United States v. Juan Hernandez-Morales

Case: 09-50503 Document: 00511107546 Page: 1 Date Filed: 05/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 11, 2010
No. 09-50503
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN MANUEL HERNANDEZ-MORALES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-3488-1
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Juan Manuel Hernandez-Morales pleaded guilty to illegal reentry into the
United States following removal. The district court applied a 16-level crime-of-
violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because Hernandez-
Morales had been convicted in Michigan of attempted criminal sexual conduct
in the 3rd degree. The district court sentenced Hernandez-Morales to 41 months
in prison.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50503 Document: 00511107546 Page: 2 Date Filed: 05/11/2010
No. 09-50503
Hernandez-Morales argues that the district court erred in imposing a 16-
level crime-of-violence enhancement because a forcible sex offense in the 3rd
degree under Michigan law (M ICH. C OMP. L AWS A NN. § 750.520d(1)(b)) is not a
crime of violence because it can be committed by coercion rather than physical
force. The district court’s characterization of a prior offense as a “crime of
violence” is a question of law that this court reviews de novo. United States v.
Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006).
In United States v. Gomez-Gomez, 547 F.3d 242, 247-49 (5th Cir. 2008) (en
banc), this court looked to the plain, ordinary meaning of “forcible sex offense”
and held that sex offenses committed using constructive force that would cause
a reasonable person to succumb qualify as forcible sex offenses because such
offenses necessarily involve victims who have not given actual or freely given
consent. The conceded statute of conviction, M ICH. C OMP. L AWS A NN.
§ 750.520d(1)(b), requires nothing more or less than that force or coercion be
used to accomplish the sexual penetration to make a person guilty of criminal
sexual conduct in the third degree. This necessarily involves victims who have
not given actual or freely given consent. See Gomez-Gomez, 537 F.3d at 248.
Therefore, Hernandez-Morales’s statute of conviction qualifies as a forcible sex
offense. The district court did not err in applying the 16-level sentencing
enhancement.
Hernandez-Morales asserts that the maximum sentence for his 8 U.S.C.
§ 1326 offense is two years of imprisonment because his indictment did not
allege that he had a prior felony conviction. This court has held that Hernandez-
Morales’s argument is “fully foreclosed from further debate.” United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
AFFIRMED.
2