from the United States District Court for the Southern
District of Texas
JOLLY, SMITH, and PRADO, Circuit Judges.
E. SMITH, Circuit Judge:
Solano-Hernandez appeals his conviction and sentence for
illegal reentry after deportation. He contends that the
district court erred in characterizing his New Jersey
conviction for "Endangering the Welfare of a Child"
as a crime of violence ("COV"). We affirm.
2012, Solano-Hernandez pleaded guilty in the District of New
Jersey to illegal reentry after deportation following a
conviction for an aggravated felony, 8 U.S.C. § 1326(a)
and (b)(2). The plea agreement stipulated that his 1995 New
Jersey conviction for third-degree "Endangering the
Welfare of a Child" involved the sexual abuse of a minor
and was therefore a "crime of violence" as defined
by U.S. Sentencing Guidelines Manual ("U.S.S.G.")
§ 2L1.2 cmt. n.1(B)(iii). Solano-Hernandez was sentenced
to twenty-seven months' imprisonment, as well as a
two-year term of supervised release ("SR") that
commenced in October 2013. He was deported in November 2013.
March 2014, Solano-Hernandez was arrested for illegally
entering the United States and was deported without
prosecution the next month. In October 2014, his probation
officer filed a revocation petition in the District of New
Jersey, alleging that Solano-Hernandez had violated the terms
of SR because of his illegal reentry. The district court
issued an arrest warrant.
December 2014, Solano-Hernandez was once again arrested for
illegally entering and was indicted in the Southern District
of Texas for illegal reentry of a previously deported alien,
8 U.S.C. § 1326. Jurisdiction over the SR violation was
transferred to the Southern District of Texas.
Solano-Hernandez pleaded guilty, without a plea agreement, to
the new illegal-reentry offense.
presentence report ("PSR") assessed
Solano-Hernandez a base offense level of 8 under U.S.S.G.
§ 2L1.2(a). He received a 12-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) because he had been
deported after a conviction for a felony COV. The basis of
that enhancement was the same 1995 New Jersey conviction for
"Endangering the Welfare of a Child." Following a
three-level reduction for acceptance of responsibility,
U.S.S.G. § 3E1.1, the PSR assigned a total offense level
of 17, which, combined with a criminal-history category of
III, yielded a guideline range of 30 to 37 months.
Solano-Hernandez did not object to the PSR's guidelines
district court conducted a joint sentencing and revocation
hearing and sentenced Solano-Hernandez to 30 months'
imprisonment and three years of SR for the new reentry
offense. The judgment states that he was sentenced under 8
U.S.C. § 1326(a) and (b)(2). The district court also
revoked his prior SR and sentenced him to four months'
imprisonment, to be served consecutively to the
illegal-reentry sentence. Solano-Hernandez appealed the
§ 1326 conviction and the revocation judgment, and we
consolidated the appeals.
contends that the district court erred in characterizing his
1995 conviction as a COV, thus triggering the twelve-level
enhancement. Because he did not object, we apply the
plain-error standard. United States v. Peltier, 505
F.3d 389, 391 (5th Cir. 2007). To establish plain error,
Solano-Hernandez must show (1) an error; (2) that was clear
or obvious; and (3) that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009).
"[I]f the above three prongs are satisfied, [we have]
the discretion to remedy the error-discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Id. (quotation marks and
alterations omitted). "Meeting all four prongs is
difficult, as it should be." Id. (quotation
determine whether a conviction qualifies as a COV, we apply
the "categorical approach, " United States v.
Rodriguez, 711 F.3d 541, 544, 549 (5th Cir. 2013) (en
banc), under which we first look to the offense category that
triggers the enhancement. We
evaluate whether the meaning of that offense category is
clear from the language of the enhancement at issue or its
applicable commentary. If not, we . . . determine whether
that undefined offense category is an offense category
defined at common law, or an offense category that is not
defined at common law . . . [I]f the offense category is a
non-common-law offense category, then we derive its
"generic, contemporary meaning" from its common
usage as stated in legal and other well-accepted
Id. at 544.
look to the state statute of conviction and, ordinarily,
compare its elements to the generic meaning of the offense
category. Id. But where a state statute is
divisible, having "multiple alternative elements, "
we may apply the "modified categorical approach, "
which permits us to "look[ ] to a limited class of
documents . . . to determine what crime, with what elements,
a defendant was convicted of." We can then compare the
elements of that crime to the generic meaning of the offense
category. Mathis, 136 S.Ct. at 2249.
relevant offense category is "sexual abuse of a
minor." That category "is neither clearly
defined in the Guidelines nor an offense defined at common
law." Thus, we must look to its generic,
contemporary meaning. "'Sexual' is defined as
'[o]f, pertaining to, affecting, or characteristic of
sex, the sexes, or the sex organs and their
functions.'" "Abuse" is defined as "to
take unfair or undue advantage of or to use or treat so as to
injure, hurt, or damage." Id. (quotation marks
omitted). "We have repeatedly endorsed the definition of
'sexual abuse' set forth in Black's Law
Dictionary, which is 'an illegal or wrongful sex act,
esp. one performed against a minor by an
adult.'" Finally, "minor" is a person
under the age of eighteen. Rodriguez, 711 F.3d at
was convicted under a statute providing that
[a]ny person having a legal duty for the care of a child or
who has assumed responsibility for the care of a child who
engages in sexual conduct which would impair or debauch the
morals of the child, or who causes the child harm that would
make the child an abused or neglected child as defined in
R.S.9:6-1, R.S.9:6-3 and P.L.1974, c. 119, s. 1 (C.9:6-8.21)
is guilty of a crime of the second degree. Any other person
who engages in conduct or who causes ...