IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50788

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

OSCAR RENE MARTINEZ, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-348-1

Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Oscar Rene Martinez (“Martinez”) appeals his 

sentence of 41 months of imprisonment based on his conviction for unlawful 

reentry into the United States in violation of 8 U.S.C. § 1326. Martinez argues 

that the district court committed plain error in applying a 16-level 

enhancement pursuant to United States Sentencing Guidelines Manual 

(“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii) for Martinez’s alleged commission of a “crime 

of violence” based on his prior conviction under New Jersey law for fourth 

* 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

December 15, 2014

Lyle W. Cayce

Clerk

 

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degree lewdness, N.J. State. Ann. § 2C:14-4b(1). For the following reasons, we 

VACATE Martinez’s sentence and REMAND for RESENTENCING.

BACKGROUND

In 2013, Martinez pleaded guilty to one count of illegal reentry in 

violation of 8 U.S.C. § 1326 without the benefit of a plea agreement. The 

presentence investigation report (“PSR”) calculated a base offense level of eight 

pursuant to U.S.S.G. § 2L1.2(a). It then recommended adding a 16-level 

increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on its determination that 

Martinez’s New Jersey lewdness conviction qualified as a “crime of violence.” 

Finally, the PSR recommended subtracting three levels for acceptance of

responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense 

level of twenty-one. This total offense level, coupled with a criminal history 

category of III, resulted in a recommended range of imprisonment of 46 to 57

months.

At sentencing, Martinez argued that his criminal history category should 

be adjusted downward because it was premised in part on a 2010 weapons 

possession offense, which arose from an incident that had escalated as a result 

of Martinez’s inability to understand English. Based on this explanation, the 

district court adjusted Martinez’s criminal history category from III to II.

In addition, Martinez objected to the 16-level crime of violence 

enhancement recommended in the PSR. That objection, however, was made 

off-the-record and the specific basis of Martinez’s objection is therefore unclear. 

When the parties went back on the record, Martinez’s counsel stated that a 

petition for writ of certiorari had been filed in the Supreme Court regarding a 

prior en banc case of this Court, United States v. Rodriguez, 711 F.3d 541 (5th 

Cir.) (en banc), cert denied, 134 S. Ct. 512 (2013) and that “assuming the 

Supreme Court does address that, we would object in hope of preserving that 

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objection for future relief.” No further details regarding the grounds of 

Martinez’s objection were provided. 

In resolving Martinez’s objection, the district court stated, “the 16-level 

increase . . . will stand for right now . . . unless the Supreme Court rules 

otherwise.” The district court then calculated Martinez’s Guidelines range as 

falling between 41 to 51 months and sentenced Martinez to the lowest term of 

imprisonment within that range. This appeal followed. 

STANDARD OF REVIEW

Ordinarily, this Court reviews “the district court’s application and 

interpretation of the sentencing guidelines de novo and its factual findings for 

clear error.” United States v. Gonzales–Terrazas, 529 F.3d 293, 296 (5th Cir. 

2008). Under this standard, the issue of whether the district court properly 

characterized a prior criminal conviction as a “crime of violence” under the 

Sentencing Guidelines presents a legal question subject to de novo review. 

Rodriguez, 711 F.3d at 548; United States v. Olalde–Hernandez, 630 F.3d 372, 

373 (5th Cir. 2011). However, whereas here a criminal “defendant has failed 

to make his objection to the guidelines calculation sufficiently clear, the issue 

is considered forfeited,” and the Court reviews for plain error. See United 

States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). The parties 

agree that plain error review is appropriate in this case.

Under plain error review, this Court may reverse a trial court’s decision 

if the following requirements are met: “(1) there was an error; (2) the error was 

clear and obvious; and (3) the error affected the defendant’s substantial rights.” 

