United States v. Tomas Puga-Yanez , 829 F.3d 317 ( 2016 )


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  •      Case: 15-41008   Document: 00513585567        Page: 1   Date Filed: 07/11/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-41008                            FILED
    July 11, 2016
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    TOMAS PUGA-YANEZ, also known as Thomas Puga,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, JOLLY, and ELROD, Circuit Judges.
    PER CURIAM:
    Tomas Puga-Yanez (“Puga-Yanez”) appeals his sentence. Puga-Yanez
    contends that the district court committed reversible error by applying a
    sixteen-level sentencing enhancement based on his prior conviction of child
    molestation. For the reasons that follow, we AFFIRM Puga-Yanez’s sentence.
    I.
    Puga-Yanez, without a plea agreement, pled guilty to being an alien who
    knowingly and unlawfully entered and was found in the United States
    following deportation, in violation of 8 U.S.C. § 1326(a) and (b).
    His presentence report (“PSR”) recommended, in part, a sixteen-level
    sentencing enhancement under § 2L1.2(b)(1)(A)(ii) for having been previously
    Case: 15-41008       Document: 00513585567         Page: 2     Date Filed: 07/11/2016
    No. 15-41008
    deported after a conviction for a “crime of violence,” based on a 2005 Georgia
    felony conviction for child molestation. Including the enhancement, Puga-
    Yanez’s total calculated offense level was 21 (with criminal history category of
    III), which resulted in an advisory guideline range of 46 to 57 months. 1
    Puga-Yanez filed a written objection to the PSR, arguing that the district
    court erred by determining that his prior conviction qualified as an
    enumerated offense (“sexual abuse of a minor”) under § 2L1.2(b)(1)(A)(ii),
    because the Georgia statute under which he was convicted, Ga. Code Ann. § 16-
    6-4(a), was “broader than the contemporary[,] generic meaning of sexual abuse
    of a minor.” Consequently, Puga-Yanez argued that § 16-6-4(a) “proscribe[d]
    immoral or indecent acts committed in front of a minor [and] include[d] many
    things that fall outside the umbrella of sexual abuse of a minor.” Thus, Puga-
    Yanez argued, the district court erred in applying the sixteen-level “crime of
    violence” enhancement to his sentence. 2 The district court overruled Puga-
    Yanez’s objections and sentenced him to 48 months of imprisonment.
    Puga-Yanez appealed his sentence to this Court, arguing that the district
    court erred by applying the “crime of violence” enhancement—based on its
    determination that Puga-Yanez’s 2005 conviction for child molestation under
    § 16-6-4(a) constituted the “sexual abuse of a minor” under § 2L1.2.
    II.
    “Where a defendant preserves error by objecting at sentencing, we
    review the sentencing court’s factual findings for clear error and its
    1 Puga-Yanez was sentenced under the 2014 United States Sentencing Guidelines.
    2 At his sentencing hearing, Puga-Yanez also argued that our prior opinion in United
    States v. Olalde-Hernandez, 
    630 F.3d 372
    (5th Cir. 2011), in which we interpreted § 16-6-4(a),
    was not dispositive because the defendant in that case made no attempt to support his
    contention that the statute did not qualify as “sexual abuse of a minor.” Puga-Yanez argued,
    therefore, that the panel in Olalde-Hernandez was not squarely presented with the issues he
    raised.
    2
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    interpretation or application of the Sentencing Guidelines de novo.” United
    States v. Gomez-Alvarez, 
    781 F.3d 787
    , 791 (5th Cir. 2015). Furthermore,
    under this standard, we “review de novo whether a prior conviction qualifies
    as a crime of violence within the meaning of the Guidelines.” United States v.
    Rodriguez, 
    711 F.3d 541
    , 548 (5th Cir. 2013) (en banc).
    III.
    As we have said, Puga-Yanez argues that the district court erred by
    enhancing his sentence because the Georgia child molestation statute
    proscribes conduct that is broader than conduct proscribed by “sexual abuse of
    a minor” under the Guidelines.             Accordingly, Puga-Yanez contends that
    because the Georgia statute is broader, categorically, than § 2L1.2(b)(1)(A)(ii),
    enhancement under § 2L1.2(b)(1)(A)(ii) should not apply to his sentence. 3
    We have addressed the identical Georgia statute in United States v.
