United States v. Penaloza-Carlon, No. 16-40438 (5th Cir. 2016)

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Defendant appealed his sentence after pleading guilty for having been found unlawfully in the United States after deportation after a felony conviction. The district court applied a twelve-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) based on his Oregon conviction of rape in the third degree. Defendant relies on decisions of the Ninth Circuit that the Oregon offense does not qualify as sexual abuse of a minor because it lacks the abuse element in that it does not expressly prohibit conduct that causes physical or psychological harm in light of the age of the victim. However, the court concluded that those decisions are not binding authority in this circuit and are inconsistent with the court's own precedent. Defendant has failed to show that the district court committed clear or obvious error by finding that the Oregon conviction was categorically sexual abuse of a minor, and thus the district court did not commit any error in applying the twelve-level enhancement. Accordingly, the court affirmed the judgment.

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Case: 16-40438 Document: 00513773577 Page: 1 Date Filed: 11/28/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-40438 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 28, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus EDUARDO PENALOZA-CARLON, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: Eduardo Penaloza-Carlon pleaded guilty of having been found unlawfully in the United States after deportation after a felony conviction, and he was sentenced, below the advisory guideline range, to twenty-two months of imprisonment and three years of supervised release. On appeal, PenalozaCarlon contends that the district court erred in applying the twelve-level Case: 16-40438 Document: 00513773577 Page: 2 Date Filed: 11/28/2016 No. 16-40438 enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his Oregon conviction of rape in the third degree. He contends that the Oregon statute sweeps more broadly than the generic definitions of statutory rape, forcible sex offense, and sexual abuse of a minor for purposes of the § 2L1.2 crime-ofviolence enhancement. In the district court, Penaloza-Carlon urged that the § 2L1.2 enhancement did not apply because the Oregon statute lacks an age difference. Thus, we review de novo whether that conviction is a crime of violence under § 2L1.2 on that basis. See United States v. Bonilla, 524 F.3d 647, 651–52 (5th Cir. 2008). Because Penaloza-Carlon did not maintain, in the district court, that the conduct proscribed by the Oregon statute is broader than the generic, contemporary meaning of, inter alia, sexual abuse of a minor, we review that point for plain error. See United States v. Garcia-Perez, 779 F.3d 278, 281 & n.2 (5th Cir. 2015). The Oregon statute defines rape in the third degree as “sexual intercourse with another person under 16 years of age.” OR. REV. STAT. § 163.355(1). To determine whether conduct criminalized under a statute constitutes “sexual abuse of a minor,” this court examines (1) whether the conduct involved a minor; (2) whether the conduct was “sexual”; and (3) whether the conduct constituted “abus[e].” United States v. Puga-Yanez, 829 F.3d 317, 320–21 (5th Cir. 2016). The first two prongs are satisfied. First, the Oregon offense requires the involvement of a minor because it calls for the victim to be under the age of sixteen. Penaloza-Carlon’s argument to the contrary is foreclosed. See United States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc). Second, the offense is “sexual” in nature because it has “sexual arousal or gratification as its purpose.” United States v. Olalde–Hernandez, 630 F.3d 372, 375 (5th Cir. 2 Case: 16-40438 Document: 00513773577 Page: 3 Date Filed: 11/28/2016 No. 16-40438 2011). Penaloza-Carlon disputes the third element—whether the conduct was “abusive.” He relies on decisions of the Ninth Circuit that the Oregon offense does not qualify as sexual abuse of a minor because it lacks the abuse element in that it does not expressly prohibit conduct that causes physical or psychological harm in light of the age of the victim. Those decisions, however, are not binding authority in this circuit and are inconsistent with our precedent. 1 Penaloza-Carlon therefore has failed to show that the district court committed clear or obvious error by finding that the Oregon conviction was categorically sexual abuse of a minor. See Puckett v. United States, 556 U.S. 129, 135 (2009). Accordingly, he has not shown that the court erred in applying the twelve-level enhancement under § 2L1.2(b)(1)(A)(ii) AFFIRMED. See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (holding that other circuits’ decisions are persuasive only); Puga-Yanez, 829 F.3d at 322 & n.10 (holding that, even though psychological or physical harm to the minor often stems from the defendant’s conduct, “harm to the minor is not an element of the generic crime of ‘sexual abuse of a minor’ [under § 2L1.2(b)(1)(A)(ii)]”). 1 3

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