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, Albuqu erque, New Mexico for the Defendant–Appellant. Laura Fashing (Gregory J. Fouratt, U.S. Atto rney, 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-2- In this case we must decide whether a Colorado conviction for attempted sexual assault on a child is a “crime of violence” und er the United States Se ntencing Guidelines (“U.S.S.G.”) that warrants a sixteen-level sent encing 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.” Exerci sing jurisdiction under 28 U.S.C. § 1291, we affirm.
I Border patrol agents stoppe d Antonio De La Cruz-Garci a just north of the United States-Mexico border on De cember 5, 2007. He admitted that he was a citizen of Mexico and was in the United States illegally. Immi gration 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 a lien in violation of 8 U.S.C. § 1326(a) a nd (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 conv icted 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 “Se xual Assault/Child – Atte mpted” in 2006 in

1 Unless otherwise noted, all Guidelines cita tions refer to the 2007 version of the Guidelines, which were in effect when De La Cruz-Garcia committed the offense of conviction.-3- Colorado state court. Accord ing to the PSR, De La Cruz-Garcia had been staying with a Colorado family because he was homeless. One member of the fam ily, an eight-year-old girl, awoke to De La Cruz-Garcia touching he r 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. St at. § 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 sevent y-one months. However, the di strict court granted De La Cruz-Garcia a downward departur e 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 applicati on of the Guidelines, we review its legal conclusions de novo and its factual finding s for clear error. United States v. Wolfe , 435 F.3d 1289, 1295 (10th Cir. 2006). De La Cr uz-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-4- instead of the version in effect when the o ffense 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 re late to the manner in which the district court determined that the Colo rado statute criminalizes a “c rime of violence.” However, if the district court’s ultimate conclusion thatDe La Cruz-Garcia was subject to a sixteenlevel enhancement was correct, any asserted proc edural 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 substa ntive 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-Gar cia’s conviction and that the court used the 2008 version of the Guidelines, despite our do ubts 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 Ci r. 1995). Plain error is: “(1) error, (2) that is plain, which (3) affe cts substantial rights, and which (4) seriously affects the fairness, integrity, or public reputa tion of judicial proceedings.” United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1222 (10th Cir. 2 008). 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.-5- B U.S.S.G. § 2L1.2(b)(1) imposes a sixteen -level enhancement “[i]f the defendant previously was deported . . . after . . . a convi ction 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, bur glary 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 pr ior 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 ra ther than examining the partic ular 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 provisi on 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, ame nd. 722, at 302-03 (November 1, 2009).-6- actor is at least four years older than th e victim.” Colo. Rev. Stat. § 18-3-405(1). 4 The phrase “sexual contact” is defined as: the knowing touching of the victim’s in timate 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 se xual arousal, gratification, or abuse. Colo. Rev. Stat. § 18-3-401(4). We hold that the Colorado statute crim inalizes 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 Guide lines do not define the phrase “sexual abuse of a minor,” “we look to th e ‘ordinary, contemporary, and common’ meanings of the words used.” Romero-Hernandez , 505 F.3d at 1087 (quotin g 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 di stinguish between an attempt and a successful commission for purposes of determining whethe r 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 Colo rado 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 Guide lines. Romero-Hernandez , 50 F.3d at 1087.-7- 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, gr atification, or abuse, ” Colo. Rev. Stat. § 18- 3-401(4), it is limited to “sexual” acts. Lastly, “abuse” is defined as to “take unfa ir or undue advantag e 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 in timate 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 se xual arousal, gratification, or abuse. Colo. Rev. Stat. § 18-3-401(4). Because the “victim” must be a minor, the abovedescribed contact is necessarily abusive. Wh en 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 act ivity with a victim inherently involves taking unfair or undue advantage of the victim. Further, such contact is almost certain to-8- injure, hurt, or damage the minor psychologically, if not physically. De La Cruz-Garcia argues that the Colo rado 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 stra ined. 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 vi ctim 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 immedi ate 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 w ith knowledge of the child’s presence, thereby wrongly and improp erly 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 form s 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 mi ss the essential nature of “sexual abuse.”-9- Id. at 605. Accordingly, we hold that even under the broadest in terpretation of Colo. Rev. Stat. § 18-3-405(1), the statute criminalizes on ly acts that constitute “sexual abuse of a minor” and thus “crime[s] of violence” for purp oses of U.S.S.G. § 2L 1.2(b)(1)(A)(ii). In so holding, we join several ci rcuits that have construed si milar 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 a buse of a minor or stat utory 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. 19 99) (“[C]onviction under Californi a Penal Code Section 288(a) [for committing a lewd or lascivious act w ith a minor] qualified as a conviction for ‘sexual abuse of a minor’ . . . .”).
III Because the district court properly imposed a sixteen-le vel enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), De La Cruz-Garcia’s sentence is AFFIRMED

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