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

__________________________ No. 05-50943

__________________________ UNITED STATES OF AMERICA, Plaint iff - Appellee,
versus BENIGNO RAMOS-SANCHEZ, also known as Beningo Ramos-Sanchez, Defendant - Appellant.

___________________________________________________ Appeal from the United States District Court fo r the Western District of Texas

___________________________________________________ Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: Defendant-Appellant Benigno Ramos-Sanchez appeals the district co urt’s j udgment that indecent solicitation of a child in vio lat io n of K AN . S TAT . ANN . § 21-3510(a)(1) constitutes “sexual abuse of a mino r” fo r purposes of the “crime of vio lence” sentencing enhancement under United States Sentencing Guidelines § 2L1.2. We affirm. I. FACTS AND PROCEEDINGS On July 2, 2003, Ram

os-Sanchez, a Mexican citizen, pleaded no contest to indecent sol icit ation of a child in vio lat io n of K AN . S TAT . ANN . § 21-3510(a)(1) and was sente nced to 24
mo nt hs of probation. The statute prohi bit s “[e]nticing or soliciting a child 14 or more years of age2

but less than 16 years of age to com mit or to submit to an unlawful sexual act.” His probation was subsequently revoked, and he was sentenced to 12 mo nt hs of imprisonment. He was removed from the Unit ed 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 was indict ed fo r illegal reentry fo llo wing deportation, in vio lat io n of 8 U.S.C. § 132 6. On March 24, 2005, Ram os-Sanchez pleaded guilty to violating section 1326. The probation office prepared a presentence report (“PSR”) stating th at Ramos-Sanchez’s base offense level was eight and th at his criminal hist ory category was IV, which would have yielded a sentencing range of 10 to 16 mo nt hs. 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 aft er co nviction for a “crime of violence.” Ramos-Sanchez objected to the 16-level increase and asserted th at his Kansas conviction was not fo r a “crime of violence.” The district court overruled the objection and applied the 16-level increase,
as well as a 3-level reduction fo r acceptance of responsibility, leaving Ramos-Sanchez wit h an of fense level of 21 and a sentencing range of 57 to 71 mo nt hs. The district court sentenced Ramos-Sanchez to 60 m onths of imprisonment. Ramos-Sanchez timely appealed his sentence. II. ANALYSIS A. Standard of review The district court’s characterization of Ramos-Sanchez’s prior conviction is a question of law th at we review de novo. U nited States v. Zavala-Sustaita , 214 F.3d 601, 603 (5th Cir. 2000).

B. Discussion1 The district court did not specify which version of the Guidelines Manual it used, but the text

in bo th 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 vio lence” as “any of the fo llo wing: murder, manslaughter, kidnapping, aggravated assault, fo rcible sex of fenses, statutory rape, sexual abuse of a minor . . . or any of fense under federal, state, or lo cal law th at has as an element the use, attem pted use, or th

reatened use of physical fo rce 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 p hrase “sexual abuse of a minor” to include conduct punishable under K A N . S TAT . ANN . § 21-3510(a)(1). Z

avala-Sustaita , 214 F.3d at 603 . In making this determination, we focus on the elements of the Kansas statute rather th an Ramos-Sanchez’s actual of fen se conduct. I

d . (citing Taylor v. United States , 495 U.S. 575, 599–602 (1990)). Because “sexual abuse of a mino r” is a specifically enumerated of fense under section 2L1.2,
we use a “common sense approach” to determ ine whether the state law conviction renders RamosSanchez subject to the enhancement. U nited States v. Izaguirre-Flores , 405 F.3d 270, 274–75 (5th Cir. 2005). This approach requires us to determine whether a violatio n of section 21-3510(a)(1) constitutes “sexual abuse of a mino r” as th at term is understood in it s “o rdinary, contem porary , and
com mo n 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 libert ies wit h 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. G EN . S TAT . § 14-202.1(a)(1), prohibits

“t aking indecent libert ies wit h children if, being 16 years of age or mo re and at least five years older th an the child in question, [the of fender] . . . willfully takes or attem pts to take any immo ral, improper, or indecent libert ies wit h any child of eit her sex under the age of 16 years fo r the purpose of arousing or gratifying sexual desire . . . .” 405 F.3d at 271 n.1.

