United States v. Alberto Elizondo-Hernandez
2014 U.S. App. LEXIS 10679
| 5th Cir. | 2014Background
- Defendant Alberto Elizondo‑Hernandez pleaded guilty to illegal reentry after removal.
- District court applied a 16‑level "crime‑of‑violence" (COV) enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a prior Texas indecency with a child conviction (Tex. Penal Code § 21.11).
- The state judgment indicated a second‑degree felony conviction for indecency by contact (§ 21.11(a)(1)).
- Defendant argued the Texas statute is broader than the generic sexual‑abuse‑of‑a‑minor definition (victim under 17; no four‑year age differential) and that the least culpable conduct under the statute is not "sexual abuse."
- Defendant also challenged treating the Texas conviction as an aggravated felony for purposes of § 1326 sentencing, and argued for remand to a § 1326(b)(1) disposition.
- The district court sentenced within the Guidelines to 46 months; this Court reviewed the characterization of the prior offense de novo and affirmed.
Issues
| Issue | Elizondo‑Hernandez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Texas indecency with a child (§ 21.11(a)(1)) is a COV under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Statute is broader than generic "sexual abuse of a minor" (victim under 17; no ≥4‑year age gap) and least culpable conduct may not be "abuse" | Using the modified categorical approach, the state judgment shows conviction for indecency by contact, which Fifth Circuit precedent treats as a COV | Affirmed: § 21.11(a)(1) indecency by contact is a COV for § 2L1.2 enhancement |
| Whether state‑court documents may be used to narrow the statute to the specific subsection of conviction | State documents cannot be used to narrow the statute to avoid enhancement | Shepard‑permitted documents (judgment) may be consulted under the modified categorical approach to identify the subsection | Affirmed: modified categorical approach proper; judgment shows § 21.11(a)(1) conviction |
| Whether the least culpable act of § 21.11 avoids classification as "sexual abuse of a minor" after Rodriguez plain‑meaning approach | Rodriguez forecloses prior arguments; least culpable conduct still falls within COV as applied here | Rodriguez and subsequent Fifth Circuit decisions uphold enhancement where statute/subsection matches prior precedents | Affirmed: Rodriguez does not change result; earlier precedents control |
| Whether treating the Texas conviction as an aggravated felony for § 1326 sentencing was error | Court erred and, if so, remand to § 1326(b)(1) required | Judgment did not reference § 1326(b)(2); sentence is within § 1326(b)(1) and indecency with contact is categorically an aggravated felony under Fifth Circuit precedent | Affirmed: no error; conviction qualifies as aggravated felony and sentence is lawful under § 1326(b)(1) |
Key Cases Cited
- Rodriguez v. United States, 711 F.3d 541 (en banc) (plain‑meaning approach for non‑common‑law offense categories)
- Izaguirre‑Flores v. United States, 405 F.3d 270 (de novo review of offense characterization)
- Miranda‑Ortegon v. United States, 670 F.3d 661 (modified categorical approach usage)
- Moreno‑Florean v. United States, 542 F.3d 445 (considering least culpable conduct when statute cannot be narrowed)
- Garcia‑Arrellano v. United States, 522 F.3d 477 (identifying § 21.11(a)(1) as indecency by contact from a second‑degree judgment)
- Najera‑Najera v. United States, 519 F.3d 509 (holding indecency‑by‑contact conviction is a COV for § 2L1.2)
- Chacon v. United States, 742 F.3d 219 (post‑Rodriguez affirmation of § 2L1.2 enhancement under a similar statute)
- Velasquez‑Overa v. United States, 100 F.3d 418 (categorical holding that § 21.11(a)(1) indecency by contact qualifies as a crime of violence under 18 U.S.C. § 16(b))