    Olalde-Hernandez, 
    630 F.3d 372
    (5th Cir. 2011), and held that it reflects the
    generic crime of “sexual abuse of a minor” and thus constitutes a crime of
    violence under the Guidelines. Puga-Yanez, however, offers two principal
    arguments to support his claim. First, Puga-Yanez contends that because he
    presents more detailed arguments than those presented to the panel in Olalde-
    Hernandez, Olalde-Hernandez is not binding precedent for this appeal. 4
    Second, Puga-Yanez contends that Olalde-Hernandez has been superseded by
    3  As a preliminary matter, under our case law, Puga-Yanez, convicted of illegal
    reentry, would be subject to a sixteen-level sentencing enhancement under the Guidelines if
    convicted of a “crime of violence” prior to his original deportation. See 
    Rodriguez, 711 F.3d at 548
    (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)).
    4 See Thomas v. Texas Dep’t of Criminal Justice, 
    297 F.3d 361
    , 370 n.11 (5th Cir. 2002)
    (“Where an opinion fails to address a question squarely, we will not treat it as binding
    precedent.”) (citation omitted).
    3
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    No. 15-41008
    intervening case law from the appellate courts of Georgia and should be
    revisited, citing Clemens v. State, 
    733 S.E.2d 67
    (Ga. Ct. App. 2012). 5
    A.
    Turning to his first argument, Puga-Yanez contends that this appeal is
    not controlled by our precedent in Olalde-Hernandez because the appellant in
    that case did not specifically argue that the conduct proscribed by § 16-6-4(a)
    failed to satisfy the three elements we have required for the “sexual abuse of a
    minor” under § 2L1.2(b)(1)(A)(ii).                We take this point as true; but,
    notwithstanding this argument, in Olalde-Hernandez we nevertheless
    analyzed the conduct at issue and determined that it satisfied, entirely, the
    requirements of § 2L1.2(b)(1)(A)(ii). See 
    Olalde-Hernandez, 630 F.3d at 373
    –
    75 and n.1. In short, we addressed the exact argument that Puga-Yanez makes
    before us, and denied the relief he seeks in this appeal.
    Consequently, Puga-Yanez cannot avoid the precedential effect of
    Olalde-Hernandez by presenting a more detailed argument than the
    unsuccessful one presented in an otherwise identical challenge.
    B.
    Turning to his second argument, Puga-Yanez contends that Olalde-
    Hernandez should be revisited. He argues that the scope of Ga. Code Ann.
    § 16-6-4(a) has evolved since Olalde-Hernandez, and the statute now has been
    5 Puga-Yanez also argues that Olalde-Hernandez was wrongly decided at the time the
    opinion was issued, based on an erroneous interpretation of Georgia case law. Under our
    precedent, however, this argument is meritless. See, e.g., Robinson v. J & K Admin. Mgmt.
    Servs., Inc., 
    817 F.3d 193
    , 197 (5th Cir. 2016) (“It is a well-settled Fifth Circuit rule of
    orderliness that one panel of our court may not overturn another panel’s decision, absent an
    intervening change in the law, such as by a statutory amendment, or the Supreme Court, or
    our en banc court. Indeed, even if a panel’s interpretation of the law appears flawed, the rule
    of orderliness prevents a subsequent panel from declaring it void.”) (citation omitted);
    Lozovyy v. Kurtz, 
    813 F.3d 576
    , 580 (5th Cir. 2015) (“‘To the extent that a prior panel of this
    Circuit has ruled on [a state law] issue and has not been superceded [sic] by either [state]
    case law or a change in statutory authority,’ we are also ‘bound by the prior decisions of this
    Circuit as to the meaning of [state] law.’”) (citation omitted).
    4
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    No. 15-41008
    interpreted by Georgia courts to have a broader meaning than the generic
    understanding of the crime reflected in the Guidelines.
    To determine the merits of this argument, we first turn to our definition
    of the “sexual abuse of a minor” under the Guidelines.                    As we noted in
    Rodriguez, the meaning of “sexual abuse of a minor” is unclear from the plain
    language of § 2L1.2; furthermore, it is also not defined at common law.
    
    Rodriguez, 711 F.3d at 558
    –59. Thus, we derive the meaning of “sexual abuse
    of a minor” from its “generic, contemporary meaning,” i.e., “the common usage
    of [that term] as stated in legal and other well-accepted dictionaries.” 
    Id. at 559.
    And, when determining whether conduct criminalized under a state
    statute qualifies as the “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii), we
    focus on three components: (1) whether the conduct involved a minor victim;
    (2) whether the conduct was “sexual” in nature; and (3) whether the conduct
    was “abusive.” See, e.g., United States v. Najera-Najera, 
    519 F.3d 509
    , 511 (5th
    Cir. 2008) (citation omitted). 6
    Then, we “look to the elements of the state statute of conviction and
    evaluate whether those elements comport with the generic meaning of the
    enumerated offense category.”           
