United States v. Victor Cortez-Cortez
2014 U.S. App. LEXIS 20736
| 5th Cir. | 2014Background
- Cortez-Cortez pled guilty to illegal reentry under 8 U.S.C. § 1326 after deportation.
- Baseline offense level was 8; court imposed a 16-level crime of violence enhancement and a 2-level acceptance reduction, yielding a total offense level of 22.
- Criminal history category II produced a guidelines range of 46–57 months; district court varied downward due to the prior conviction’s timing to 30 months with 3 years of supervised release.
- Cortez challenged Indiana’s § 35-42-4-9(b)(1) as broader than the contemporary meaning of sexual abuse of a minor, arguing it punishes non-abusive conduct.
- Court’s decision: affirmed the 16-level enhancement, concluding the Indiana statute qualifies as sexual abuse of a minor under § 2L1.2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Indiana conviction constitutes a crime of violence | Cortez argues statute broadens beyond generic sexual abuse of a minor | State statute fits generic meaning of sexual abuse of a minor | Yes; statute fits the crime of violence category under § 2L1.2(b)(1)(A)(ii) |
| Whether the district court properly classified the prior offense as sexual abuse of a minor | Cortez contends the statute’s breadth leads to non-abusive conduct | Statute includes intent to arouse/satisfy sexual desires, constituting abuse | Yes; statute satisfies sexual abuse of a minor under the plain-meaning approach |
Key Cases Cited
- Izaguirre–Flores, 405 F.3d 270 (5th Cir. 2005) (defines sexual as arousal/gratification purpose; abuse includes presence of minor in sexual context)
- Rodriguez, 711 F.3d 541 (5th Cir. en banc 2013) (plain-meaning approach to sexual abuse of a minor)
- Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014) (sexually abusive conduct in context of minor; broad definition of sexual)
- Gilliland v. State, 979 N.E.2d 1049 (Ind. Ct. App. 2012) (discusses Indiana interpretation of § 35-42-4-9(b))
- Acosta, 401 F. App’x 973 (5th Cir. 2010) (per curiam; holding touching a minor in lewd manner is sexual abuse of a minor)
- Balderas-Rubio, 499 F.3d 470 (5th Cir. 2007) (broadly defines sexual abuse of a minor to include in-presence conduct)
- Zavala–Sustaita, 214 F.3d 601 (5th Cir. 2000) (presence of a minor can constitute abuse)
- Gaiskov v. Holder, 567 F.3d 832 (7th Cir. 2009) (statutory interpretation of § 35-42-4-9(b))