United States v. Alfredo Chacon , 742 F.3d 219 ( 2014 )

Case: 12-41301 Document: 00512525332 Page: 1 Date Filed: 02/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-41301 February 6, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee,
v.
ALFREDO CHACON,
Defendant – Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
HAROLD R. DeMOSS, Circuit Judge:
Alfredo Chacon (“Chacon”) was convicted of illegal reentry and sentenced
to 46 months’ imprisonment. On appeal he challenges the 16-level
enhancement he received which was based on the district court’s
determination that he had committed a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Specifically, he argues that the enhancement was
improper because he was convicted of an “attempt” offense and because the
district court was not allowed to rely on the Application for Statement of
Charges.
“This court reviews de novo the district court’s guidelines interpretations
and reviews for clear error the district court’s findings of fact.” United States
v. Le, 512 F.3d 128, 134 (5th Cir. 2007). We “may affirm the district court’s
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No. 12-41301
judgment on any basis supported by the record.” Id. (internal quotation marks
and citation omitted).
Chacon acknowledges that he was convicted under § 3-307(a)(3) of
Maryland’s criminal code. 1 We now consider whether that conviction is a
crime of violence.
A crime of violence is defined by the guidelines:
“Crime of violence” means any of the following offenses under
federal, state, or local law: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including 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),
statutory rape, sexual abuse of a minor, robbery, arson,
1 Section 3-307 provides in relevant part:
(a) A person may not:
....
(3) engage in sexual contact with another if the victim is under the age
of 14 years, and the person performing the sexual contact is at least 4
years older than the victim;
....
MD. CODE ANN., CRIM. LAW § 3-307.
At the time of Chacon’s offense, “sexual contact” was defined to mean:
(f)(1) “Sexual contact”, as used in §§ 3-307 and 3-308 of this subtitle, means an
intentional touching of the victim’s or actor’s genital, anal, or other intimate
area for sexual arousal or gratification, or for the abuse of either party.
(2) “Sexual contact” includes an act:
(i) in which a part of an individual’s body, except the penis, mouth, or
tongue, penetrates, however slightly, into another individual’s genital
opening or anus; and
(ii) that can reasonably be construed to be for sexual arousal or
gratification, or for the abuse of either party.
(3) “Sexual contact” does not include:
(i) a common expression of familial or friendly affection; or
(ii) an act for an accepted medical purpose.
MD. CODE ANN., CRIM. LAW § 3-301 (2002) (current version at § 3-301).
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extortion, extortionate extension of credit, burglary of a dwelling,
or any other offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical
force against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). After reviewing § 3-
307(a)(3) we are satisfied that a violation of that section constitutes sexual
abuse of a minor under the plain-meaning approach. See United States v.
Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512
(2013).
Furthermore, a crime of violence includes an attempt to commit a crime
of violence. U.S.S.G. § 2L1.2 cmt. n.5. We note that Chacon has not argued
that an “attempt” under Maryland law is different from an “attempt” under
the guidelines. See United States v. Sanchez, 667 F.3d 555, 560-66 (5th Cir.
2012).
Because a conviction under § 3-307(a)(3) is a crime of violence, we do not
reach the issue of whether a sentencing court may consider an Application for
Statement of Charges from Maryland.
Therefore, we AFFIRM the judgment of the district court.
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