United States v. Medina–Torres, 703 F.3d 770, 774 (5th Cir. 2012) (per curiam) 

(internal quotations omitted); accord United States v. Gracia–Cantu, 302 F.3d 

308, 310 (5th Cir. 2002). If these three elements are satisfied, the Court may 

exercise its discretion to remedy the error if it “seriously affects the fairness, 

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integrity, or public reputation of judicial proceedings.” Medina–Torres, 703 

F.3d at 774 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

DISCUSSION

Applying the first prong of the plain error analysis, we first determine 

whether there was an error. A defendant convicted of illegal reentry is subject 

to a substantial Guidelines enhancement if he was convicted of a “crime of 

violence” prior to his deportation. Rodriguez, 711. F.3d at 548 (citing U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii)); United States v. Izaguirre–Flores, 405 F.3d 270, 272 (5th 

Cir. 2005). The application notes to § 2L1.2 of the Guidelines defines “crime of 

violence” by reference to a list of enumerated generic offenses, which includes 

amongst them “sexual abuse of a minor.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n. 

1(B)(iii). This appeal concerns whether Martinez’s conviction for fourth degree 

lewdness fits within the definition of “sexual abuse of a minor.”

To determine whether a defendant’s prior conviction under state law 

qualifies as a crime of violence under the Guidelines, we use the categorical 

approach articulated by the Supreme Court in Taylor v. United States, 495 U.S. 

575 (1990). Rodriguez, 711. F.3d at 549; Gonzales–Terrazas, 529 F.3d at 296-

97. Under this approach, our analysis is grounded in the statute of conviction 

“not the defendant’s underlying conduct.” United States v. Calderon–Pena, 383 

F.3d 254, 257 (5th Cir. 2004) (en banc) (per curiam). “Because we look to the 

statute of conviction rather than the facts of the crime, ‘we must presume that 

the conviction rested upon nothing more than the least of the acts 

criminalized.’” United States v. Amaya, 576 F. App’x 416, 419 (5th Cir. 2014)

(per curiam) (quoting Moncrieffe v. Holder, ___U.S. ___, 133 S.Ct. 1678, 1684 

(2013)); see also United States v. Carrasco–Tercero, 745 F.3d 192, 198 (5th Cir. 

2014) (“[T]he categorical approach assumes that the defendant committed the 

least culpable act to satisfy the count of conviction . . . .”).

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Pursuant to this Court’s en banc decision in United States v. Rodriguez, 

where the Guidelines enhancement turns on the meaning of an offense 

category that is not defined at common law, as is the case here, we “determine[] 

the ‘generic, contemporary meaning’” of the triggering offense for purposes of 

the analysis. Rodriguez, 711. F.3d at 552. In making this determination, we 

employ a “plain-language approach, relying on the common meaning of terms 

as stated in legal and other well-accepted dictionaries.” Id. at 550, 552; see 

also Izaguirre–Flores, 405 F.3d at 275; United States v. Zavala–Sustaita, 214 

F.3d 601, 604-05 (5th Cir. 2000). Once we determine the meaning of the 

relevant offense category, we “look to the elements of the state statute of 

conviction and evaluate whether those elements comport” with the generic 

meaning of the offense. Rodriguez, 711 F.3d at 552-53. “If the state definition 

. . . is broader than the generic definition [of the offense category], a conviction 

under that state’s law cannot serve as a predicate for the crime of violence 

enhancement.” United States v. Garcia–Figueroa, 753 F.3d 179, 187 (5th Cir. 

2014) (internal quotations omitted). 

“To demonstrate that the state definition is broader than the generic 

definition [of the offense category], the defendant must show more than a ‘mere 

theoretical possibility’ that the statute of conviction criminalizes conduct that 

does not fall within” the meaning of the Guidelines offense. Id. (internal 

quotations omitted). Rather, pursuant to the Supreme Court’s decision in 

Gonzales v. Duenas–Alvarez a defendant must show a “realistic probability . . . 

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

definition of [the] crime.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 

(2007). “To show a realistic probability, an offender 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 manner for which he argues.” United States v. Teran–Salas, 767 

F.3d 453, 460 (5th Cir. 2014) (alterations and internal quotations omitted); see 

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also United States v. Ortiz–Gomez, 562 F.3d 683, 687 (5th Cir. 2009); United 

States v. Moreno–Florean, 542 F.3d 445, 456 (5th Cir. 2008).

