USA v. Juan Hernandez-Morales, No. 09-50503 (5th Cir. 2010)
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Case: 09-50503 Document: 00511107546 Page: 1 Date Filed: 05/11/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50503 Summary Calendar May 11, 2010 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-ofviolence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because HernandezMorales 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 No. 09-50503 Date Filed: 05/11/2010 Hernandez-Morales argues that the district court erred in imposing a 16level 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 HernandezMorales s argument is fully foreclosed from further debate. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). AFFIRMED. 2
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