3 There is no question about the required mino rity of the vict im, since the statute only applies when the object of solicitation is under 16. K AN . S TAT . ANN . § 21-3510(a)(1). 4 While the underlying statutes are quite different from one another, 2 the met hod of analysis employed by t he Izaguirre-Flores panel is helpful. Black’s Law Dictionary defines “sexual abuse” as “[a]n illegal sex act, esp[ecially] one performed against a mino r by an adult.” B LACK ’ S LAW D ICTIONARY 10 (8th ed. 2004). Black’s does not contain a definit io n of “sex act,” though the Oxford English Dictionary defines it as “t he (or an) act of sexual intercourse,” a definition that is clearly not sufficient in the context of sexual abuse of
a mino r. 15 O X FORD E NGLISH D ICTIONARY 108 (2d ed. 19 89). It i s mo re helpful t o look, as the Izaguirre-Flores panel did, at whether a vio lat io n of the statute invo lves abuse th at is sexual in nature. 3 405 F.3d at 275–76; see also Zavala-Sustaita, 214 F.3d at 605 (“[The defendant] argues th at 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 reaso n or in t he structure of [the statutory basis for the enumerated violations of section 2L2.1].”). Since a vio lat io n of the statute requires th at the m ino r be solicited or enticed “to commit or to s ubmit to an unlawful sexual act,” it is clear that a violation of the statute is “sexual” in nature. K AN . S TAT . ANN . § 21-3510(a)(1); see also Izaguirre-Flores , 405 F.3d at 275. In both IzaguirreFlores and Zavala-Sustaita , we held th at an act could be abusive if it inflict ed psychological harm, regardless of whether physical contact was invo lved. I zaguirre-Flores , 405 F.3d at 275–76;4 Notabl y, Kansas, in its civil code, provides fo r recovery of damages suffered as a result of “childho od sexual abuse,” which it defines to include acts that would have violated section 21-3510(a)(1). K

AN . S TAT . 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 th at sol

icit ing or enticing a mino r to perform an illegal sex act, as prohi bit ed by section 21-3510(a)(1) , i s 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 int ercourse between a 15-year-old girl and a 17-year-old boy caused the girl to experience lo wered self-esteem). Ramos-Sanchez asserts th at the behavior punished by the statute does not constitute “sexual abuse” because it includes consensual be havior. We note that section 2L1.2 applies the enhancement in the case of statutory rape, which is of t en in some sense consensual, but is still prohibited by law since “mino rs, because of th eir inexperience, are vulnerable to exploitation and coercion in their sexual int eractions.” Michelle Oberman, R egulating Consensual Sex wi th Minors: Defining a Role for Statutory Rape, 48 B UFF . L. REV . 703, 704 (2000). S ol icit ing or enticing a mino r int o sex takes advantage of the same vulnerabilit ies, can cause psychological harm to the mino r, and is t hus abusive. 4 Ramos-Sanchez also argues th at because the statute does not require th at the perpetrator be
an adult, the statute could conceivably punish a 15-year-old boy fo r sending an email to his 15-yearold girlfriend suggesting th at they have sex. He contends that because such an act does not fit the ordinary, contem

porary , and com

mo n meaning of “sexual abuse,” the statute encompasses conduct th at would not qualify fo r the sentencing enhancement. We have refused to uphold sentencing enhancements based on statutes th at are broader th an the enumerated of fense fo r which the5 The age of consent for unmarried persons in Kansas is 16. K AN . S TAT . ANN . § 21-3503. 6 Ramos-Sanchez’s own case does not provide such an example, as he was 21 at the time of his o ffense. 6 enhancement was applied. See United States v. Sarmiento-Funes , 374 F.3d 336, 345 (5th Cir. 2004). However, the Supreme Court has recentl y clarified t he method of analyzing such arguments. In Gonzales v. Duenas-Alvarez , the Court held: [T]o find th at a state statute creates a crime outside the generic definit io n of a list ed crime in a federal statute requires mo re th an the application of legal imaginat io n to a state statute’s language. It requires a realistic probability, not a theoretical possibilit y, th at the State would apply it s statute to conduc t th at f alls outside the generic definit io n of a crime. To show th at realistic possibilit y, an of fender, of course, may show th at 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 t he special (nongeneric) manner for which he argues. 127 S. Ct. 815, 822 (2007). Setting aside whether Ramos-Sanchez’s example do es indeed f all outside of the generic definit io n, we hold th at he has failed to show a realistic probability th at Kansas would in fact punish conduct of the ty pe he describes. Ramos-Sanchez cites Snelling, in which a 17- year-old boy was convicted under section 21-3510(a)(1) fo r having consensual sex wit h a 15-year-old girl, as an example of conduct th at does not constitute “sexual abuse.” 975 P.2d at 260–61. However, he point s to no example in which both the perpetrator and the vict im were belo w the age of consent at the time the of fense was com

mit ted. 5 Though it is theoretically possible that Kansas might punish such an act, Ramos-Sanchez point s to n o evidence of the realistic probability of such
a prosecution. 6 We thus hold that a violation of K A N . S TA T . A NN . § 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. § 13267

Ramos-Sanchez asserts th at his sentence was unconstitutional because the indict ment did not specifically allege the elements necessary fo r a conviction under 8 U.S.C. § 1326(b)(2 ), which he asserts is a separate of

fense from section 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 fo llo w. Thus, this argument has no merit. III. CONCLUSION For the preceding reasons, we AFFIRM the judgment of the district court.