NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
APOLINAR FIGUEROA

- VARGAS,

Defendant

- Appellant. No. 19

- 50244
D.C. No. 3:18

- cr - 03171

- MMA

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Argued and Submitted August 13, 2020 Pasadena, California
Before: WARDLAW and VANDYKE, Circuit Judges, and CHOE

- GROVES, * * Judge. Apolinar Figueroa

- Vargas ( Figueroa ) appeals his conviction by jury trial for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326,
and the district court’s denial of his mot ion to dismiss the indictment pursuant to 8

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Jennifer Choe

- Groves, Judge for the United States Court of International Trade, sitting by designation. 

# FILED

OCT 21 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

U.S.C. § 1326(d) . We have jurisdiction under 28 U.S.C. § 1291. We affirm.
“We review de novo a claim that a defect in a prior removal proceeding precludes reliance on the final removal order in a subsequent § 1326 proceeding.” United States v. Reyes

- Bonilla , 671 F.3d 1036, 104 2 (9th Cir. 2012). Such a claim require s the defendant to show that , among other things , “ the removal order was fundamentally unfair

. ” United States v. Valdiv i a
- Flores , 876 F.3d 1201, 1205 (9th
Cir. 2017). A removal order based on a prior conviction for an “aggravated felony ” is “fundamentally unfair” if that conviction was not in fact an aggravated felony

. I d. at 12 06 ; see also id. at 1210.
H ere , we employ the categorical approach and “ compare the elements of the
state offense with the elements of the federal generic offense of sexual abuse of a
minor.” Mero v. Barr , 957 F.3d 1021, 1022 (9th Cir. 2020) (cleaned up)

. T he applicable federal gener ic definition of “sexual abuse of a minor” encompasses
statutes of conviction that prohibit “(1) sexual conduct, (2) with a minor, (3) that
constitutes abuse.” Id. at 1023. Though on its face, Texas Penal Code § 22.021 (2003) reaches conduct beyond t his generic definition , that statute is divisible

. Section 22.021 defines multiple aggravated sexual assault crimes through distinct combination s of the
alternative elements listed in § 22.021(a)(1) (the conduct elements) and § 22.021(a)(2) (the a ggravating elements)

. See Moreno v. State , 413 S.W.3d 119,3

12 8

– 2 9 (Tex. App. 2013); Gonzales v. State , 304 S.W.3d 838, 847

– 49 (T e x. Crim. App. 2010). Subsection 22.021(a)(2)(B)

— which asks whether the victim “ is younger than 14 years old ”

— is “itself an ag gravating element under the statute sufficient to constitute aggravated sexual assault of a child.” Moreno , 413 S.W. 3d at 129; see id. at 128

– 29 (noting th e trial court “instructed the jury that a person commits aggravated sexual assault of a child if he commits sexual assault and the victim is younger than 14 years of age”). Because this statute “lists elements in the alternative, and thereby defines multiple crimes , ” we employ the modified categorical approach

. Mathis v. United
States , 136 S. Ct. 2243, 2249 (2016) (cleaned up). T he judgment from Figueroa’s prior conviction defined his offense as “Agg Sex Asslt Child

- Under 14

. ” Moreover, the Texas indictment accused him of “intentionally and knowingly causing the sexual organ of the victim, a pers on younger than fourteen years of age and not the spouse of the D efendant, to CONTACT [ his ] SEXUAL ORGAN .” His
crime was thus the one defined by the combination of the elements in § 22.021(a)(1)(A)(iii) and § 22.021 (a)(2)(B) , which falls within the federa l generic
definition of sexual abuse of a minor and is an aggravated felony. As a result, Figueroa’s 2001 removal order was not fundamentally unfair , and t he district court correctly denied his motion to dismiss the indictment.
A FFIRMED
.