USA v. Esteban Rivera-Pina, No. 12-40810 (5th Cir. 2013)
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Case: 12-40810 Document: 00512289884 Page: 1 Date Filed: 06/27/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-40810 Summary Calendar June 27, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ESTEBAN RIVERA-PINA, also known as Esteban Pina-Rivera, also known as Estaban Rivera, also known as Steve Pana, also known as Estaban Pina-Rivera, also known as Esteban Rivera, also known as Esteban Steven Rivera, also known as Estevan Rivera, also known as Steven Rivera, also known as Estepan Rivera, also known as Steve Pana-Rivera, also known as Efrain Delgad-Rivera, also known as Estavan Rivera, also known as Esepan Rivera, also known as Estebal Rivera-Pina, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:11-CR-213-1 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Esteban Rivera-Pina appeals his 96-month sentence for being illegally present in the United States following deportation. He argues that the district court erred by imposing a 16-level sentence enhancement pursuant to United * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40810 Document: 00512289884 Page: 2 Date Filed: 06/27/2013 No. 12-40810 States Sentencing Guidelines § 2L1.2 based upon his two prior convictions for indecency with a child in violation of Texas Penal Code § 21.11. He contends that § 21.11 does not satisfy the generic, contemporary meaning of either statutory rape or sexual abuse of a minor because it criminalizes sexual conduct with persons under the age of 17, and it criminalizes conduct where the age differential is less than four years. He concedes that his arguments are foreclosed by this court s precedent, but he seeks to preserve them for further review. The Government has moved for summary affirmance or, in the alternative, an extension of time to file a brief. Rivera-Pina s arguments are foreclosed by our decision in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc). The defendant in Rodriguez challenged a sentence enhancement under § 2L1.2(b)(1)(A)(ii) based on his conviction for sexual assault of a child in violation of Texas Penal Code § 22.011(a)(2). Rodriguez, 711 F.3d at 544. We rejected his contention that § 22.011(a)(2) is broader than the generic, contemporary meaning of sexual abuse of a minor because it prescribes a three-year instead of a four-year age differential between the victim and the defendant. Id. at 562 n. 8. We also rejected his challenge to the Texas statute s definition of the term child as a person under age 17. Id. Consequently, the motion for summary affirmance is GRANTED and the motion for an extension of time is DENIED. AFFIRMED. 2
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