United States v. Eleonel Santos , 537 F. App'x 462 ( 2013 )

Case: 12-20680 Document: 00512324124 Page: 1 Date Filed: 07/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2013
No. 12-20680
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ELEONEL MORALES SANTOS, also known as Eleonel Santos-Moralez, also
known as Eleonel Morales Santos, also known as Eleonel Santos Moralez,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-294-1
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Pursuant to his guilty-plea conviction for illegal reentry by a previously
deported alien after an aggravated-felony conviction, Eleonel Morales Santos
received a sentence, inter alia, of 64 months’ imprisonment. He contends the
district court erred in applying a 16-level crime-of-violence enhancement under
Guideline § 2L1.2(b)(1)(A)(ii) based on his 2004 Michigan conviction for criminal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-20680 Document: 00512324124 Page: 2 Date Filed: 07/29/2013
No. 12-20680
sexual conduct in the third degree. According to Santos, and as he asserted in
district court, his Michigan offense should not be considered a crime of violence
because the statute under which he was convicted does not comport with the
“generic, contemporary meaning” of statutory rape or sexual abuse of a minor
due to its lack of an age-differential requirement between defendant and
complainant. E.g., United States v. Rodriguez, 711 F.3d 541, 559 (5th Cir. 2013)
(en banc), (applying “generic, contemporary meaning” test to determine whether
offense qualifies as crime of violence).
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
Morales’ contention is foreclosed by our court’s en-banc decision in
Rodriguez, rendered after briefing was complete for this appeal. Our en-banc
court concluded the generic, contemporary “definitions of ‘sexual abuse of a
minor’ in legal and other well-accepted dictionaries do not include such an age-
differential requirement”. 711 F.3d at 562 n.28.
AFFIRMED.
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