IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40849

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS ALFREDO LANDAVERDE-ESCALANTE,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:14-CR-238-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Carlos Alfredo Landaverde-Escalante appeals the sentence imposed 

following his guilty plea conviction for illegal reentry into the United States 

after deportation. He argues that the district court erred in imposing a 16-

level “crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based 

on his 2013 Georgia conviction for sexual battery against a child under 16 years 

of age and that the district court erred in treating his prior offense as an 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 20, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-40849 Document: 00513050226 Page: 1 Date Filed: 05/20/2015
No. 14-40849

“aggravated felony” under 8 U.S.C. § 1326(b)(2). He asserts that (1) the offense 

does not have as an element the use, attempted use, or threatened use of 

physical force against another person; (2) the offense is not sexual abuse of a 

minor because it is not “sexual,” as the offense does not have sexual 

gratification as an element; and (3) the offense is not a forcible sex offense for 

the same reasons.

Because Landaverde-Escalante did not object to the enhancement in the 

district court, review is limited to plain error. See United States v. ChavezHernandez, 671 F.3d 494, 497 (5th Cir. 2012). To demonstrate plain error, he

must show a forfeited error that is clear or obvious and that affects his 

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If 

he makes such a showing, this court has the discretion to correct the error but 

only if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. See id.

We have not previously addressed whether a Georgia conviction for 

sexual battery of a minor constitutes sexual abuse of a minor for purposes of 

§ 2L1.2(b)(1)(A)(ii). When case law is unsettled, we typically will not hold that 

an error is clear or obvious. United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 

2010); United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011). LandaverdeEscalante cites to an opinion of a Georgia federal district court, but he does not 

cite to an opinion of this court or any other circuit court supporting his claim. 

See United States v. Hernandez-Gonzalez, 842 F. Supp. 2d 1373, 1376-77 (M.D. 

Ga. 2012). Given that the case law concerning this issue is unsettled, the 

district court did not plainly err in imposing a 16-level enhancement under 

§ 2L1.2(b)(1)(A)(ii) based on the determination that Landaverde-Escalante’s 

Georgia conviction for sexual battery of a minor constituted sexual abuse of a 

minor. See Trejo, 610 F.3d at 319; Miller, 665 F.3d at 136. Moreover, because 

2

 Case: 14-40849 Document: 00513050226 Page: 2 Date Filed: 05/20/2015
No. 14-40849

we use the same analysis to determine whether a prior conviction constitutes 

sexual abuse of a minor for purposes of both § 2L1.2 and § 1326(b)(2), see 

United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. 2008), 

Landaverde-Escalante also has not shown plain error in the characterization 

of his offense as involving an “aggravated felony” under § 1326(b). See Puckett, 

556 U.S. at 135.

AFFIRMED.

3

 Case: 14-40849 Document: 00513050226 Page: 3 Date Filed: 05/20/2015