USA v. Juan Hernandez-Morales

Filing 511107546

Case: 09-50503

Document: 00511107546

Page: 1

Date Filed: 05/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50503 S u m m a r y Calendar May 11, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J U A N MANUEL HERNANDEZ-MORALES, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:08-CR-3488-1

B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. P E R CURIAM:* J u a n Manuel Hernandez-Morales pleaded guilty to illegal reentry into the U n ited States following removal. The district court applied a 16-level crime-ofv io le n c e enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because HernandezM o r a le s had been convicted in Michigan of attempted criminal sexual conduct in the 3rd degree. The district court sentenced Hernandez-Morales to 41 months in prison.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50503

Document: 00511107546 Page: 2 No. 09-50503

Date Filed: 05/11/2010

H e r n a n d e z -M o r a le s argues that the district court erred in imposing a 16le v e l crime-of-violence enhancement because a forcible sex offense in the 3rd d e g re e under Michigan law (MICH. COMP. LAWS ANN. § 750.520d(1)(b)) is not a c r im e of violence because it can be committed by coercion rather than physical fo r c e . The district court's characterization of a prior offense as a "crime of v io le n c e " is a question of law that this court reviews de novo. United States v. S a n tie s te b a n -H e r n a n d e z , 469 F.3d 376, 378 (5th Cir. 2006). I n United States v. Gomez-Gomez, 547 F.3d 242, 247-49 (5th Cir. 2008) (en b a n c ), this court looked to the plain, ordinary meaning of "forcible sex offense" a n d held that sex offenses committed using constructive force that would cause a reasonable person to succumb qualify as forcible sex offenses because such o ffe n s e s necessarily involve victims who have not given actual or freely given c o n s e n t. The conceded statute of conviction, MICH. COMP. LAWS ANN.

§ 750.520d(1)(b), requires nothing more or less than that force or coercion be u s e d to accomplish the sexual penetration to make a person guilty of criminal s e x u a l conduct in the third degree. This necessarily involves victims who have n o t given actual or freely given consent. See Gomez-Gomez, 537 F.3d at 248. T h e r e fo r e , Hernandez-Morales's statute of conviction qualifies as a forcible sex o ffe n s e . The district court did not err in applying the 16-level sentencing

en h an cem en t. H e r n a n d e z -M o r a le s asserts that the maximum sentence for his 8 U.S.C. § 1326 offense is two years of imprisonment because his indictment did not a lle g e that he had a prior felony conviction. This court has held that HernandezM o r a le s 's argument is "fully foreclosed from further debate." United States v. P i n e d a -A r re lla n o , 492 F.3d 624, 625 (5th Cir. 2007). AFFIRMED.

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