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United States v. Solano-Hernandez

United States Court of Appeals, Fifth Circuit

January 26, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
SANTIAGO SOLANO-HERNANDEZ, Defendant-Appellant.

         Appeals from the United States District Court for the Southern District of Texas

          Before JOLLY, SMITH, and PRADO, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Santiago 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.

         I.

         In 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.

         In 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.

         In 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.

         The presentence report ("PSR") assessed Solano-Hernandez a base offense level of 8 under U.S.S.G. § 2L1.2(a).[1] 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 calculations.

         The 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.[2]

         II.

         Solano-Hernandez 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 marks omitted).

         A.

         To 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 dictionaries.

Id. at 544.

         We then 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."[3] We can then compare the elements of that crime to the generic meaning of the offense category. Mathis, 136 S.Ct. at 2249.

         The relevant offense category is "sexual abuse of a minor."[4] That category "is neither clearly defined in the Guidelines nor an offense defined at common law."[5] 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.'"[6] "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.'"[7] Finally, "minor" is a person under the age of eighteen. Rodriguez, 711 F.3d at 560.

         Solano-Hernandez 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 ...

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