United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40301

____________

United States of America, 

Plaintiff—Appellee,

versus

Rudolfo Cardona-Garcia, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:23-CR-263-1

______________________________

Before Dennis, Southwick, and Ho, Circuit Judges.

Per Curiam:*†

Rudolfo Cardona-Garcia contests the district court’s application of a 

“crime of violence” United States Sentencing Guidelines (“U.S.S.G.” or 

“Guidelines”) sentencing enhancement to his prior South Dakota 

convictions for sexual contact with a child. Cardona-Garcia failed to object to 

the application of the sentencing enhancement at the district court and now 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

† Judge Ho would affirm based on United States v. Fuentes-Canales, 902 F.3d 

468, 476–82 (5th Cir. 2018).

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2024

Lyle W. Cayce

Clerk

Case: 23-40301 Document: 72-1 Page: 1 Date Filed: 08/15/2024
23-40301

2

appeals his sentence, contending that the district court committed plain 

error. For the reasons that follow, we REVERSE and REMAND for 

resentencing.

I

Rudolfo Cardona-Garcia pleaded guilty to being unlawfully found in 

the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b). 

Prior to sentencing, the U.S. Probation Officer, in a Presentence 

Investigation Report (“PSR”), recommended that Cardona-Garcia receive 

several U.S.S.G. sentencing enhancements on account of his prior

convictions for sexual contact with a child under sixteen years old, in 

violation of South Dakota law, for which he was sentenced to a fifteen-year 

term of imprisonment. Relevant to this appeal, the district court assessed two 

criminal history points under U.S.S.G. § 4A1.1(e), finding that CardonaGarcia’s prior convictions for sexual contact with a child were “crimes of 

violence” as defined in the Guidelines. The PSR calculated CardonaGarcia’s criminal history score as five and his corresponding criminal history 

category as III, yielding a Guidelines’ sentencing range of twenty-four to 

thirty months imprisonment.

1 The district court adopted the PSR and 

sentenced Cardona-Garcia to twenty-seven months of imprisonment with no 

subsequent term of supervised release.

For the first time on appeal, Cardona-Garcia argues his prior South 

Dakota convictions are not “crimes of violence” as defined by the Guidelines 

and, therefore, that the district court plainly erred in applying the § 4A1.1(e)

sentencing enhancement.2

_____________________

1 Without the § 4A1.1(e) enhancement, the Guidelines’ sentencing range would

have been twenty-one to twenty-seven months imprisonment. 2 Cardona-Garcia filed objections to the PSR, requesting a downward departure 

pursuant to U.S.S.G. §5K2.0 and/or downward variance pursuant to U.S.C. §3553 because 

Case: 23-40301 Document: 72-1 Page: 2 Date Filed: 08/15/2024
23-40301

3

II

Because Cardona-Garcia did not object to the application of § 

4A1.1(e) to his prior South Dakota convictions in the district court, we review 

for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009); United 

States v. Soza, 874 F.3d 884, 896–97 (5th Cir. 2017) (noting plain error review 

applies to claims of unpreserved U.S.S.G. errors). Plain-error review involves 

four prongs, each of which must be satisfied before this court may intervene: 

(1) “there must be an error or defect . . . that has not been intentionally 

relinquished or abandoned”; (2) “the legal error must be clear or obvious, 

rather than subject to reasonable dispute”; (3) “the error must have affected 

the appellant’s substantial rights”; and (4) “if the above three prongs are 

satisfied, the court of appeals has the discretion to remedy the error —

discretion which ought to be exercised only if the error seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 

U.S. at 135 (citations and internal quotations omitted and alterations and 

emphasis in original).

“Relief under the plain-error standard ‘will be difficult to get, as it 

should be,’” but it is not impossible. United States v. Figueroa-Coello, 920 

F.3d 260, 264 (5th Cir. 2019) (quoting United States v. Dominguez Benitez, 

542 U.S. 74, 83 n.9 (2004)). “The focus of plain error review should be 

‘whether the severity of the error’s harm demands reversal,’ and not 

‘whether the district court’s action deserves rebuke.’” United States v. 

Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (alterations and 

quotation omitted).

III

_____________________

of his family responsibilities (to work and provide for his elderly mother in Guatemala and 

his children). Notably, he did not challenge the PSR’s U.S.S.G. calculations. 