    Rodriguez, 711 F.3d at 552
    –53.             Here, for
    example, we juxtapose the elements of Ga. Code Ann. § 16-6-4(a) and the
    generic meaning of “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii). 7 If we
    6  For the purposes of this appeal Puga-Yanez challenges only the third prong—
    whether the conduct was abusive. Puga-Yanez, however, also argues, parenthetically, that
    because § 16-6-4(a) applies only to victims under age 16, and thus has no age differential
    requirement, it is categorically broader than the generic definition of “sexual abuse of a
    minor,” which requires the victim to be under the age of 16 and that there be at least a four-
    year age differential between the perpetrator and the victim. Puga-Yanez concedes, however,
    that this argument is foreclosed by our en banc court’s opinion in 
    Rodriguez, 711 F.3d at 562
    n.28.
    7 We interpret § 2L1.2 as a matter of federal case law, and then, of course, look to the
    decisions of Georgia courts that have interpreted § 16-6-4(a). See United States v. Martinez-
    Flores, 
    720 F.3d 293
    , 297 (5th Cir. 2013) (“Although it is a question of federal law whether
    5
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    find that § 16-6-4(a) “encompasses prohibited behavior that is not within the
    plain, ordinary meaning of the enumerated offense, [then] the conviction is not
    a   crime    of   violence    as    matter     of   law,”   and    enhancement        under
    § 2L1.2(b)(1)(A)(ii) would be precluded. United States v. Hernandez-Rodriguez,
    
    788 F.3d 193
    , 196 (5th Cir. 2015) (citation omitted).
    As noted above, we recently engaged in this analysis in Olalde-
    Hernandez and found that § 16-6-4(a) and the generic crime of “sexual abuse
    of a minor” under § 2L1.2(b)(1)(A)(ii) are compatible. We held that a conviction
    under § 16-6-4(a) qualifies as a crime of violence under the Guidelines, because
    the conduct prohibited by § 16-6-4(a) “involves taking undue or unfair
    advantage of the minor.” 
    Olalde-Hernandez, 630 F.3d at 375
    (quoting United
    States v. Izaguirre-Flores, 
    405 F.3d 270
    , 275–76 (5th Cir. 2005) (holding that
    “[t]aking indecent liberties with a child to gratify one’s sexual desire
    constitutes ‘sexual abuse of a minor’ because it involves taking undue or unfair
    advantage of the minor.”) (emphasis added) (citations omitted).
    Thus, for Puga-Yanez to prevail, he must identify post-Olalde-
    Hernandez case law demonstrating that Georgia courts have extended the
    reach of § 16-6-4(a) to criminalize conduct that is not proscribed under the
    generic meaning of “sexual abuse of a minor” under § 2L1.2(b)(1)(A)(ii). 8
    To meet his burden, Puga-Yanez points to Clemens v. State, 
    733 S.E.2d 67
    (Ga. Ct. App. 2012). Puga-Yanez argues that Clemens holds that § 16-6-4(a)
    is violated even in circumstances in which the minor is “completely unaware
    of the sexually motivated act, the actor’s sexual purpose, and the actor’s
    an offense constitutes a crime of violence under § 2L1.2, ‘we look to state law to determine
    [the offense’s] nature and whether its violation is a crime of violence under federal law.’”).
    8 See, e.g., 
    Hernandez-Rodriguez, 788 F.3d at 196
    (stating that, if § 16-6-4(a)
    “encompasses prohibited behavior that is not within the plain, ordinary meaning of [“sexual
    abuse of a minor, then] the conviction is not a crime of violence as matter of law”) (citation
    omitted).
    6
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    presence.”     Puga-Yanez argues that under Clemens, § 16-6-4(a) reaches
    conduct that need not result in psychological or physical harm to a minor; that
    is, it extends beyond the generic, contemporary meaning of the “sexual abuse
    of a minor” under § 2L1.2(b)(1)(A)(ii) and our case law, which we have
    referenced above. We think, however, Puga-Yanez reads Clemens too broadly
    and our case law too narrowly.
    Specifically, the defendant in Clemens was found to have been
    masturbating, naked and kneeling, while straddling a six-year-old child, “who
    was not wearing underwear[,] had oil on her body,” and was asleep in her twin-
    size bed. See 
    Clemens, 733 S.E.2d at 70
    –71. Moreover, these acts were seen
    by the child’s aunt as they occurred in plain sight in a well-lit room. 
