IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40438

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

EDUARDO PENALOZA-CARLON,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:

Eduardo Penaloza-Carlon pleaded guilty of having been found unlawfully in the United States after deportation after a felony conviction, and he 

was sentenced, below the advisory guideline range, to twenty-two months of 

imprisonment and three years of supervised release. On appeal, PenalozaCarlon contends that the district court erred in applying the twelve-level 

United States Court of Appeals

Fifth Circuit

FILED

November 28, 2016

Lyle W. Cayce

Clerk

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enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his Oregon 

conviction of rape in the third degree. He contends that the Oregon statute 

sweeps more broadly than the generic definitions of statutory rape, forcible sex 

offense, and sexual abuse of a minor for purposes of the § 2L1.2 crime-ofviolence enhancement.

In the district court, Penaloza-Carlon urged that the § 2L1.2 enhancement did not apply because the Oregon statute lacks an age difference. Thus, 

we review de novo whether that conviction is a crime of violence under § 2L1.2 

on that basis. See United States v. Bonilla, 524 F.3d 647, 651–52 (5th Cir.

2008). Because Penaloza-Carlon did not maintain, in the district court, that 

the conduct proscribed by the Oregon statute is broader than the generic, contemporary meaning of, inter alia, sexual abuse of a minor, we review that point

for plain error. See United States v. Garcia-Perez, 779 F.3d 278, 281 & n.2 (5th 

Cir. 2015).

The Oregon statute defines rape in the third degree as “sexual intercourse with another person under 16 years of age.” OR. REV. STAT.

§ 163.355(1). To determine whether conduct criminalized under a statute 

constitutes “sexual abuse of a minor,” this court examines (1) whether the conduct involved a minor; (2) whether the conduct was “sexual”; and (3) whether 

the conduct constituted “abus[e].” United States v. Puga-Yanez, 829 F.3d 317, 

320–21 (5th Cir. 2016).

The first two prongs are satisfied. First, the Oregon offense requires the 

involvement of a minor because it calls for the victim to be under the age of 

sixteen. Penaloza-Carlon’s argument to the contrary is foreclosed. See United 

States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc). Second, the 

offense is “sexual” in nature because it has “sexual arousal or gratification as 

its purpose.” United States v. Olalde–Hernandez, 630 F.3d 372, 375 (5th Cir. 

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2011). 

Penaloza-Carlon disputes the third element—whether the conduct was 

“abusive.” He relies on decisions of the Ninth Circuit that the Oregon offense 

does not qualify as sexual abuse of a minor because it lacks the abuse element

in that it does not expressly prohibit conduct that causes physical or psychological harm in light of the age of the victim. Those decisions, however, are not 

binding authority in this circuit and are inconsistent with our precedent.1

Penaloza-Carlon therefore has failed to show that the district court committed clear or obvious error by finding that the Oregon conviction was categorically sexual abuse of a minor. See Puckett v. United States, 556 U.S. 129, 

135 (2009). Accordingly, he has not shown that the court erred in applying the 

twelve-level enhancement under § 2L1.2(b)(1)(A)(ii)

AFFIRMED.

 

1 See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010) (holding that other 

circuits’ decisions are persuasive only); Puga-Yanez, 829 F.3d at 322 & n.10 (holding that, 

even though psychological or physical harm to the minor often stems from the defendant’s 

conduct, “harm to the minor is not an element of the generic crime of ‘sexual abuse of a minor’ 

[under § 2L1.2(b)(1)(A)(ii)]”).

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