United States v. Hector Peralta-Mejia

Case: 13-40627 Document: 00512644598 Page: 1 Date Filed: 05/28/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40627
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 28, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
HECTOR RAMON PERALTA-MEJIA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-2093-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Hector Ramon Peralta-Mejia challenges the 41-month prison sentence
imposed following his guilty-plea conviction for being found in the United
States after a previous deportation, in violation of 8 U.S.C. § 1326 (reentry of
removed aliens). He contends the district court erred in assessing a 16-level
crime-of-violence enhancement, based on his prior conviction under New York
Penal Law § 130.25 (rape in the third degree).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-40627 Document: 00512644598 Page: 2 Date Filed: 05/28/2014
No. 13-40627
The court found all subsections of § 130.25 fit within the generic meaning
of enumerated offenses listed in the definition of “crime of violence” under
Sentencing Guideline § 2L1.2 (unlawfully entering or remaining in the United
States). Peralta contends there was insufficient evidence to determine under
which section he was convicted, and that this court must vacate his sentence
if any subsection of § 130.25 does not qualify as a crime of violence. Along that
line, Peralta asserts § 130.25(2), sexual intercourse with a person under 17,
involves the least culpable conduct, and does not qualify.
Regarding § 130.25(2), this court has held previously, in unpublished
opinions, that the offense constitutes a crime of violence under Guideline
§ 2L1.2(b)(1)(A)(ii). United States v. Guzman-Saldivar, 262 F. App’x 594, 594
(5th Cir. 2008); United States v. Gonzalez-Alonzo, 204 F. App’x 359, 360 (5th
Cir. 2006). In the light of these opinions, it is unavailing for Peralta to
challenge the court’s finding as to subsection two. As Peralta concedes in the
light of our following controlling precedent, it is also unavailing for him to
contend the age of consent is 16 for purposes of the generic, contemporary
meanings of sexual abuse of a minor and statutory rape. United States v.
Rodriguez, 711 F.3d 541, 548, 562 (5th Cir.) (en banc), cert. denied, 134 S. Ct.
512 (2013) (recognizing this court uses age of consent as defined by state
statute). He presents the issue to preserve it for possible further review.
AFFIRMED.
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