USA v. Francisco Chan-Vicente

Filing

UNPUBLISHED OPINION FILED. [14-41371 Affirmed ] Judge: EGJ , Judge: JLW , Judge: GJC Mandate pull date is 09/01/2015 for Appellant Francisco Armando Chan-Vicente [14-41371]

Case: 14-41371

Document: 00513149662

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Date Filed: 08/11/2015

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 14-41371
Summary Calendar

August 11, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO ARMANDO CHAN-VICENTE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-547-1
Before JOLLY, WIENER, and COSTA, Circuit Judges.
PER CURIAM: *
Francisco Armando Chan-Vicente pleaded guilty to illegal reentry into
the United States and received a within-guidelines sentence of 41 months in
prison. He argues that the district court erred by determining that his prior
conviction for indecent liberties with a child under Code of Virginia § 18.2370(A)(3) was a crime of violence meriting a 16-level enhancement under
U.S.S.G. § 2L1.2. “Crime of violence” under this Guidelines section includes

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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sexual abuse of a minor. U.S.S.G. § 2L1.2, comment (n.1(B)(iii)). Because the
Guidelines do not further define that offense, the categorical approach requires
that we assess whether the elements of the state offense of conviction “comport
with the generic meaning” of sexual abuse of a minor.

United States v.

Rodriguez, 711 F.3d 541, 553 (5th Cir. 2013) (en banc), cert. denied, 134 S. Ct.
512 (2013). We conduct a de novo review of this issue. See United States v.
Ramos-Sanchez, 483 F.3d 400, 402 (5th Cir. 2007).
The enhancement was applied based on Chan-Vicente’s prior conviction
of the following offense:
A. Any person 18 year of age or over, who, with lascivious intent,
knowingly and intentionally commits any of the following acts
with any child under the age of 15 years is guilty of a Class 5
felony: . . .
(3) Propose that any such child feel or fondle his own sexual
or genital parts or the sexual or genital parts of such
person or propose that such person feel or fondle the
sexual or genital parts of any such child.
VA. CODE ANN. § 18.2-370(A)(3).

Chan-Vicente concedes that his first

challenge to this offense being classified as sexual abuse of a minor—that it
does not require a certain age difference between the perpetrator and victim—
is foreclosed. See Rodriguez, 711 F.3d at 562 n.28 (rejecting similar argument
because “the definitions of ‘sexual abuse of a minor’ in legal and other wellaccepted dictionaries do not include such an age-differential requirement”).
His remaining contention is that the Virginia offense does not qualify as
sexual abuse of a minor because it does not necessarily entail abuse. ChanVicente argues that the statute could encompass one teenager proposing
“consensual petting” to another, which he argues would not comport with the
ordinary meaning of sexual abuse. See Rodriguez, 711 F.3d at 568 (Haynes, J.,

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concurring in the judgment) (taking the position that a “common-sense, ‘plainmeaning’ understanding of ‘abuse’” would not include “otherwise consensual
‘petting’ between teenagers”). But Chan-Vincente needs to show a “realistic
probability” that the statute would be applied in such a manner, and he cites
no case showing that it ever has been. See United States v. Carrasco-Tercero,
745 F.3d 192, 198 (5th Cir. 2014).
Chan-Vincente further argues that the Virginia offense applies to some
conduct that does not amount to sexual abuse because it does not require a
sexual act in the presence of the child.

Our case law has not, however,

recognized such a requirement. United States v. Cortez-Cortez, 770 F.3d 355,
358 (5th Cir. 2014), confirmed that this court “has established a per se rule
that gratifying or arousing one’s sexual desires in the presence of a child is
abusive,” but did not say that in-person conduct is necessary for an offense to
constitute sexual abuse of a minor. We have recognized that conduct carrying
the potential for psychological harm, without any physical harm, may
constitute sexual abuse of a child. See United States v. Ramon-Sanchez, 483
F.3d 400, 403 (5th Cir. 2007). The statute at issue in Ramon-Sanchez, like the
Virginia one at issue here, can be violated without a showing of physical
proximity. See id. at 402 (quoting KAN. STAT. ANN. § 21-3510(a)(1)). 1 The
psychological harm we recognized as sufficient in Ramon-Sanchez thus did not
depend on physical proximity. Especially in light of modern technology, which
has made the internet a common vehicle for sexual abuse of minors, we are not
convinced that physical proximity is required to establish the psychological
harm that we have recognized is sufficient to constitute abuse.

The Kansas statute prohibited “enticing or soliciting a child 14 or more years of age
but less than 16 years of age to commit or to submit to an unlawful sexual act.” See id. It
has since been repealed.
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We are therefore not persuaded that the district court erred.
judgment is AFFIRMED.

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The