United States Court of Appeals

Fifth Circuit

FILED

April 2, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

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No. 05-50943

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BENIGNO RAMOS-SANCHEZ, also known as Beningo Ramos-Sanchez,

Defendant - Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Defendant-Appellant Benigno Ramos-Sanchez appeals the district court’s judgment that

indecent solicitation of a child in violation of KAN. STAT. ANN. § 21-3510(a)(1) constitutes “sexual

abuse of a minor” for purposes of the “crime of violence” sentencing enhancement under United

States Sentencing Guidelines § 2L1.2. We affirm.

I. FACTS AND PROCEEDINGS

On July 2, 2003, Ramos-Sanchez, a Mexican citizen, pleaded no contest to indecent

solicitation of a child in violation of KAN. STAT. ANN. § 21-3510(a)(1) and was sentenced to 24

months of probation. The statute prohibits “[e]nticing or soliciting a child 14 or more years of age
2

but less than 16 years of age to commit or to submit to an unlawful sexual act.” His probation was

subsequently revoked, and he was sentenced to 12 months of imprisonment. He was removed from

the United States on December 10, 2004. Just four days later, U.S. Customs and Border Protection

agents arrested Ramos-Sanchez near El Paso, Texas. 

Ramos-Sanchez wasindicted forillegalreentryfollowing deportation, in violation of 8 U.S.C.

§ 1326. On March 24, 2005, Ramos-Sanchez pleaded guilty to violating section 1326. The

probation office prepared a presentence report (“PSR”) stating that Ramos-Sanchez’s base offense

level was eight and that his criminal history category wasIV, which would have yielded a sentencing

range of 10 to 16 months. The PSR recommended that Ramos-Sanchez’s base offense level be

increased by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides an enhancement when

the illegally reentering alien was previously deported after conviction for a “crime of violence.”

Ramos-Sanchez objected to the 16-level increase and asserted that his Kansas conviction was not for

a “crime of violence.” The district court overruled the objection and applied the 16-level increase,

as well as a 3-levelreduction for acceptance ofresponsibility, leaving Ramos-Sanchez with an offense

level of 21 and a sentencing range of 57 to 71 months. The district court sentenced Ramos-Sanchez

to 60 months of imprisonment. Ramos-Sanchez timely appealed his sentence.

II. ANALYSIS

A. Standard of review

The district court’s characterization ofRamos-Sanchez’s prior conviction is a question oflaw

that we review de novo. United States v. Zavala-Sustaita, 214 F.3d 601, 603 (5th Cir. 2000).

B. Discussion
1 The district court did not specifywhich version ofthe Guidelines Manualit used, but the text

in both the 2004 and 2005 versions is identical.

3

(1) Enhancement under section 2L1.2

The application note to section 2L1.2 defines a “crime of violence” as “any of the following:

murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual

abuse of a minor . . . 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.”1 U.S.S.G. §

2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii) (emphasis added). The enhancement applies if Congress intended

the phrase “sexual abuse of a minor” to include conduct punishable under KAN. STAT. ANN. §

21-3510(a)(1). Zavala-Sustaita, 214 F.3d at 603. In making this determination, we focus on the

elements of the Kansas statute rather than Ramos-Sanchez’s actual offense conduct. Id. (citing

Taylor v. United States, 495 U.S. 575, 599–602 (1990)).

Because “sexual abuse of a minor” is a specifically enumerated offense under section 2L1.2,

we use a “common sense approach” to determine whether the state law conviction renders RamosSanchez subject to the enhancement. United States v. Izaguirre-Flores, 405 F.3d 270, 274–75 (5th

Cir. 2005). This approach requires us to determine whether a violation of section 21-3510(a)(1)

constitutes “sexual abuse of a minor” as that term is understood in its “ordinary, contemporary, and

common meaning.” Zavala-Sustaita, 214 F.3d at 604 (internal quotation omitted).

As both parties recognize, this case demands an analytic approach similar to that employed

in Izaguirre-Flores, in which this court held that a violation of a North Carolina statute prohibiting

“indecent liberties with a child” constituted “sexual abuse of a minor.” 405 F.3d at 275–76, 278.
2 The statute at issue in Izaguirre-Flores, N.C. GEN. STAT. § 14-202.1(a)(1), prohibits

“taking indecent liberties with children if, being 16 years of age or more and at least five years older

than the child in question, [the offender] . . . willfully takes or attempts to take any immoral,

improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose

of arousing or gratifying sexual desire . . . .” 405 F.3d at 271 n.1.

3 There is no question about the required minority of the victim, since the statute only applies

when the object of solicitation is under 16. KAN. STAT. ANN. § 21-3510(a)(1).

4

While the underlying statutes are quite different from one another,2the method of analysis employed

by the Izaguirre-Flores panel is helpful.

