IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40488

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RAFAEL CABRERA-CANALES,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-2083-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Rafael Cabrera-Canales (“Canales”) pleaded guilty without a written 

plea agreement to illegal reentry after deportation. He appeals his withinguidelines sentence, challenging the sixteen-level enhancement he received for 

a “crime of violence” (“COV”). We AFFIRM.

Following Canales’s guilty plea, a pre-sentence report (PSR) was 

prepared in which a base offense level of eight was assessed pursuant to U.S.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 11, 2014

Lyle W. Cayce

Clerk

 

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SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2(a) (2012). The PSR 

then enhanced that base offense level by sixteen levels pursuant to

§ 2L1.2(b)(1)(A)(ii), on the ground that Canales’s 2006 Connecticut conviction 

under Connecticut General Statutes § 53-21 for “risk of injury to a minor” was 

a COV. The district court concluded that the prior conviction was a COV

because it constituted the enumerated offense of “sexual abuse of a minor.” 

Canales challenges this determination on two grounds: (1) he contends that 

the documentation the Government provided is insufficient to show under 

which subsection of section 53-21 he was convicted; and (2) even if the 

documentation shows that he was convicted under subsection 53-21(a)(2), this 

subsection is “overbroad” such that his conviction does not fit within the 

“generic, contemporary meaning” of the phrase “sexual abuse of a minor.” We 

address each argument in turn.

The PSR relied upon the following documents to establish Canales’s 

conviction: (1) a document entitled “Instructions to Clerk,” which was signed 

by the assistant clerk, reflecting a judgment against Canales for violating 

CONN. GEN. STAT. § 53-21(a)(2) and sentence of two years and one day of 

imprisonment and five years of “special parole”; (2) a “Long Form Criminal 

Information Worksheet,” which was signed by prosecutor, clerk, and the judge, 

reflecting that Canales entered a plea of nolo contendere and was adjudged 

guilty of violating CONN. GEN. STAT. § 53-21(a)(2) and was sentenced to two 

years and one day of imprisonment and five years of special parole; and (3) a 

document entitled “Title, Allegation and Counts,” signed by the Assistant State 

Attorney, reflecting that Canales was charged with risk of injury to a minor, 

in violation of CONN. GEN. STAT. § 53-21 (Count One) and sexual assault, first, 

in violation of CONN. GEN. STAT. § 53a-70 (Count Two). The district court found 

that the Probation Office had secured the equivalent of a judgment in the form 

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of the “Long Form Criminal Information Worksheet,” which reflected that the 

statute of conviction was CONN. GEN. STAT. § 53-21(a)(2).

Canales contends that the Connecticut documents are insufficient to 

show that he was convicted of any specific subsection of section 53-21; he also 

contends that because he pleaded “nolo contendere” rather than “guilty,” these 

documents cannot be used to narrow his offense conduct. Contrary to Canales’s 

assertion, a district court may consider state adjudicative documents to 

determine the proof of existence of the prior conviction. See United States v. 

Neri-Hernandes, 504 F.3d 587, 591–92 (5th Cir. 2007). Further, as the 

challenged documents here were not used to narrow section § 53-21 based upon 

the facts underlying Canales’s offense, Shepard v. United States, 544 U.S. 13 

(2005), does not apply. See 504 F.3d at 591; United States v. Moreno-Florean, 

542 F.3d 445, 449–50 & n.1 (5th Cir. 2008) (using the defendant’s indictment 

and a California abstract of judgment to prove the existence of a prior 

conviction, where the abstract of judgment was not being used to narrow the 

statute of conviction based upon the facts underlying the offense). Rather, they 

were relied upon by the district court to establish of which subsection of CONN.

GEN. STAT. § 53-21 Canales was convicted.1

Under the circumstances of the present case, as in Moreno-Florean, 542 

F.3d at 449–50 & n.1, and Neri-Hernandes, 504 F.3d at 590–92, the state 

adjudicative documents, and especially the Long Form Criminal Information 

Worksheet, which was signed by the trial judge and which the district court 

found to be the equivalent of a judgment, were properly used to determine that 

1 Canales argues that Neri-Hernandes is not good law because it contradicted the 

holding of a prior case, Omari v. Gonzalez, 419 F.3d 303 (5th Cir. 2005). Omari, however, 

involved the use of documents to determine the facts of the offense, while Neri-Hernandes 

involved the use of documents that directly identified the statutory subsection of conviction, 

making the cases distinguishable. Compare Omari, 419 F.3d at 308–09, with NeriHernandes, 504 F.3d at 590–92. 

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Canales pleaded nolo contendere to violating CONN. GEN. STAT. § 53-21(a)(2). 

