USA v. Ayala, No. 07-41149 (5th Cir. 2008)
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 8, 2008 No. 07-41149 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GUILLERMO AYALA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas Before JOLLY, GARZA, and ELROD, Circuit Judges. PER CURIAM: Appellant Guillermo Ayala was convicted below of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a)-(b). Prior to being deported, Ayala was convicted of indecency with a child in violation of Texas Penal Code § 21.11(a)(1). Equating indecency with a child under Texas law with sexual abuse of a minor for purposes of § 2L1.2 of the Federal Sentencing Guidelines, the district court enhanced Ayala s offense level by sixteen and imposed a sentence of seventy-eight months imprisonment. Ayala contends that § 21.11(a)(1) proscribes conduct beyond that falling within the ordinary and contemporary meaning of sexual abuse of a minor, and therefore that his prior conviction under that statute is not a legitimate basis for a crime-of-violence enhancement under the Guidelines. Specifically, he argues that the definition of child under § 21.11(a) a person less than seventeen No. 07-41149 years of age is inconsistent with the contemporary and ordinary meaning of minor because, for purposes of many states statutory rape laws, a person s age of consent is deemed to be sixteen. See generally United States v. LopezDeleon, 513 F.3d 472 (5th Cir. 2008) (discussing when children reach the age of consent under various states statutory rape laws). As Ayala recognizes, we have already addressed the issue of whether a violation of § 21.11(a) constitutes sexual abuse of a minor for purposes of § 2L1.2; in answering in the affirmative, we have stated that a child younger than 17 years[] is clearly a minor. United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000) (quoting § 21.11(a)); see also United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008) (relying on Zavala-Sustaita in stating under generic-meaning analysis, a person younger than 17 years old is a child ). Because our precedent forecloses Ayala s argument, the judgment of the district court is AFFIRMED. 2
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