USA v. Mauricio Blanco-Fortuna
UNPUBLISHED OPINION FILED. [12-41287 Affirmed ] Judge: EGJ , Judge: JLD , Judge: CH Mandate pull date is 07/26/2013 for Appellant Mauricio Blanco-Fortuna; granting motion for summary affirmance filed by Appellant Mr. Mauricio Blanco-Fortuna [7331842-2] [12-41287]
Date Filed: 07/05/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 5, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-363-1
Before JOLLY, DENNIS, and HAYNES, Circuit Judges.
Mauricio Blanco-Fortuna appeals the 72-month sentence imposed
following his conviction for being illegally present in the United States following
a prior deportation subsequent to a felony conviction. He contends that the
district court erred by imposing a 16-level enhancement under § 2L1.2 of the
Sentencing Guidelines based on his prior conviction for statutory rape under
Georgia Code Annotated §16-6-3. Specifically, Blanco-Fortuna argues that his
prior offense does not satisfy the “generic, contemporary meaning” of the
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 07/05/2013
enumerated offenses of “statutory rape” or “sexual abuse of a minor” because the
statute of conviction prescribes a three-year age differential between the victim
and the defendant, rather than four years.
As Blanco-Fortuna concedes, his sole argument is effectively foreclosed by
our decision in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en
banc), petition for cert. filed, No. 12-10695 (U.S. June 6, 2013). In Rodriguez, we
applied a “plain-meaning” approach to determine the “generic, contemporary
meaning” of “statutory rape” and “sexual abuse of a minor” and concluded that
the generic definitions of those offense categories do not include any specific age
differential. Id. at 559-62 & n.28. We expressly rejected the claim that the
statute at issue in that case – § 22.011(a)(2) of the Texas Penal Code – did not
satisfy the “generic, contemporary meaning” of “sexual abuse of a minor” because
the statute prescribed a three-year instead of a four-year age differential
between the victim and the defendant. Id. at 562 n.28. Blanco-Fortuna asserts
that he is raising the issue solely to preserve it for further review.
In light of Rodriguez, the district court did not err in imposing a 16-level
enhancement under § 2L1.2 based upon Blanco-Fortuna’s prior conviction for
statutory rape under § 16-6-3(a).
Consequently, the motion for summary
disposition is GRANTED, and the judgment of the district court is AFFIRMED.
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