which deals with
communications. See LA. REV. STAT. § 14:81. The court minutes from Duron’s
guilty plea show that Duron pleaded no contest to indecent behavior with a
juvenile, but did not specify any particular charging instrument to which
Duron pleaded no contest. Despite the lack of particularity in the minutes of
Duron’s guilty plea, we may nevertheless rely upon the charging information
to determine that Duron pleaded guilty to violating LA. REV. STAT.
§ 14:81(A)(1). See United States v. Castillo-Morales, 507 F.3d 873, 875-77 (5th
Cir. 2007).
Duron asserts that his prior conviction was not for a crime of violence
because LA. REV. STAT. § 14:81(A)(1) is too broad to be the enumerated offense
of sexual abuse of a minor. He argues that LA. REV. STAT. § 14:81(A)(1) is too
broad because it allows for a victim under the age of 17 and requires only a
two-year age differential between the victim and the offender instead of
requiring a victim under the age of 16 and a four-year age differential. As
Duron concedes, these arguments are foreclosed. See Rodriguez, 711 F.3d at
560, 562 n.28.
According to Duron, LA. REV. STAT. § 14:81(A)(1) is also too broad to
constitute sexual abuse of a minor because it encompasses actions that do not
constitute “abuse” as contemplated by the meaning of sexual abuse of a minor.
He maintains that this is because LA. REV. STAT. § 14:81(A)(1) covers actions
such as consensual petting between teenagers close in age that does not
constitute abuse under any reasonable definition of abuse.
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No. 13-41093
A statute involves a minor in this context so long as it requires that the
victim be under 18 years of age. Rodriguez, 711 F.3d at 560. An act is “sexual”
if it has “sexual arousal or gratification as its purpose.” Izaguirre-Flores, 405
F.3d at 275. Conduct is “abusive” if it “involves taking undue or unfair
advantage of the minor and causing such minor psychological—if not
physical—harm.” Id. at 275-76.
LA. REV. STAT. § 14:81(A)(1) falls within the generic meaning of sexual
abuse of a minor because it requires the victim to be under the age of 17,
therefore meeting the requirement of a minor; because it requires lewd and
lascivious conduct with the intention of arousing or gratifying sexual desires,
therefore meeting the sexual requirement; and because it requires the sexual
act to be done in the minor’s presence, therefore meeting the abusive
requirement. See Rodriguez, 711 F.3d at 560; United States v. Romero-Rosales,
690 F.3d 409, 411-13 (5th Cir. 2012); Izaguirre-Flores, 405 F.3d at 275-76.
Furthermore, if we were to hold that LA. REV. STAT. § 14:81(A)(1) does not fall
within the generic, contemporary definition of sexual abuse of a minor because,
as Duron argues, it encompasses consensual sexual conduct between teenagers
with as small an age differential as two years and one day, we would be
requiring that there be a sufficiently large age differential requirement for a
state statute to constitute sexual abuse of a minor. As noted above, this court
has already rejected such an age differential requirement. See Rodriguez, 711
F.3d at 562 n.28.
AFFIRMED.
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