Case: 23-40301 Document: 72-1 Page: 3 Date Filed: 08/15/2024
23-40301

4

The Government correctly concedes that an error affecting CardonaGarcia’s substantial rights occurred—the first and third prongs of plain error 

review. Specifically, the parties agree an error occurred since CardonaGarcia’s prior convictions for sexual contact with a child do not qualify as 

“crimes of violence” as defined by the Guidelines. As to the third prong, 

without the erroneously applied enhancement, the Guidelines range would 

have been twenty-one to twenty-seven months imprisonment, rather than 

twenty-four to thirty months imprisonment. A defendant has generally met 

his burden under the third prong where “the district court mistakenly 

deemed applicable an incorrect, higher Guidelines range,” since, upon 

correction, there is “a reasonable probability of a different outcome.” 

Molina-Martinez v. United States, 578 U.S. 189, 200 (2016). Such is the case 

here. Nevertheless, the Government argues that the error was not clear or

obvious, and does not affect the fairness, integrity, and public reputation of 

judicial proceedings—the second and fourth plain-error prongs. We take 

each disputed prong in turn.

The second prong of plain error review inquires whether the district 

court’s classification of Cardona-Garcia’s prior convictions for sexual 

contact with a child under S.D. Codified Laws § 22-22-7 as “crimes of 

violence” was clear or obvious error. To determine “whether an error is 

‘clear or obvious,’ [this Court] look[s] to the ‘state of the law at the time of 

appeal,’ and [it] must decide whether controlling circuit or Supreme Court 

precedent has reached the issue in question, or whether the legal question 

would be subject to ‘reasonable dispute.’” United States v. Scott, 821 F.3d 

562, 570–71 (5th Cir. 2016) (quoting United States v. Fields, 777 F.3d 799, 802 

(5th Cir. 2015)). 

The Government notes, and Cardona-Garcia acknowledges, that 

there is no Fifth Circuit precedent addressing whether S.D. Codified 

Laws § 22-22-7 is a “crime of violence.” While “[a] lack of binding 

Case: 23-40301 Document: 72-1 Page: 4 Date Filed: 08/15/2024
23-40301

5

authority is often dispositive in the plain-error context.” United States v. 

Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015), in United States v. Johnson, 956 

F.3d 740, 746 (5th Cir. 2020) (cleaned up), we held that, “[i]n some 

circumstances, an error is evident from a plain reading of the statute and thus, 

is obvious.” Cf. United States v. Urbina-Fuentes, 900 F.3d 687, 697–98 (5th 

Cir. 2018) (finding that an error involving the categorical approach was plain 

despite the lack of Fifth Circuit case law addressing the relevant statute). The 

error made by the district court fits Johnson’s mold: it is so apparent that it 

can be identified based upon a simple and straightforward reading of the 

statute in question, S.D. Codified Laws § 22-22-7, and the applicable 

Guidelines enhancement.

Specifically, the offense with which Cardona-Garcia was charged, 

S.D. Codified Laws § 22-22-7, provides that “[a]ny person, sixteen 

years of age or older, who knowingly engages in sexual contact with another 

person, other than that person’s spouse if the other person is under the age 

of sixteen years is guilty of a Class 3 felony.” South Dakota law defines 

“sexual contact” as “any touching, not amounting to rape, whether or not 

through clothing or other covering, of the breasts of a female or the genitalia 

or anus of any person with the intent to arouse or gratify the sexual desire of 

either party.” S.D. Codified Laws § 22-22-7.1 

For purposes of the applicable enhancement, U.S.S.G. § 4A1.1(e), the 

term “crime of violence” has the meaning set forth in § 4B1.2(a). See

U.S.S.G. § 4A1.2(p). U.S.S.G. § 4B1.2(a) defines a “crime of violence” as 

any state or federal offense punishable by more than one year of 

imprisonment that

(1) has as an element the use, attempted use, or threatened use 

of physical force against the person of another; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated 

assault, a forcible sex offense, robbery, arson, extortion, or the 

Case: 23-40301 Document: 72-1 Page: 5 Date Filed: 08/15/2024
23-40301

6

use or unlawful possession of a firearm described in 26 U.S.C. 

§ 5845(a) or explosive material as defined in 18 U.S.C. § 

841(c).

U.S.S.G. § 4B1.2(a) (emphasis added). Cardona-Garcia argues that 

his prior convictions do not qualify as a “crime of violence” under either § 

4B1.2(a)(1) or (2). Because there is no indication in the PSR or the sentencing 

hearing transcript of which subsection of § 4B1.2(a) that the district court 

based its enhancement decision on, we must determine whether S.D. 

Codified Laws § 22-22-7 is a “crime of violence” under either 

subsection.

