PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

ANTONIO DE LA CRUZ-GARCIA,

Defendant–Appellant.

No. 08-2298

 

Appeal from the United States District Court 

 for the District of New Mexico 

(D.C. No. 2:08-CR-00378-BB-1)

 

Scott M. Davidson, Scott M. Davidson, Ph.D., Esq., LLC, Albuquerque, New Mexico for 

the Defendant–Appellant. 

Laura Fashing (Gregory J. Fouratt, U.S. Attorney, with her on the briefs), Office of the 

United States Attorney, District of New Mexico, Albuquerque, New Mexico for the 

Plaintiff–Appellee. 

 

Before TACHA, LUCERO, and HARTZ, Circuit Judges. 

LUCERO, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 5, 2010

Elisabeth A. Shumaker 

Clerk of Court
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 In this case we must decide whether a Colorado conviction for attempted sexual 

assault on a child is a “crime of violence” under the United States Sentencing Guidelines 

(“U.S.S.G.”) that warrants a sixteen-level sentencing enhancement. We conclude that the 

crime described by the Colorado statute at issue constitutes “sexual abuse of a minor” and 

is therefore a “crime of violence.” Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm. 

I

Border patrol agents stopped Antonio De La Cruz-Garcia just north of the United 

States-Mexico border on December 5, 2007. He admitted that he was a citizen of Mexico 

and was in the United States illegally. Immigration records showed that he had been 

deported just eight days earlier, on November 27, 2007. De La Cruz-Garcia pled guilty 

to illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(2) on April 

9, 2008, without a plea agreement. 

 Prior to sentencing, a United States Probation Officer prepared a presentence 

investigation report (“PSR”) recommending a sixteen-level enhancement because, prior 

to removal, De La Cruz-Garcia had been convicted of a “crime of violence” as defined by 

U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii) (2007).1

 The PSR explained that De La 

Cruz-Garcia had been convicted of felony “Sexual Assault/Child – Attempted” in 2006 in 

 1

 Unless otherwise noted, all Guidelines citations refer to the 2007 version of the 

Guidelines, which were in effect when De La Cruz-Garcia committed the offense of 

conviction. 
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Colorado state court. According to the PSR, De La Cruz-Garcia had been staying with a 

Colorado family because he was homeless. One member of the family, an eight-year-old 

girl, awoke to De La Cruz-Garcia touching her vagina and buttocks over her clothes. She 

told him to stop, but he did not. The victim left the room and later told her sister, who 

reported the incident to her parents. 

 De La Cruz-Garcia objected to the enhancement arguing that the Colorado statute 

under which he was convicted, Colo. Rev. Stat. § 18-3-405(1), criminalizes conduct that 

is not necessarily a “crime of violence.” The district court disagreed, concluding that a 

sixteen-level increase was warranted. De La Cruz-Garcia’s advisory Guidelines range 

was thus fifty-seven to seventy-one months. However, the district court granted De La 

Cruz-Garcia a downward departure because “the sexual abuse of a minor was not of the 

most serious type.” It imposed a sentence of forty-eight months’ imprisonment. De La 

Cruz-Garcia timely appealed his sentence.

II 

A

In reviewing a district court’s application of the Guidelines, we review its legal 

conclusions de novo and its factual findings for clear error. United States v. Wolfe, 435 

F.3d 1289, 1295 (10th Cir. 2006). De La Cruz-Garcia claims the district court committed 

three errors: (1) it considered the individual facts of his state-court conviction rather than 

applying the “categorical approach” mandated by Taylor v. United States, 495 U.S. 575, 

600-02 (1990); (2) it fashioned his sentence based on the 2008 version of the Guidelines 
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instead of the version in effect when the offense of conviction was committed in violation 

of United States v. Foote, 413 F.3d 1240, 1249 (10th Cir. 2005); and (3) it erroneously 

concluded that Colo. Rev. Stat. § 18-3-405(1) is a “crime of violence” under U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii). 

De La Cruz-Garcia’s first two arguments relate to the manner in which the district 

court determined that the Colorado statute criminalizes a “crime of violence.” However, 

if the district court’s ultimate conclusion that De La Cruz-Garcia was subject to a sixteenlevel enhancement was correct, any asserted procedural errors in reaching that conclusion 

would be harmless. We will not reverse a harmless error.2

 See United States v. 

Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008). Because De La Cruz-Garcia’s two 

procedural claims must fail if his substantive claim fails—and, as discussed infra, we 

conclude that it does—we will assume for purposes of this appeal that the district court 

relied on the specific facts of De La Cruz-Garcia’s conviction and that the court used the 

2008 version of the Guidelines, despite our doubts that either assumption is accurate. 

 2 De La Cruz-Garcia did not advance his second argument—alleged use of the 

2008 Guidelines—before the district court. Accordingly, we review that claim only for 

plain error. United States v. Massey, 48 F.3d 1560, 1568 (10th Cir. 1995). Plain error is: 

“(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously 

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

v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008). To satisfy the third prong 

of this test, De La Cruz-Garcia must show that “the error affected the outcome of the 

district court proceedings.” United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th 

Cir. 2007) (quotation omitted). Thus, a harmless error cannot be plain error. 
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B

U.S.S.G. § 2L1.2(b)(1) imposes a sixteen-level enhancement “[i]f the defendant 

previously was deported . . . after . . . a conviction for a felony that is . . . a crime of 

violence.” The phrase “crime of violence” is defined as: 

murder, manslaughter, kidnapping, aggravated assault, forcible sex 

offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, 

extortionate extension of credit, burglary of a dwelling, or any offense 

under federal, state, or local law that has as an element the use, attempted 

use, or threatened use of physical force against the person of another. 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).3

 

 In determining whether a prior conviction constitutes a “crime of violence,” courts 

must follow the “categorical approach.” Taylor, 495 U.S. at 602. To do so, courts look 

to the statute of conviction rather than examining the particular facts of the defendant’s 

crime. United States v. Romero-Hernandez, 505 F.3d 1082, 1085 (10th Cir. 2007). 

 The Colorado statute under which De La Cruz-Garcia was convicted states: “Any 

actor who knowingly subjects another not his or her spouse to any sexual contact 

commits sexual assault on a child if the victim is less than fifteen years of age and the 

 3

 Effective November 1, 2008, this provision was amended to note that “forcible 

sex offenses” include those “where consent to the conduct is not given or is not legally 

valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” 

U.S.S.G. Manual supp. to app. C, amend. 722, at 302-03 (November 1, 2009). 
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actor is at least four years older than the victim.” Colo. Rev. Stat. § 18-3-405(1).4 The 

phrase “sexual contact” is defined as: 

the knowing touching of the victim’s intimate parts by the actor, or of the 

actor’s intimate parts by the victim, or the knowing touching of the clothing 

covering the immediate area of the victim’s or actor’s intimate parts if that 

sexual contact is for the purposes of sexual arousal, gratification, or abuse. 

Colo. Rev. Stat. § 18-3-401(4). 

 We hold that the Colorado statute criminalizes only activity that qualifies as 

“sexual abuse of a minor,” and thus meets the definition of “crime of violence.” U.S.S.G. 

§ 2L1.2 cmt. n.1(B)(iii). Because the Guidelines do not define the phrase “sexual abuse 

of a minor,” “we look to the ‘ordinary, contemporary, and common’ meanings of the 

words used.” Romero-Hernandez, 505 F.3d at 1087 (quoting Perrin v. United States, 444 

U.S. 37, 42 (1979)).5

 A “minor” is a “person who is under the age of legal competence. . . . In most 

states, a person is no longer a minor after reaching the age of 18.” Black’s Law 

Dictionary at 997 (6th ed. 1991); see also Webster’s 3d Int’l Dictionary Unabridged at 

1439 (1993) (defining “minor” as “a person of either sex under full age of majority . . . 

 4

 The Guidelines do not distinguish between an attempt and a successful 

commission for purposes of determining whether a crime is a “crime of violence.” See

U.S.S.G. § 2L1.2 cmt. n.5. 

5

 De La Cruz-Garcia argues that the Colorado statute is broader than the federal 

crime denominated “sexual abuse of a minor,” 18 U.S.C. § 2243(a). This contention 

misses the mark. We do not look to the definition of a federal crime to determine 

whether a state statute is a crime of violence; we look to the ordinary meaning of the 

words used in the Guidelines. Romero-Hernandez, 50 F.3d at 1087. 
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one who in England and generally in the U.S. is under 21 years of age”). Although there 

may be some ambiguity as to precisely when an individual ceases being a minor, the term 

certainly applies to a person fourteen years of age, the maximum age of a victim under 

Colo. Rev. Stat. § 18-3-405(1). 

