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