A

For the first prong of U.S.S.G. § 4B1.2(a), the use of force prong, the 

“crime of violence” enhancement is justified if the conviction for the crime 

necessarily requires a finding that a defendant used, attempted to use, or 

threatened to use physical force against the person of another. § 4B1.2(a)(1); 

see also United States v. Ceron, 775 F.3d 222, 227 (5th Cir. 2014) (addressing 

the identically-worded clause under U.S.S.G. § 2L1.2). Supreme Court and 

Fifth Circuit precedents support Cardona-Garcia’s contention that “[m]ere 

touching, absent an element of causation of bodily injury or resistance, does 

not categorically require as an element the use, attempted use or threatened 

use of physical force.” In terms of Supreme Court precedent, in the context 

of the Armed Career Criminal Act (“ACCA”), the Court has held that the 

term “physical force,” when used to define a “violent felony” under 18 

U.S.C. § 924(e)(2)(B)(i), requires “violent force—that is, force capable of 

causing physical pain or injury to another person.” Curtis Johnson v. United 

States, 559 U.S. 133, 140 (2010) (emphasis in original). In doing so, the 

Supreme Court rejected a definition of “physical force” that would 

encompass a crime committed with any physical contact, no matter how 

slight. Id. The Supreme Court has since reiterated that—in the context of the 

Case: 23-40301 Document: 72-1 Page: 6 Date Filed: 08/15/2024
23-40301

7

ACCA—“physical force” means force which is “capable of causing physical 

injury.” Stokeling v. United States, 586 U.S. 73, 85 (2019).

Our court, when presented with several states’ laws prohibiting sexual 

contact without consent, has found the level of force required did not rise to 

the requisite level of “physical force” to qualify as a “crime of violence.” In 

United States v. Houston, 364 F.3d 243, 248 (5th Cir. 2004), we held that a 

defendant’s prior conviction for statutory rape under Texas law was plainly

not a “crime of violence” under § 4B1.2(a)(1) because use of force was not 

an element of the Texas statute at issue. In United States v. Rosas-Pulido, 526 

F.3d 829, 836 (5th Cir. 2008), we examined a similar Minnesota statute that 

prohibited “unwanted touching and pinching of a breast accomplished only 

by the force inherent in that touching and pinching” and held that this did 

not rise to the level of “physical force” to qualify as a “crime of violence.”

Finally, in United States v. Rosales-Orozco, 794 F. App’x 369, 372–74 (5th Cir. 

2019) (unpublished) we held that a Pennsylvania statute which only 

penalized sexual intercourse without consent, including by incapacitation or 

deceit, did not have the use of physical force as an element. 

The caselaw demonstrates that a statute criminalizing “mere 

touching” does not include the requisite element— “the use, attempted use, 

or threatened use of physical force against the person of another”— to meet 

the definition of a crime of violence. U.S.S.G. § 4B1.2(a)(1). The crime at 

issue here, S.D. Codified Laws § 22-22-7, provides that “[a]ny person, 

sixteen years of age or older, who knowingly engages in sexual contact with 

another person” is guilty of a felony, where sexual contact is defined as “any

touching . . . whether or not through clothing or other covering.” The South 

Dakota offense clearly criminalizes any touching, whether or not through 

clothing. Our caselaw makes it clear that a statute which criminalizes mere 

touching, like S.D. Codified Laws § 22-22-7, does not have as an 

element “the use, attempted use, or threatened use of physical force against 

Case: 23-40301 Document: 72-1 Page: 7 Date Filed: 08/15/2024
23-40301

8

the person of another.” Houston, 364 F.3d at 248; Rosas-Pulido, 526 F.3d at 

836; Rosales-Orozco, 794 F. App’x at 372–74. Thus, based on a plain reading 

of the statutes, this is not a “crime of violence” under § 4B1.2(a)(1). 

B

Next, we must determine whether S.D. Codified Laws § 22-22-

7 is a “forcible sex offense” under U.S.S.G. § 4B1.2(a)(2). The second 

subsection of § 4B1.2(a) lists various offenses that qualify as “crimes of 

violence,” including a “forcible sex offense.” § 4B1.2(a)(2). The Guidelines

further define “forcible sex offense” as statutory rape, but “only if the sexual 

abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. 

§ 2241(c) or (B) an offense under state law that would have been an offense 

under section 2241(c) if the offense had occurred within the special maritime 

and territorial jurisdiction of the United States.” U.S.S.G. § 4B1.2(e)(1) 

(emphasis added). With respect to subsection (A), 18 U.S.C. § 2241(c) 

criminalizes aggravated sexual abuse that crosses state lines and requires a 

“sexual act” with a child under twelve years of age. Sexual act is defined as 

“the intentional touching, not through the clothing, of the genitalia of 

another person who has not attained the age of 16 years with an intent to 

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any 

person.” 18 U.S.C. § 2246(2)(D). 