“Sexual” means “of or relating to the sphere of behavior associated with libidinal 

gratification.” Webster’s 3d Int’l Dictionary Unabridged at 2082. Because the Colorado 

statute requires as an element the touching of the victim or the perpetrator’s “intimate 

parts . . . for the purpose of sexual arousal, gratification, or abuse,” Colo. Rev. Stat. § 18-

3-401(4), it is limited to “sexual” acts. 

Lastly, “abuse” is defined as to “take unfair or undue advantage of” and “to use or 

treat so as to injure, hurt, or damage.” Webster’s 3d Int’l Dictionary Unabridged at 8; see 

also Black’s Law Dictionary at 10 (defining “abuse” as “[p]hysical or mental 

maltreatment”). The Colorado statute is limited to abusive conduct; it requires: 

the knowing touching of the victim’s intimate parts by the actor, or of the 

actor’s intimate parts by the victim, or the knowing touching of the clothing 

covering the immediate area of the victim’s or actor’s intimate parts if that 

sexual contact is for the purposes of sexual arousal, gratification, or abuse. 

Colo. Rev. Stat. § 18-3-401(4). Because the “victim” must be a minor, the abovedescribed contact is necessarily abusive. When an older person subjects a minor to such 

contact, the minor is legally incapable of granting consent, see Colo. Rev. Stat. § 18-3-

405(1); engaging in nonconsensual sexual activity with a victim inherently involves 

taking unfair or undue advantage of the victim. Further, such contact is almost certain to 
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injure, hurt, or damage the minor psychologically, if not physically. 

De La Cruz-Garcia argues that the Colorado statute would apply to a person 

touching his own intimate parts or the clothing covering those parts in the presence of a 

minor, and that such conduct would not constitute a crime of violence. De La CruzGarcia’s construction is strained. By expressly referring to “touching of the victim’s

intimate parts by the actor, or of the actor’s intimate parts by the victim,” the statute 

seemingly requires some contact between the victim and perpetrator. Colo. Rev. Stat. § 

18-3-401(4) (emphases added). The final portion of the sentence, “or the knowing 

touching of the clothing covering the immediate area of the victim’s or actor’s intimate 

parts,” id., appears merely to clarify that “sexual contact” may occur through clothing. 

In any event, adopting De La Cruz-Garcia’s interpretation of the statute would not 

aid him. We agree with our sibling circuit that exposing a minor to a lascivious display 

also qualifies as “sexual abuse” because it “requires exposure with knowledge of the 

child’s presence, thereby wrongly and improperly using the minor and thereby harming 

the minor.” United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). As the 

Fifth Circuit further noted, 

[a] distinction that treats a stranger’s brief groping of a child in a public 

shower as qualitatively more serious than the conduct of an adult who 

verbally forces a child to watch him repeatedly engage in sex acts is 

unjustifiable. Both acts are clearly forms of “sexual abuse” as that phrase is 

commonly understood. . . . 

. . . Since psychological harm can occur without physical contact, a 

distinction based only on physical contact would miss the essential nature 

of “sexual abuse.” 
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Id. at 605. 

 Accordingly, we hold that even under the broadest interpretation of Colo. Rev. 

Stat. § 18-3-405(1), the statute criminalizes only acts that constitute “sexual abuse of a 

minor” and thus “crime[s] of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). In 

so holding, we join several circuits that have construed similar statutes as crimes of 

violence. See United States v. Garcia-Juarez, 421 F.3d 655, 656, 659 (8th Cir. 2005) 

(Iowa Code § 709.8, “Lascivious Acts with a Child,” criminalizes sexual abuse of a 

minor); United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th Cir. 2005) 

(“[U]nlawful sexual activity with certain minors qualifies as a crime of violence within 

the Guidelines definition, either as sexual abuse of a minor or statutory rape.”); ZavalaSustaita, 214 F.3d at 602, 607 (Tex. Penal Code § 21.11(a)(2), “sexual indecency with a 

child by exposure,” is sexual abuse of a minor); United States v. Baron-Medina, 187 F.3d 

1144, 1147 (9th Cir. 1999) (“[C]onviction under California Penal Code Section 288(a) 

[for committing a lewd or lascivious act with a minor] qualified as a conviction for 

‘sexual abuse of a minor’ . . . .”). 

III

 Because the district court properly imposed a sixteen-level enhancement under 

U.S.S.G. § 2L1.2(b)(1)(A)(ii), De La Cruz-Garcia’s sentence is AFFIRMED.