Appellant Guillermo Ayala was convicted below of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a)-(b). Prior to being deported, Ayala was convicted of indecency with a child in violation of Texas Penal Code § 21.11(a)(1). Equating “indecency with a child” under Texas law with “sexual abuse of a minor” for purposes of § 2L1.2 of the Federal Sentencing Guidelines, the district court enhanced Ayala’s offense level by sixteen and imposed a sentence of seventy-eight months’ imprisonment.
Ayala contends that § 21.11(a)(1) proscribes conduct beyond that falling within the ordinary and contemporary meaning of “sexual abuse of a minor,” and therefore that his prior conviction under that statute is not a legitimate basis for a crime-of-violence enhancement under the Guidelines. Specifically, he argues that the definition of “child” under § 21.11(a) — a person less than seventeen years of age — is inconsistent with the contemporary and ordinary meaning of “minor” because, for
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purposes of many states’ statutory rape laws, a person’s “age of consent” is deemed to be sixteen.
See generally United States v. Lopez-DeLeon,
As Ayala recognizes, we have already addressed the issue of whether a violation of § 21.11(a) constitutes sexual abuse of a minor for purposes of § 2L1.2; in answering in the affirmative, we have stated that “ ‘a child younger than 17 years[ ]’ is clearly a ‘minor.’ ”
United States v. Zavala-Sustaita,