Black’s Law Dictionary defines “sexual abuse” as “[a]n illegal sex act, esp[ecially] one

performed against a minor by an adult.” BLACK’SLAW DICTIONARY 10 (8th ed. 2004). Black’s does

not contain a definition of “sex act,” though the Oxford English Dictionary defines it as “the (or an)

act of sexual intercourse,” a definition that is clearly not sufficient in the context of sexual abuse of

a minor. 15 OXFORD ENGLISH DICTIONARY 108 (2d ed. 1989). It is more helpful to look, as the

Izaguirre-Flores panel did, at whether a violation of the statute involves abuse that is sexual in

nature.3405 F.3d at 275–76; see also Zavala-Sustaita, 214 F.3d at 605 (“[The defendant] argues

that the phrase ‘sexual abuse’ . . . requires more than just some kind of ‘abuse’ which is ‘sexual’ in

nature. We conclude that any narrower definition of the phrase lacks support in reason or in the

structure of [the statutory basis for the enumerated violations of section 2L2.1].”). 

Since a violation of the statute requires that the minor be solicited or enticed “to commit or

to submit to an unlawful sexual act,” it is clear that a violation of the statute is “sexual” in nature.

KAN. STAT. ANN. § 21-3510(a)(1); see also Izaguirre-Flores, 405 F.3d at 275. In both IzaguirreFlores and Zavala-Sustaita, we held that an act could be abusive if it inflicted psychological harm,

regardless of whether physical contact was involved. Izaguirre-Flores, 405 F.3d at 275–76;
4 Notably, Kansas, in its civil code, provides for recovery of damages suffered as a result of

“childhood sexual abuse,” which it defines to include acts that would have violated section

21-3510(a)(1). KAN. STAT. ANN. § 60-523(b)(2)(E).

5

Zavala-Sustaita, 214 F.3d at 605 (stating that psychological harm could be caused by exposing

oneself without touching the victim). 

We hold that soliciting or enticing a minor to perform an illegal sex act, as prohibited by

section 21-3510(a)(1), is also abusive because of the psychological harm it can cause, even if any

resulting sex is consensual. See, e.g., State v. Snelling, 975 P.2d 259, 261 (Kan. 1999) (consensual

intercourse between a 15-year-old girl and a 17-year-old boy caused the girl to experience lowered

self-esteem). Ramos-Sanchez asserts that the behavior punished by the statute does not constitute

“sexual abuse” because it includes consensual behavior. We note that section 2L1.2 applies the

enhancement in the case of statutory rape, which is often in some sense consensual, but is still

prohibited by law since “minors, because of their inexperience, are vulnerable to exploitation and

coercion in their sexual interactions.” Michelle Oberman, Regulating Consensual Sex with Minors:

Defining a Role for Statutory Rape, 48BUFF.L.REV. 703, 704(2000). Soliciting or enticing a minor

into sex takes advantage of the same vulnerabilities, can cause psychological harm to the minor, and

is thus abusive.4

Ramos-Sanchez also argues that because the statute does not require that the perpetrator be

an adult, the statute could conceivably punish a 15-year-old boy for sending an email to his 15-yearold girlfriend suggesting that they have sex. He contends that because such an act does not fit the

ordinary, contemporary, and common meaning of “sexual abuse,” the statute encompasses conduct

that would not qualify for the sentencing enhancement. We have refused to uphold sentencing

enhancements based on statutes that are broader than the enumerated offense for which the
5 The age of consent for unmarried persons in Kansas is 16. KAN. STAT. ANN. § 21-3503.

6 Ramos-Sanchez’s own case does not provide such an example, as he was 21 at the time of

his offense.

6

enhancement was applied. See United States v. Sarmiento-Funes, 374 F.3d 336, 345 (5thCir. 2004).

However, the Supreme Court has recently clarified the method of analyzing such arguments. In

Gonzales v. Duenas-Alvarez, the Court held: 

[T]o find that a state statute creates a crime outside the generic definition of a listed

crime in a federal statute requires more than the application of legal imagination to a

state statute’slanguage. It requires a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that falls outside the generic

definition of a crime. To show that realistic possibility, an offender, of course, may

show that the statute was so applied in his own case. But he must at least point to his

own case or other cases in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.

127 S. Ct. 815, 822 (2007). Setting aside whether Ramos-Sanchez’s example does indeed fall

outside of the generic definition, we hold that he hasfailed to show a realistic probability that Kansas

would in fact punish conduct of the type he describes. Ramos-Sanchez cites Snelling, in which a 17-

year-old boywas convicted undersection 21-3510(a)(1) for having consensualsexwith a 15-year-old

girl, as an example of conduct that does not constitute “sexual abuse.” 975 P.2d at 260–61.

However, he points to no example in which both the perpetrator and the victim were below the age

of consent at the time the offense was committed.5 Though it is theoretically possible that Kansas

might punish such an act, Ramos-Sanchez points to no evidence of the realistic probability of such

a prosecution.6 We thus hold that a violation of KAN. STAT. ANN. § 21-3510(a)(1) constitutes

“sexual abuse of a minor” for the purposes of the sentencing enhancement in U.S.S.G. § 2L1.2.

(2) Unconstitutionality of 8 U.S.C. § 1326
7

Ramos-Sanchez assertsthat hissentence was unconstitutional because the indictment did not

specifically allege the elements necessary for a conviction under 8 U.S.C. § 1326(b)(2), which he

assertsis a separate offense fromsection 1326(a). He concedes that the Supreme Court rejected this

argument in Almendarez-Torres v. United States, 523 U.S. 224 (1998), which we are obligated to

follow. Thus, this argument has no merit.

III. CONCLUSION

For the preceding reasons, we AFFIRM the judgment of the district court.