United States v. Marcelo Montanez-Trejo, 708 F. App'x 161

Marcelo Montanez‑Trejo, a Mexican national, pleaded guilty (no plea agreement) to illegal reentry after removal; prior conviction: two counts of Nebraska first‑degree sexual assault (2011) involving minors.
PSR applied U.S.S.G. §2L1.2(a) base level 8, a 16‑level enhancement under §2L1.2(b)(1)(A)(ii) (prior ‘‘crime of violence’’), and a 3‑level reduction for acceptance, for total offense level 21; criminal history II; Guidelines 41–51 months; district court sentenced to 30 months.
Judgment recited conviction under 8 U.S.C. §1326(a) and (b)(2) (20‑year maximum for prior aggravated felony). Montanez‑Trejo appealed, arguing the prior Nebraska conviction was not an aggravated felony and did not qualify as sexual abuse of a minor for the Guidelines enhancement.
The court reviewed both issues for plain error because they were not raised below.
The panel concluded the Shepard‑approved record did not establish Montanez‑Trejo’s plea was to the subsection (c) offense (sexual conduct with a minor) and therefore the prior conviction could not be shown categorically to be the enumerated aggravated felony sexual abuse of a minor.
Result: conviction and sentence affirmed, but remanded to correct the judgment to reflect conviction under §1326(b)(1) (10‑year maximum), not §1326(b)(2).

Issue	Montanez‑Trejo's Argument	Government's Argument	Held
Whether prior Nebraska conviction is an "aggravated felony" (sexual abuse of a minor) for §1326(b)(2)	Nebraska statute is overbroad; Shepard‑approved charging document charged alternate subsections so record does not show conviction was for sexual abuse of a minor	Prior conviction qualifies or, at minimum, divisibility/modified categorical approach resolves the statute in favor of §1326(b)(2)	Plain error: district court erred in listing §1326(b)(2) because Shepard‑approved record does not establish the subsection; remand to correct judgment to §1326(b)(1)
Whether the Nebraska conviction is a "crime of violence" meriting 16‑level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii)	Subsection (c) (19 and victim 12–15) does not match generic sexual abuse of a minor because (a) generic requires victim <16 and (b) consensual close‑in‑age conduct is not "abuse"	Precedent (Rodriguez) foreclosed arguments; Esquivel‑Quintana changed the law on the maximum age, and government concedes some prior holdings are affected but argues any error is not plain	Affirmed application of enhancement — defendant cannot show plain error: the questions left open by Esquivel‑Quintana (age differential and consensual close‑in‑age conduct) would require extending precedent and thus are not sufficiently clear to satisfy plain‑error prong 2

Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017) (Supreme Court holds generic "sexual abuse of a minor" in statutory‑rape context requires victim younger than 16)
Mathis v. United States, 136 S. Ct. 2243 (2016) (describes modified categorical approach and divisibility requirement)
Shepard v. United States, 544 U.S. 13 (2005) (limits what records may be consulted to identify the offense of conviction after a guilty plea)
United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc) (earlier Fifth Circuit definition of generic sexual abuse of a minor; addressed age and age‑differential issues)
United States v. Najera‑Najera, 519 F.3d 509 (5th Cir. 2008) (describes elements of generic sexual abuse of a minor)