United States v. Tomas Puga-Yanez
2016 U.S. App. LEXIS 12728
| 5th Cir. | 2016Background
- Defendant Tomas Puga-Yanez pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b). No plea agreement.
- Presentence Report applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because of a 2005 Georgia felony conviction under Ga. Code Ann. § 16-6-4(a) (child molestation), treating it as an enumerated “sexual abuse of a minor.”
- With the enhancement, offense level 21, criminal history III, advisory range 46–57 months; district court sentenced Puga-Yanez to 48 months.
- Puga-Yanez objected, arguing § 16-6-4(a) is categorically broader than the Guidelines’ generic “sexual abuse of a minor” and thus the enhancement should not apply.
- The Fifth Circuit reviewed de novo whether the prior conviction qualifies as a Guidelines “crime of violence” and affirmed, relying principally on prior circuit precedent interpreting § 16-6-4(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ga. Code Ann. § 16-6-4(a) is categorically broader than the Guidelines’ generic "sexual abuse of a minor," so § 2L1.2(b)(1)(A)(ii) enhancement should not apply | § 16-6-4(a) criminalizes conduct outside the generic meaning (e.g., acts where the child is unaware; no required harm), so it is broader and inapplicable | § 16-6-4(a) falls within the generic, contemporary meaning because it criminalizes sexual conduct involving a minor or sexual gratification in the presence of a minor—i.e., taking undue advantage of the minor | Court affirmed: § 16-6-4(a) corresponds to the generic offense; enhancement proper |
| Whether intervening Georgia decisions (e.g., Clemens) change circuit precedent (Olalde-Hernandez) | Clemens shows Georgia interprets § 16-6-4(a) to reach conduct where the child may be unaware, suggesting expansion beyond the generic federal definition | Prior Fifth Circuit precedent controls; Clemens does not enlarge § 16-6-4(a) beyond what this court has already recognized | Court held Olalde-Hernandez remains controlling; Clemens does not alter the court’s prior interpretation |
Key Cases Cited
- United States v. Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011) (held Ga. § 16-6-4(a) matches generic "sexual abuse of a minor" for sentencing enhancement)
- United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (framework for defining generic "sexual abuse of a minor")
- United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) (gratifying sexual desire in presence of child constitutes sexual abuse of a minor)
- United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (standard of review for preserved sentencing objections)
- United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015) (if state statute encompasses conduct outside generic meaning, conviction is not a federal crime of violence)
- United States v. Cortez-Cortez, 770 F.3d 355 (5th Cir. 2014) (per se rule: sexual gratification in presence of child is abusive)
- Clemens v. State, 733 S.E.2d 67 (Ga. Ct. App. 2012) (Georgia court held presence element satisfied even if victim unaware of defendant’s sexual act)