USA v. Martin Acosta

Filing

UNPUBLISHED OPINION FILED. [09-20538 Affirmed ] Judge: RHB , Judge: JLD , Judge: CH Mandate pull date is 12/09/2010 for Appellant Martin Acosta; granting motion waive oral argument filed by Appellant Mr. Martin Acosta [6644994-2] [09-20538]

USA v. Martin Acosta ase: 09-20538 C

Document: 00511298021 Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 18, 2010 N o . 09-20538 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. M A R T I N ACOSTA, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 4:09-cr-00054

B e fo r e BARKSDALE, DENNIS, and HAYNES, Circuit Judges. P E R CURIAM:* T h e defendant, Martin Acosta, was sentenced to 30 months of im p r is o n m e n t for illegal reentry pursuant to 8 U.S.C. § 1326(a) and (b)(2). He a p p e a ls , challenging the district court's imposition of a 16-level offense level e n h a n c e m e n t under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for having been "previously d e p o r t e d " following a "conviction for a felony that is . . . a crime of violence." The d is t r ic t court adopted the Pre-Sentence Report's recommendation that this e n h a n c e m e n t be applied in light of Acosta's two prior convictions under Florida
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-20538 Document: 00511298021 Page: 2 Date Filed: 11/18/2010

No. 09-20538 S t a tu t e § 800.04(6)(a). Acosta argues on appeal, as he did below, that § 800.04(6)(a)--which criminalizes lewd or lascivious conduct committed upon o r in the presence of persons less than 16 years of age--is not a crime of violence ju s tify in g the enhancement because it does not involve "abuse" of the victim. We d is a g r e e and AFFIRM. " T h e district court's characterization of [a defendant's] prior conviction" for t h e purposes of a Sentencing Guidelines enhancement "is a question of law that w e review de novo." United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2 0 0 5 ). Acosta acknowledges that U.S.S.G. § 2L1.2(b)(1)(A)(ii) defines "crime of v io le n c e " to include those offenses involving "sexual abuse of a minor." § 2L1.2(b)(1)(A)(ii). See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). "We use a c o m m o n -s e n s e approach to determine if a prior conviction is categorically [such] a n enumerated offense [e.g., "sexual abuse of a minor"], deciding whether an o ffe n s e is sexual abuse of a minor according to [the offense's] ordinary, c o n t e m p o r a r y and common meaning." United States v. Munoz-Ortenza, 563 F.3d 1 1 2 , 114 (5th Cir. 2009). Acosta further concedes that we are required to c o n c lu d e that a conviction is for "sexual abuse of a minor" if our common sense a p p r o a c h determines that the offense involved conduct that (1) "involve[d] a m in o r "; (2) was "sexual" in nature; and (3) was "abus[ive]" towards the minor. S e e Izaguirre-Flores, 405 F.3d at 275. Florida Statute § 800.04(6)(a) makes it a felony to "1. [i]ntentionally t o u c h [] a person under 16 years of age in a lewd or lascivious manner; or 2. [s ]o lic it[] a person under 16 years of age to commit a lewd or lascivious act." The p a r tie s dispute whether we can determine from the record which prong of § 800.04(6)(a) Acosta was convicted under. However, we need not resolve this d is a g r e e m e n t . Acosta concedes that if intentionally touching a person under 16 y e a r s of age in a lewd or lascivious manner necessarily involves "sexual abuse 2

Case: 09-20538 Document: 00511298021 Page: 3 Date Filed: 11/18/2010

No. 09-20538 o f a minor," then so does soliciting a person under 16 years of age to commit a le w d or lascivious act. Therefore, because we conclude below that the offense of in t e n tio n a lly touching a person under 16 years of age in a lewd or lascivious m a n n e r necessarily is "sexual abuse of a minor," we conclude that a conviction u n d e r either prong of Florida Statute § 800.04(6)(a) is a crime of violence under U .S .S .G . § 2L1.2(b)(1)(A)(ii). A c o s t a does not challenge that a conviction for intentionally touching a p e r s o n under 16 years of age in a lewd or lascivious manner necessarily involves a minor. Moreover, he explains that under Florida law "lewd" and "lascivious" h a v e the same meaning and are defined as "`a wicked, lustful, unchaste, lic e n t io u s , or sensual intent on the part of the person doing an act.'" Def. Br. 15 (q u o tin g In re Standard Jury Instructions in Criminal Cases--Report No. 20080 2 , 998 So. 2d 1138, 1140 (Fla. 2008)). Therefore, Acosta concedes that a c o n v ic t io n under § 800.04(6)(a) is an "inherent[ly]" sexual offense. Id. We have previously defined "abuse" as conduct that results in either p h y s ic a l or psychological harm to the child. See United States v. Zavala-Sustaita, 2 1 4 F.3d 601, 605 (5th Cir. 2000); see also Izaguirre-Flores, 405 F.3d at 275-76. M o r e o v e r , we have established a per se rule that "[g]ratifying or arousing one's s e x u a l desires in the . . . presence of a child is" abusive "because it involves t a k in g undue or unfair advantage of the minor and causing such minor p s y c h o lo g i c a l -- if not physical--harm." Izaguirre-Flores, 405 F.3d at 275-76. T h e r e fo r e , we have recognized that sexually suggestive contact with, or even in t h e presence of, a minor amounts to sexual abuse of a minor. United States v. B a ld e r a s -R u b io , 499 F.3d 470, 473 (5th Cir. 2007) (citing Izaguirre-Flores, 405 F .3 d at 275-76)). Accordingly, a conviction under § 800.04(6)(a) for touching a minor in a le w d or lascivious manner necessarily involves abuse because it involves s e x u a lly suggestive contact with the minor. Consistent with the statute's plain 3

Case: 09-20538 Document: 00511298021 Page: 4 Date Filed: 11/18/2010

No. 09-20538 t e x t, the jury instructions for the offense, promulgated by the Florida Supreme C o u r t , establish that an element is that the perpetrator touched the minor in a " le w d or lascivious manner." In re Standard Jury Instructions, 998 So. 2d at 1 1 4 0 . (emphasis added). As noted above, Acosta concedes "lewd or lascivious" in d ic a te s that the perpetrator acted with sexual intent. Therefore, to be found t o have acted in a "lewd or lascivious manner" the perpetrator necessarily must h a v e touched the minor so as to communicate or exhibit his sexual desire. See O s tr o w v. Imler ex rel. D.I., 27 So. 3d 237, 239 (Fla. Dist. Ct. App. 2010) (stating t h a t to be convicted under § 800.04(6)(a)(1), the defendant must have committed " s e x u a l conduct"). As we have explained, such sexually suggestive contact in v o lv e s abuse because it involves gratifying or arousing one's sexual desires in t h e presence of a minor, which causes psychological if not physical harm to the m in o r . Balderas-Rubio, 499 F.3d at 473; Izaguirre-Flores, 405 F.3d at 275-76. T h e r e fo r e , we conclude that a conviction under Florida Statute § 800.04(6)(a) constitutes a conviction for "sexual abuse of a minor," which is a " c r im e of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, we AFFIRM t h e sentence. Acosta moved to withdraw his request for oral argument and have t h is case decided expeditiously. That motion is GRANTED.

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