United States v. Jose Ramirez Galvan ( 2017 )

Case: 16-11653 Document: 00514240840 Page: 1 Date Filed: 11/16/2017
REVISED November 16, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11653 FILED
Summary Calendar October 17, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS RAMIREZ GALVAN, also known as Jose Ramirezgalvan, also
known as Jose Ramirez, also known as Vicente Ortega-Ramirez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-47-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Louis Ramirez Galvan pleaded guilty to illegally reentering the
United States after he had been removed, and he received a 24-month term of
imprisonment, which was within the advisory guidelines range. He argues on
appeal that the district court erred in classifying his prior Texas sexual assault
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-11653
of a child offense as an aggravated felony and thus urges this court to remand
for resentencing and for reformation of the judgment to delete the reference to
8 U.S.C. § 1326(b)(2), the statutory subsection that applies to those convicted
of illegal reentry after having been removed following an aggravated felony
conviction. Because Ramirez Galvan did not raise this issue in the district
court, our review is for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 368 (5th Cir. 2009).
We have held that a similar Texas offense, indecency with a child, which
punishes a person who “engages in sexual contact with a child” younger than
17 years old, Texas Penal Code § 21.11(a)(1), is an aggravated felony under 8
U.S.C. § 1101(a)(43)(F) because it “by its nature, involves a substantial risk
that physical force against the person or property of another may be used in
the course of committing the offense.” 18 U.S.C. § 16(b); United States v.
Velazquez-Overa, 100 F.3d 418, 421-22 (5th Cir. 1996). We explained that it
was “obvious” that crimes in which children are sexually molested “typically
occur in close quarters, and are generally perpetrated by an adult upon a victim
who is not only smaller, weaker, and less experienced, but is also generally
susceptible to acceding to the coercive power of adult authority figures.”
Velazquez-Overa, 100 F.3d at 422. We went on to explain that “[a] child has
very few, if any, resources to deter the use of physical force by an adult intent
on touching the child,” concluding that “[i]n such circumstances, there is a
significant likelihood that physical force may be used to perpetrate the crime.”
Id.
That rationale extends to Ramirez Galvan’s offense, sexual assault of a
child younger than 17 years old under Texas Penal Code § 22.011(a)(2), (c)(1),
which punishes conduct that goes beyond mere sexual contact and specifically
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No. 16-11653
covers explicit sexual acts involving a child. 1 Accordingly, the district court
did not commit a clear or obvious error in finding that Ramirez Galvan’s sexual
assault of a child conviction was an aggravated felony. See Puckett v. United
States, 556 U.S. 129, 135 (2009). The judgment is AFFIRMED.
1 This court previously concluded that Texas Penal Code § 22.011(a)(2) was an
aggravated felony because it “comport[ed] with the generic meaning of ‘sexual abuse of a
minor’ and ‘statutory rape.’” United States v. Rodriguez, 711 F.3d 541, 562 (5th Cir. 2013) (en
banc). In reaching that conclusion, we determined that the generic definitions of those
offenses required that the victim be younger than 18. See id. at 560–61. The Supreme Court
has since held that “the generic federal definition of sexual abuse of a minor requires that
the victim be younger than 16.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017).
Although Esquivel-Quintana abrogates Rodriguez’s age-specific holding, that case’s
remaining holdings are still good law. See, e.g., Stroman Realty, Inc. v. Wercinski, 513 F.3d
476, 489 (5th Cir. 2008) (citing Cent. Pines Land Co. v. United States, 274 F.3d 881, 894 (5th
Cir. 2001)).
This court’s recent decision in United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th
Cir. 2017), holding that Tennessee statutory rape is not an aggravated felony, does not control
the outcome here because the court in that case did not address whether a sexual offense
against a minor can qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and 18
U.S.C. § 16(b).
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