Martinez’s lewdness conviction was the result of his plea of guilty to N.J. 

Stat. Ann. § 2C:14-4b(1), which provides:

b. A person commits a crime of the fourth degree if:

(1) He exposes his intimate parts for the purpose of arousing or 

gratifying the sexual desire of the actor or of any other person 

under circumstances where the actor knows or reasonably expects 

he is likely to be observed by a child who is less than 13 years of 

age where the actor is at least four years older than the child.

He argues that this statute does not qualify as a crime of violence because it 

criminalizes conduct that does not fall within the generic meaning of “sexual 

abuse of a minor.” Specifically, Martinez contends that the generic, 

contemporary meaning of the term “abuse,” requires a minor to be actually, or 

at least constructively, present for the lewd act and to experience harm. 

According to Martinez, the statute under which he was convicted criminalizes 

conduct that falls outside this definition. We agree.

We have repeatedly interpreted the term “abuse” to include a component 

of harm to a minor. See United States v. Duron–Rosales, No. 13-41093, 2014 

WL 6357180, at *2 (Nov. 17, 2014) (per curiam) (unpublished) (“Conduct is 

‘abusive’ if it ‘involves taking undue or unfair advantage of the minor and 

causing such minor psychological—if not physical—harm.’”) (quoting 

Izaguirre–Flores, 405 F.3d at 275-76); Zavala–Sustaita, 214 F.3d at 604-05 

(abuse involves “wrongly and improperly using the minor and thereby harming 

the minor”);1 see also Olalde-Hernandez, 630 F.3d at 375; United States v. 

Balderas–Rubio, 499 F.3d 470 (5th Cir. 2007); United States v. Najera–Nejera, 

1 Although the Zavala-Sustaita Court construed the phrase “sexual abuse of a minor” 

as it is used in 8 U.S.C. § 1101(a)(43) rather than in U.S.S.G. § 2L1.2, we have held that the 

“generic meaning” of the phrase is the same in both contexts. United States v. Najera-Nejera, 

519 F.3d 509, 512 n.2 (5th Cir. 2008).

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519 F.3d 509, 512 (5th Cir. 2008). On its face, the New Jersey statute under 

which Martinez was convicted criminalizes behavior that does not include such 

harm. An individual may be convicted of the offense if he commits lewd acts 

when he is only “likely to be observed by a child.” N.J. Stat. Ann. § 2C:14-4b(1). 

Put another way, the fourth degree lewdness statute may be violated where no 

actual minor is present and where no actual minor is harmed.

New Jersey case law confirms that there is a “realistic possibility” that 

the statute is applied consistent with its plain language. See e.g., State v. 

Zeidell, 713 A.2d 401, 409 (N.J. 1998) (explaining that the sine qua non of 

lewdness is the “subjective belief by the actor that he or she is being viewed”) 

(emphasis added)); State v. Breitweiser, 861 A.2d 176, 185 (N.J. Super. Ct. App. 

Div. 2004) ([T]o sustain a conviction for fourth-degree lewdness . . . “[i]t is 

sufficient that the evidence show . . . that . . . the actor knows or reasonably 

expects he is likely to be observed . . . . Actual victim observation is not 

required.”) (internal quotations omitted)). Indeed, one New Jersey appellate 

court upheld a conviction by construing the statute in the precise manner that 

Martinez indicates. See State v. Roman, 2012 WL 1123542 (N.J. Super. Ct. 

App. Div. April 5, 2012) (per curiam). In that case, the court upheld a 

defendant’s conviction under § 2C:14-4b(1) where it was undisputed that no 

child was actually present during the defendant’s lewd activity. See id. at *4. 

In doing so, the court relied on the New Jersey Supreme Court’s statement in 

Zeidell, that the statute required only that “the actor . . . expose . . . himself or 

herself knowing or reasonably expecting that an underage child will observe 

the conduct.” Id. at *3 (quoting Zeidell, 713 A.2d at 408) (alterations and 

quotation marks omitted). No victim’s actual observation was required. Id. at 

*4.

