Jose Antonio Olalde-Hernandez pleaded guilty to one count of illegal reentry into the United States following deportation under 8 U.S.C. § 1326 and was sentenced to seventy months of imprisonment. He argues that his sentence was improperly enhanced because his prior Georgia conviction for child molestation was not a “crime of violence,” as the term is used in the United States Sentencing Guidelines (U.S.S.G), and that his sentence violates due process. We affirm.
I.
With respect to his first argument, Olalde-Hernandez contends that the district court erred by concluding that his conviction for child molestation under Georgia Code § 16-6-4(a) constitutes a “crime ' of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). In particular, he argues that child molestation under Georgia law is not a “crime of violence” because (1) the term “molestation” is not one of the enumerated offenses defining the term “crime of violence,” and (2) the Georgia statute encompasses criminal conduct that does not require evidence of force or violence and lacks as an element the use of force or violence. The government contends that Georgia’s child-molestation statute constitutes “sexual abuse of a minor,” which is an enumerated “crime of violence” under the sentencing guidelines. For the following reasons, we agree with the government and affirm the district court’s determination that child molestation under Georgia Code § 16-6-4(a) constitutes a “crime of violence.”
Because Olalde-Hernandez raised this argument before the district court, we review the district court’s characterization of a prior conviction as a “crime of violence”
de novo. United States v. IzaguirreFlores,
“In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alternatively employed (1) a ‘common sense approach,’ defining the offense according to its ‘ordinary, contemporary, [and] common meaning,’ or (2) a ‘categorical approach,’ defining the offense according to a ‘generic, contemporary definition.’ ”
United States v. Mungiar-Portillo,
whether the prior offense constitutes a crime of violence (1) because it is an enumerated offense or (2) because it has as an element the use or attempted use of force. If it is the former, then the common sense approach is used; if it is the latter, then the categorical approach is used.
Id.
(citation omitted). Olalde-Hernandez urges this court to use a “categorical approach.” This approach, however, is appropriate only if this court determines that the prior offense at issue does not actually constitute an enumerated “crime of violence.”
See Izaguirre-Flores,
In ascertaining whether a particular offense constitutes a crime of violence, this court looks “ ‘only to the particular subdivision of the statute under which the defendant was convicted.’ ”
United States v. Najerar-Najera,
With respect to the second and third elements, this court has noted that the term “sexual” is defined as “ ‘of, relating to, or associated with sex as a characteristic of an organic being,’ ” and the term “abuse” is defined as “to ‘take unfair or undue advantage of or ‘to use or treat so as to injure, hurt, or damage.’ ”
Izaguirre-Flores,
Applying these definitions, this court has previously held that an act is “sexual” when it “must have sexual arousal or gratification as its purpose.”
Zavala-Sustaita,
This reading is consistent with this court’s analyses of similar offenses. For example, in
Izaguirre-Flores,
this court analyzed a North Carolina statute that prohibited a person sixteen years of age or older (and at least five years older than the victim) from taking or attempting to take “any immoral, improper, or indecent liberties” with any child under the age of sixteen for the purpose of arousing or gratifying sexual desire.
Gratifying or arousing one’s sexual desires in the actual or constructive presence of a child is sexual abuse of a minor. Taking indecent liberties with a *376 child to gratify one’s sexual desire constitutes “sexual abuse of a minor” because it involves taking undue or unfair advantage of the minor and causing such minor psychological — if not physical— harm.
Id.
at 275-76 (citations omitted). In reaching that decision, this court relied in part on
Zavala-Sustaita,
which refused to limit the term “sexual abuse of a minor” to only those offenses involving physical contact.
Similarly, in
Baldems-Rubio,
this court determined that Oklahoma’s statute prohibiting “Indecency or Lewd Acts with a Child Under the Age of Sixteen” constitutes “sexual abuse of a minor” and is therefore a “crime of violence” under the Sentencing Guidelines.
Because we hold that § 16-6-4(a) constitutes the enumerated offense of “sexual abuse of a minor,” we need not employ a “categorical approach” to determine whether the underlying statute of conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another” according to its “generic, contemporary definition.” U.S.S.G. § 2L1.2 cmt. n.l(B)(iii);
Mungia-Portillo,
II.
With respect to his second argument, Olalde-Hernandez maintains that his sentence violates due process and is illegal because the indictment did not charge him with having a prior felony conviction and, alternatively, that 8 U.S.C. § 1326(b) is unconstitutional. As Olalde-Hernandez conceded during sentencing and on appeal, the Supreme Court has specifically foreclosed these arguments. In
AlmendarezTorres v. United States,
III.
For the foregoing reasons, we conclude that Olalde-Hernandez’s prior conviction is a “crime of violence” for purposes of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Olalde-Hernandez’s other arguments are foreclosed by Almendarez-Torres.
AFFIRMED.
Notes
. Olalde-Hernandez does not even attempt to argue that the proscribed conduct fails to satisfy this three-part test. He fails to present any arguments supporting his bald assertion that Georgia’s child-molestation statute does not qualify as an enumerated offense under the Sentencing Guidelines.