    Id. at 71.
    The Georgia Court of Appeals held that the defendant’s conduct constituted
    the sexual molestation of a child under § 16-6-4(a) because it occurred in the
    child’s presence. 9 
    Id. And, as
    we have previously held, “[g]ratifying or arousing one’s sexual
    desires in the actual or constructive presence of a child” qualifies as the “sexual
    abuse of a minor” under § 2L1.2(b)(1)(A)(ii) of the Guidelines. See Izaguirre-
    
    Flores, 405 F.3d at 275
    . Puga-Yanez correctly points out that we have noted
    whether a minor suffered physical or psychological harm as a result of the
    defendant’s abuse in past cases. See, e.g., Izaguirre-
    Flores, 405 F.3d at 275
    –
    76. However, we have not, as Puga-Yanez suggests, held that a minor suffering
    harm is an element of the generic offense of “sexual abuse of a minor.” “Indeed,
    9 See also Prophitt v. State, 
    784 S.E.2d 103
    , 106 (Ga. Ct. App. 2016) (“Moreover, in []
    Clemens . . . we held that even though the alleged victim was or may have been unaware of
    the defendant’s inappropriate conduct, that fact did not take the defendant outside of the
    child’s presence. Instead, we found that the presence element was satisfied because the
    evidence showed that the defendant was aware of the child’s physical proximity to him and
    proceeded to engage in the inappropriate conduct either in spite of or because of the child’s
    presence.”) (emphasis added) (citing 
    Clemens, 733 S.E.2d at 71
    ).
    7
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    this court has established a per se rule that gratifying or arousing one’s sexual
    desires in the presence of a child is abusive because it involves taking undue
    or unfair advantage of the minor.” United States v. Cortez-Cortez, 
    770 F.3d 355
    , 358 (5th Cir. 2014). Thus, harm to the minor is not an element of the
    generic crime of “sexual abuse of a minor,” even though, as we have previously
    noted, the minor often suffers either physical or psychological harm as result
    of the defendant’s conduct. 10
    We therefore reject Puga-Yanez’s argument that the abhorrent conduct
    of the defendant in Clemens, with the presence of the child as the object of his
    gratification, falls outside what we have considered to be the “sexual abuse of
    a child” under the Guidelines. 11              Consequently, Puga-Yanez’s categorical
    challenge fails.
    Thus, we hold that Clemens does not prohibit conduct that is otherwise
    permitted under our interpretation of § 2L1.2, nor does it alter our reading of
    Ga. Code Ann. § 16-6-4(a) or require us to reconsider our holding in Olalde-
    Hernandez.
    10    The absence of “harm to the minor” as an element of the generic crime is consistent
    with the generic definitions of “sexual abuse of a minor” used by other circuits that this court
    has previously cited with approval. For example, neither the Fourth Circuit nor Eleventh
    Circuit requires that the minor be aware of the abuse, much less that the minor suffer harm.
    See, e.g., United States v. Perez-Perez, 
    737 F.3d 950
    , 954 (4th Cir. 2013) (“[O]ur definition of
    the Guideline crime . . . [does not] require[] . . . the victim’s awareness or knowledge of the
    defendant’s presence.”); United States v. Ramirez-Garcia, 
    646 F.3d 778
    , 782 (11th Cir. 2011)
    (“[Because] ‘[m]isuse’ or ‘maltreatment’ are expansive words that include many different acts
    . . . [the generic] definition does not limit ‘sexual abuse of a minor’ to instances . . . where the
    minor is aware of the abuse, or where the perpetrator makes contact with the minor.”).
    11 See, e.g., United States v. Balderas-Rubio, 
    499 F.3d 470
    , 473 (5th Cir. 2007) (“[T]he
    phrase ‘sexual abuse of a minor’ is defined broadly to include not only those crimes that
    involve sexual contact with a minor but also those crimes that involve sexual conduct in the
    presence of a minor.”); cf. United States v. Martinez-Vega, 
    471 F.3d 559
    , 562 (5th Cir. 2006)
    (“If gratifying one’s sexual desires while in the presence of a minor constitutes sexual abuse
    of a minor, then sexual assault of a child certainly constitutes sexual abuse of a minor.”)
    8
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    IV.
    In sum, we find that the district court’s application of § 2L1.2(b)(1)(A)(ii)
    does not constitute error. The district court’s judgment imposing a sentence of
    48 months based on § 2L1.2(b)(1)(A)(ii) is
    AFFIRMED.
    9