Thus, the district court’s finding that the adjudicative documents, and 

especially the Long Form Criminal Information Worksheet, reflected the 

statute of conviction as CONN. GEN. STAT. § 53-21(a)(2) was not clearly 

erroneous. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) 

(a district court’s factual findings in sentencing are reviewed for clear error).2

Turning to the question of whether the Connecticut conviction 

constitutes “sexual abuse of a minor,” section 53-21(a)(2) states: “Any person 

who . . . (2) has contact with the intimate parts . . . of a child under the age of 

sixteen years or subjects a child under sixteen years of age to contact with the 

intimate parts of such person, in a sexual and indecent manner likely to impair 

the health or morals of such child . . . [commits an offense].” CONN. GEN. STAT.

ANN. § 53-21(a)(2) (West 2005). In the district court, Canales argued that 

“intimate parts” was not adequately defined and could include the child’s head, 

feet, or hands. The district court overruled this objection, noting “[i]ntimate 

parts [under Connecticut law was] defined as the genitalia area, groin, anus, 

inner thighs, buttocks or breast,” see CONN. GEN. STAT. ANN. § 53a-65 (West 

2005), and that section 53-21(a)(2) included contact with the intimate parts “in 

a sexual and indecent manner likely to impair the health or morals of [a] child,”

see CONN. GEN. STAT. ANN. § 53-21(a)(2). 

On appeal, Canales makes an argument not specifically raised to the 

district court:3 that contact with a minor’s “intimate parts” “in a sexual and 

2 Canales’s argument that his plea of nolo contendere does not admit facts is 

irrelevant. The entry of a nolo plea does not affect the result of this case because the relevant 

question under the Guidelines is whether the defendant has a conviction for a COV, not 

whether he has admitted to being guilty of such a crime. See U.S.S.G. § 2L1.2(b)(1)(A).

3 Canales’s written objection was that this was not a “drug trafficking offense.” At 

the sentencing hearing, his counsel explained that this was a mistake and he meant to object 

to the documentation. His counsel further argued: “I have to speak as to what he was really 

4

 

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indecent manner likely to impair the health or morals of such child” is not 

“abuse” within the meaning of “sexual abuse of a minor.” Accordingly, we 

review this contention for plain error. See United States v. Chavez-Hernandez, 

671 F.3d 494, 497 (5th Cir. 2012). 

We recently examined how to approach the definition of “sexual abuse of 

a minor.” See United States v. Rodriguez, 711 F.3d 541 (5th Cir.) (en banc), 

cert. denied, 134 S. Ct. 512 (2013). We clarified the method used to determine 

“the ‘generic, contemporary meaning’ of non-common-law offense categories 

enumerated in the federal sentencing enhancements” and adopted a “plainmeaning” approach. Id. at 552. Under that approach, this court first must 

identify the enumerated offense categories that trigger the sentencing 

enhancement and determine whether the meaning of the offense categories is 

apparent from the language of the relevant enhancement or its applicable 

commentary. Id. at 552, 557–58. If the meaning is unclear, this court must 

assess whether the offense categories are defined under common law. Id. at 

552, 558–59. If the offense categories are not defined under common law, this 

court must derive their “‘generic, contemporary meaning’” from their “common 

usage as stated in legal and other well-accepted dictionaries.” Id. at 552, 559–

61. Finally, this court must look to the state statute of conviction and assess 

whether “those elements comport with the generic meaning of the enumerated 

offense category.” Id. at 552–53, 562.

We have previously held that the term “abuse” “involve[s] either physical

or psychological harm to the minor.” United States v. Izaguirre-Flores, 405 

F.3d 270, 275 (5th Cir. 2005); see also Rodriguez, 711 F.3d at 562. We conclude 

charged with in this case. I also have a serious question as to the side of it as being brought 

to us. What are intimate parts? You know . . . that could mean the head, the feet[], the hands 

of a child? So . . . I wanted to make clear that I’m objecting to this enhancement based on 

what we have here.”

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that it is not error, plain or otherwise, to determine that touching the “intimate 

parts” of a minor “in a sexual and indecent manner likely to impair the health 

or morals of such child” involves at least “psychological harm,” sufficient to 

constitute “abuse” within the meaning of the Guidelines.4 See United States v. 

Chacon, 742 F.3d 219 (5th Cir. 2014) (holding that “intentional touching [by or 

to a minor] of the victim’s or actor’s genital, anal, or other intimate area for 

sexual arousal or gratification” constitutes “sexual abuse of a minor” (quoting 

MD. CODE ANN., CRIM. LAW §§ 3-301(a)(3), 3-307(f) (2002))); cf. State v. Thomas 

W., 974 A.2d 19, 28 (Conn. App. Ct. 2009) (“The general purpose of § 53-21 is 

to protect the physical and psychological well-being of children from the 

potentially harmful conduct of adults.” (citation and internal quotation marks 

omitted)).

AFFIRMED.

4 As Canales concedes, his argument that an age-differential requirement is 

necessary for “sexual abuse of a minor” is foreclosed. Rodriguez, 711 F.3d at 562 n.28.

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