Based on the plain language of the statute and New Jersey case law

interpreting it, we find that there is a realistic probability that Martinez’s 

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lewdness conviction does not fall within the generic meaning of “sexual abuse 

of a minor.” For this reason the application of the sixteen-level “crime of 

violence” enhancement to his sentence was error.

We also find that this error was plain in the sense that it was clear. As 

discussed, our precedent interpreting the term “abuse” to include a component 

of harm to a minor is well established, and one need not look much further 

than the face of the New Jersey statute itself to conclude that this component 

is absent. See N.J. Stat. Ann. § 2C:14-4b(1). At oral argument, the government

suggested that the error in this case was not clear because the only New Jersey 

case to squarely determine that a minor need not actually exist for a violation

to occur is the unpublished New Jersey appellate court decision State v. 

Roman. According to the government, an unpublished decision does not 

sufficiently demonstrate the realistic possibility requirement for purposes of 

plain error.

However, we have found the realistic possibility requirement met 

without the benefit of a specific state decision on point in circumstances where 

the plain language of the statute clearly criminalized conduct outside of the 

Guidelines offense. See United States v. Ortiz–Gomez, 562 F.3d 683, 685-87

(5th Cir. 2009) (holding that “it is apparent from its face” that a Pennsylvania 

arson statute lacked the element of a “use of force” and there was therefore “a 

realistic probability that Pennsylvania courts would” interpret the defendant’s 

statute of conviction to apply to conduct that was not a crime of violence

(footnote omitted)). Further, we have found the clear and obvious element of

plain error satisfied, albeit in a different sentencing context, based on the clear 

language of the defendant’s statute of conviction. See United States v. Maturin, 

488 F.3d 657, 663 (5th Cir. 2007) (“While this court has never expressly 

determined that the crime of concealing assets in a bankruptcy proceeding does 

not have a scheme, conspiracy, or pattern of criminal activity as an element,

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. . . it is indisputably clear from a reading of the plain statutory language . . . . 

We therefore find that the district court’s error was plain.”). Thus, where “it is 

apparent from its face” that the statute of conviction applies to conduct outside 

of the generic Guidelines definition, it is hard to understand how the error 

cannot be clear. See Ortiz–Gomez, 562 F.3d at 685.

Nor is it apparent why an unpublished state decision—which 

demonstrates that a state has in fact applied a statute in a manner broader 

than the generic definition of the Guidelines offense—is insufficient to 

demonstrate a realistic possibility that the statute would be applied in this 

overbroad manner. We have previously considered unpublished state cases in 

conducting the categorical inquiry. See e.g., United States v. Sanchez–Torres, 

136 F. App’x 644, 647 (5th Cir. 2005) (per curiam); United States v. Lee, 310 

F.3d 787, 791 (5th Cir. 2002). This makes good sense. “In determining the 

actual application of a statute, a conviction is a conviction, regardless of the 

manner in which it is reported.” Nicanor–Romero v. Mukasey, 523 F.3d 992, 

1005 (9th Cir. 2008) (discussing the role of unpublished decisions in the 

categorical analysis), overruled on other grounds by Marmolejo–Campos v. 

Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc); see also Leal v. Holder, __ 

F.3d __, 2014 WL 5742137, at *3 (9th Cir. Nov. 6, 2014). Indeed, as the 

Supreme Court has observed, “criminal justice today is for the most part a 

system of pleas,” see Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012), and a 

decision of a state’s appellate court, therefore, is potentially indicative of 

numerous instances in which the state’s prosecuting authority has secured

convictions from conduct that falls outside of the generic definition of a 

Guidelines offense. 

Accordingly, whereas here, it is apparent from its plain language, that a 

statute criminalizes conduct outside what we have repeatedly held is required 

by the definition of a Guidelines offense, and state court decisions interpret the 

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statute consistent with this plain language, the application of the Guidelines 

enhancement to the statute constitutes clear error.

We also find that the error in this case affected Martinez’s substantial 

rights and deem it appropriate to exercise our discretion to correct the error to

maintain the fairness and integrity of the proceeding. “A sentencing error 

affects a defendant’s substantial rights if he can show ‘a reasonable probability 

that but for the district court’s misinterpretation of the Guidelines, he would 

have received a lesser sentence.” United States v. Garcia–Montejo, 570 F. 