A straightforward reading of the Guidelines and S.D. Codified 

Laws § 22-22-7 leads us to the conclusion that Cardona-Garcia’s prior 

convictions are not “forcible sex offenses” under the second subsection of § 

4B1.2(a). Our reading of the at-issue federal and state statutes reveals that 

S.D. Codified Laws § 22-22-7 is broader than the federal definition of 

sexual act under 18 U.S.C. § 2241 in several ways. First, the South Dakota 

offense criminalizes any sexual contact, including touching through clothing, 

but touching through clothing is specifically excluded from the scope of § 

Case: 23-40301 Document: 72-1 Page: 8 Date Filed: 08/15/2024
23-40301

9

2241, as it requires the intentional touching be not through the clothing.

Second, the South Dakota statute includes the touching of other areas in 

addition to the genitalia, which is the only body part included in the federal 

offense. And third, the state statute applies more broadly to victims under 

sixteen years old, while the federal statute requires the victim be under twelve 

years old. To find that S.D. Codified Laws § 22-22-7 is a forcible sex 

offense, then, is clear error. Under either the first or the second prongs of § 

4B1.2(a), characterizing S.D. Codified Laws § 22-22-7 as a “crime of 

violence” is clear and obvious error. As such, we conclude that CardonaGarcia has satisfied the second prong of clear error. 

C

The fourth plain-error prong requires us to consider whether “the 

error affects the fairness, integrity, or public reputation of judicial 

proceedings such that the appellate court should exercise its discretion to 

correct the error.” Escalante-Reyes, 689 F.3d at 425 (internal quotation marks 

and citation omitted). This prong “is ‘dependent upon the degree of the 

error and the particular facts of the case.’” United States v. Mims, 992 F.3d 

406, 410 (5th Cir. 2021) (quoting United States v. Davis, 602 F.3d 643, 651 

(5th Cir. 2010)). The Supreme Court has cautioned courts that “[i]n the 

ordinary case, . . . the failure to correct a plain Guidelines error that affects a 

defendant’s substantial rights will seriously affect the fairness, integrity, and 

public reputation of judicial proceedings.” Rosales-Mireles v. United States, 

585 U.S. 129, 145 (2018). Still, “any exercise of discretion at the fourth prong 

. . . inherently requires ‘a case-specific and fact-intensive’ inquiry” and 

“[t]here may be instances where countervailing factors satisfy the court of 

appeals that the fairness, integrity, and public reputation of the proceedings 

will be preserved absent correction.” Id. at 142.

Case: 23-40301 Document: 72-1 Page: 9 Date Filed: 08/15/2024
23-40301

10

In sentencing Cardona-Garcia, the district court stated that, after 

considering the factors in 18 U.S.C. § 3553(a), it felt a sentence within the 

Guidelines was appropriate. There was no discussion of countervailing 

factors or facts the district court relied upon in finding that a Guidelines 

sentence was appropriate. The district court did not state that it felt the 

sentence was appropriate even if the Guidelines calculation was wrong. 

There is a reasonable risk that, had the Guidelines been calculated correctly 

(yielding a range of imprisonment of twenty-one to twenty-seven months) as 

opposed to incorrectly (yielding a range of imprisonment of twenty-four to 

thirty months), Cardona-Garcia would have been sentenced differently.3

“The risk of unnecessary deprivation of liberty particularly undermines the 

fairness, integrity, or public reputation of judicial proceedings.” Id. at 140.

Accordingly, we exercise our discretion to correct the plain error.

IV

For the foregoing reasons, we REVERSE and REMAND for 

resentencing. 

_____________________

3 The bulk of the Government’s argument on this prong points to the “heinous, 

undisputed facts” underlying Cardona-Garcia’s conviction. Although the facts underlying 

Cardona-Garcia’s previous conviction for sexual contact with a child are undeniably 

horrific, the Supreme Court has cautioned appellate courts that although criminal history 

is relevant to the district court’s inquiry under 18 U.S.C. § 3553(a), it is not relevant to 

“whether the plain procedural error in [the criminal defendant’s] sentencing proceedings, 

which may have resulted in a longer sentence than is justified in light of that history, 

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 

Rosales-Mireles, 585 U.S. at 145 n.5.

Case: 23-40301 Document: 72-1 Page: 10 Date Filed: 08/15/2024