USA v. Mauricio Blanco-Fortuna, No. 12-41287 (5th Cir. 2013)
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Case: 12-41287 Document: 00512297467 Page: 1 Date Filed: 07/05/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-41287 Summary Calendar July 5, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MAURICIO BLANCO-FORTUNA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:12-CR-363-1 Before JOLLY, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* Mauricio Blanco-Fortuna appeals the 72-month sentence imposed following his conviction for being illegally present in the United States following a prior deportation subsequent to a felony conviction. He contends that the district court erred by imposing a 16-level enhancement under § 2L1.2 of the Sentencing Guidelines based on his prior conviction for statutory rape under Georgia Code Annotated §16-6-3. Specifically, Blanco-Fortuna argues that his prior offense does not satisfy the generic, contemporary meaning of the * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41287 Document: 00512297467 Page: 2 Date Filed: 07/05/2013 No. 12-41287 enumerated offenses of statutory rape or sexual abuse of a minor because the statute of conviction prescribes a three-year age differential between the victim and the defendant, rather than four years. As Blanco-Fortuna concedes, his sole argument is effectively foreclosed by our decision in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), petition for cert. filed, No. 12-10695 (U.S. June 6, 2013). In Rodriguez, we applied a plain-meaning approach to determine the generic, contemporary meaning of statutory rape and sexual abuse of a minor and concluded that the generic definitions of those offense categories do not include any specific age differential. Id. at 559-62 & n.28. We expressly rejected the claim that the statute at issue in that case § 22.011(a)(2) of the Texas Penal Code did not satisfy the generic, contemporary meaning of sexual abuse of a minor because the statute prescribed a three-year instead of a four-year age differential between the victim and the defendant. Id. at 562 n.28. Blanco-Fortuna asserts that he is raising the issue solely to preserve it for further review. In light of Rodriguez, the district court did not err in imposing a 16-level enhancement under § 2L1.2 based upon Blanco-Fortuna s prior conviction for statutory rape under § 16-6-3(a). Consequently, the motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2
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