App’x 408, 413 (5th Cir. 2014) (per curiam) (alterations omitted) (quoting 

Gonzales–Terrazas, 529 F.3d at 284). The erroneous application of the 

Guidelines enhancement here resulted in a recommended range of 41 to 51 

months. Without the enhancement, Martinez would have faced a range of only 

8 to 14 months.2 We have found sentencing errors that resulted in less of a 

disparity to have affected a defendant’s substantial rights and corrected them 

on plain error review. See Gonzales–Terrazas, 529 F.3d at 298-99; United 

States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (per curiam). 

Further, the district court gave Martinez the lowest possible sentence 

available under the incorrect guidelines range and adjusted his criminal 

history category from III to II. The court’s comments during sentencing

indicate that it would have been willing to revisit Martinez’s sentence if the 

Supreme Court altered our Court’s precedent. Under these circumstances it

seems likely that the district court would have given Martinez a different 

sentence absent the Guidelines misinterpretation.

2 We conduct this analysis assuming that Martinez’s prior weapons possession 

conviction constituted a felony under U.S.S.G. § 2L1.2(b)(1)(D). The record, however, does 

not confirm this assumption and so the 8 to 14 month guidelines range we utilize is for 

purposes of analysis only. If Martinez’s weapons possession conviction was not a felony, the 

resulting guidelines range without the erroneous enhancement would have been 1 to 7 

months. 

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The government argues that we should not exercise our discretion to 

correct the error in this case because the fairness and integrity of the judicial 

proceeding, according to the government, was not implicated by the district 

court’s error. In support of this argument, the government invites us to rely 

on a section of the PSR that references allegations in a criminal information, 

which charged Martinez with a different crime than the lesser offense to which 

he pleaded and was convicted. This criminal information allegedly contained 

allegations that a child may have been present at the time Martinez committed 

his lewd acts. The criminal information is not included in the record and the 

documents that compose the judgment of conviction to the actual offense to 

which Martinez pleaded do not make any reference to these allegations. 

Even when employing a modified categorical analysis, an analysis which 

no party argues should apply to this case, the Supreme Court has instructed 

that a sentencing court is confined to the narrow set of documents that compose 

the record of conviction. See Descamps v. United States, 133 S. Ct. 2276, 2283-

84 (2013); Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. 

at 602. Following this precedent, we have recognized that the record of 

conviction is necessarily limited to “records made or used in adjudicating” the 

defendant’s guilt. Teran–Salas, 767 F.3d at 459; accord United States v. 

Bonilla, 524 F.3d 647, 652 (5th Cir. 2008). These limitations are not mere 

contrivances, they are grounded in “Sixth Amendment concerns . . . and the 

practical difficulties and potential unfairness of a [non-categorical] factual 

approach.” Descamps, 133 S. Ct. at 2287 (internal quotation marks omitted). 

Thus, because the criminal information referenced in the PSR related to a 

different statute under which Martinez neither plead nor was convicted, we

are prohibited from considering it in this case. 

We fail to see how doing that which the Supreme Court and our own 

precedent expressly prohibit will preserve the fairness and integrity of a 

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proceeding that is otherwise affected by error.3 We therefore decline to rely on 

references in the PSR to documents that do not compose the record of 

conviction. Accordingly, we find the final prong of the plain error test satisfied. 

CONCLUSION

For these reasons, we VACATE Martinez’s sentence and REMAND for 

RESENTENCING. 

3 Nor can Martinez be faulted for failing to object to the PSR’s mere reference to the 

criminal information where neither the PSR nor the district court purported to rely on it in 

applying the Guidelines. A defendant cannot be expected to interpose an objection where no 

error has occurred. See United States v. Escalante–Reyes, 689 F.3d 415, 422 (5th Cir. 2012)

(en banc) (explaining that the “contemporaneous objection rule is, in part, intended to prevent 

lawyers from deliberately withholding an objection in an effort to gain another ‘bite at the 

apple’”).

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