United States v. Olalde-Hernandez
2011 U.S. App. LEXIS 147
| 5th Cir. | 2011Background
- Olalde-Hernandez pleaded guilty to illegal reentry under 8 U.S.C. §1326 and was sentenced to 70 months.
- He argues the sentence was improperly enhanced because his Georgia child-molestation conviction is not a “crime of violence” under U.S.S.G. §2L1.2(b)(1)(A)(ii) and that this violates due process.
- The district court classified the Georgia conviction as a crime of violence; Olalde-Hernandez challenges that determination.
- The court applies a two-prong definition of “crime of violence”: enumerated offenses (e.g., sexual abuse of a minor) or offenses with force as an element.
- The court ultimately holds Georgia §16-6-4(a) (child molestation) is an enumerated “sexual abuse of a minor,” so the enhancement applies; other due process arguments are foreclosed by Almendarez-Torres.
- The Fifth Circuit affirms the sentence and rejects the remaining challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §16-6-4(a) is a crime of violence under §2L1.2(b)(1)(A)(ii) | Olalde-Hernandez contends §16-6-4(a) is not enumerated and lacks force element. | The government contends it falls within the enumerated offense of sexual abuse of a minor. | Yes; §16-6-4(a) is a crime of violence as sexual abuse of a minor. |
| Whether the sentence is valid given due process and prior-conviction rules (Almendarez-Torres/Apprendi) | Argues prior conviction must be an element or indictment; invokes Apprendi risk. | Supreme Court precedent (Almendarez-Torres, later reaffirmed) forecloses this challenge. | Foreclosed; prior-conviction doctrine governs; sentence affirmed. |
Key Cases Cited
- Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) (defines crime of violence and common-sense approach to enumerated offenses)
- Balderas-Rubio, 499 F.3d 470 (5th Cir. 2007) (sexual abuse of a minor includes in presence of a minor; enumerated offense)
- Najera-Najera, 519 F.3d 509 (5th Cir. 2008) (focus on statute subdivision; minor/sexual/abusive factors)
- Munoz-Ortenza, 563 F.3d 112 (5th Cir. 2009) (common-sense vs categorical approach; minor definitions)
- Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008) (recognizes sexual abuse of a minor as a crime of violence)
- Velez-Alderete, 569 F.3d 541 (5th Cir. 2009) (treatment of underlying statutorily defined offenses)
- Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004) (offense can be crime of violence by enumerated list or force element)
- Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) (reiterated common-sense approach; prior offenses)