USA v. Santiago Solano-Hernandez

Filing

PUBLISHED OPINION FILED. [15-41554 Affirmed 15-41582 Affirmed ] Judge: EGJ , Judge: JES , Judge: ECP Mandate pull date is 02/16/2017 for Appellant Santiago Solano-Hernandez [15-41554, 15-41582]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41554
No. 15-41582

United States Court of Appeals
Fifth Circuit

FILED
January 26, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
SANTIAGO SOLANO-HERNANDEZ,
Defendant–Appellant.

Appeals from the United States District Court
for the Southern District of Texas

Before JOLLY, SMITH, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Santiago Solano-Hernandez appeals his conviction and sentence for illegal reentry after deportation. He contends that the district court erred in characterizing his New Jersey conviction for “Endangering the Welfare of a Child”
as a crime of violence (“COV”). We affirm.

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I.
In 2012, Solano-Hernandez pleaded guilty in the District of New Jersey
to illegal reentry after deportation following a conviction for an aggravated felony, 8 U.S.C. § 1326(a) and (b)(2). The plea agreement stipulated that his 1995
New Jersey conviction for third-degree “Endangering the Welfare of a Child”
involved the sexual abuse of a minor and was therefore a “crime of violence” as
defined by U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2 cmt.
n.1(B)(iii). Solano-Hernandez was sentenced to twenty-seven months’ imprisonment, as well as a two-year term of supervised release (“SR”) that commenced in October 2013. He was deported in November 2013.
In March 2014, Solano-Hernandez was arrested for illegally entering the
United States and was deported without prosecution the next month. In October 2014, his probation officer filed a revocation petition in the District of New
Jersey, alleging that Solano-Hernandez had violated the terms of SR because
of his illegal reentry. The district court issued an arrest warrant.
In December 2014, Solano-Hernandez was once again arrested for illegally entering and was indicted in the Southern District of Texas for illegal
reentry of a previously deported alien, 8 U.S.C. § 1326. Jurisdiction over the
SR violation was transferred to the Southern District of Texas.

Solano-

Hernandez pleaded guilty, without a plea agreement, to the new illegal-reentry
offense.
The presentence report (“PSR”) assessed Solano-Hernandez a base offense level of 8 under U.S.S.G. § 2L1.2(a). 1 He received a 12-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because he had been deported after a

All U.S.S.G. citations are to the 2014 version, under which the court sentenced
Solano-Hernandez.
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conviction for a felony COV. The basis of that enhancement was the same 1995
New Jersey conviction for “Endangering the Welfare of a Child.” Following a
three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, the
PSR assigned a total offense level of 17, which, combined with a criminalhistory category of III, yielded a guideline range of 30 to 37 months. SolanoHernandez did not object to the PSR’s guidelines calculations.
The district court conducted a joint sentencing and revocation hearing
and sentenced Solano-Hernandez to 30 months’ imprisonment and three years
of SR for the new reentry offense. The judgment states that he was sentenced
under 8 U.S.C. § 1326(a) and (b)(2). The district court also revoked his prior
SR and sentenced him to four months’ imprisonment, to be served consecutively to the illegal-reentry sentence. Solano-Hernandez appealed the § 1326
conviction and the revocation judgment, and we consolidated the appeals. 2
II.
Solano-Hernandez contends that the district court erred in characterizing his 1995 conviction as a COV, thus triggering the twelve-level enhancement. Because he did not object, we apply the plain-error standard. United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To establish plain error,
Solano-Hernandez must show (1) an error; (2) that was clear or obvious; and
(3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). “[I]f the above three prongs are satisfied, [we have] the discretion
to remedy the error—discretion which ought to be exercised only if the error
seriously affects the fairness, integrity or public reputation of judicial
On appeal, Solano-Hernandez challenges only the § 1326 conviction and sentence.
Because he does not identify any specific error with the revocation or the revocation sentence,
he has abandoned any challenge to the revocation proceeding. United States v. Charles,
469 F.3d 402, 408 (5th Cir. 2006).
2

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proceedings.” Id. (quotation marks and alterations omitted). “Meeting all four
prongs is difficult, as it should be.” Id. (quotation marks omitted).
A.
To determine whether a conviction qualifies as a COV, we apply the “categorical approach,” United States v. Rodriguez, 711 F.3d 541, 544, 549 (5th Cir.
2013) (en banc), under which we first look to the offense category that triggers
the enhancement. We
evaluate whether the meaning of that offense category is clear from the
language of the enhancement at issue or its applicable commentary. If
not, we . . . determine whether that undefined offense category is an
offense category defined at common law, or an offense category that is
not defined at common law . . . [I]f the offense category is a noncommon-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other wellaccepted dictionaries.
Id. at 544.
We then look to the state statute of conviction and, ordinarily, compare
its elements to the generic meaning of the offense category. Id. But where a
state statute is divisible, having “multiple alternative elements,” we may apply
the “modified categorical approach,” which permits us to “look[ ] to a limited
class of documents . . . to determine what crime, with what elements, a defendant was convicted of.” 3 We can then compare the elements of that crime to
the generic meaning of the offense category. Mathis, 136 S. Ct. at 2249.
The relevant offense category is “sexual abuse of a minor.” 4

That

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see also Rodriguez, 711 F.3d
at 549 n.8.
3

The district court applied the enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
which is triggered by a prior conviction for a COV. The guideline commentary defines COV
to include “sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). See United States v.
4

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category “is neither clearly defined in the Guidelines nor an offense defined at
common law.” 5 Thus, we must look to its generic, contemporary meaning.
“‘Sexual’ is defined as ‘[o]f, pertaining to, affecting, or characteristic of sex, the
sexes, or the sex organs and their functions.’” 6 “Abuse” is defined as “to take
unfair or undue advantage of or to use or treat so as to injure, hurt, or damage.”
Id. (quotation marks omitted). “We have repeatedly endorsed the definition of
‘sexual abuse’ set forth in Black’s Law Dictionary, which is ‘an illegal or wrongful sex act, esp. one performed against a minor by an adult.’” 7 Finally, “minor”
is a person under the age of eighteen. Rodriguez, 711 F.3d at 560.
Solano-Hernandez was convicted under a statute providing that
[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who
causes the child harm that would make the child an abused or neglected
child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c. 119, s. 1 (C.9:68.21) is guilty of a crime of the second degree. Any other person who
engages in conduct or who causes harm as described in this subsection
to a child under the age of 16 is guilty of a crime of the third degree.
N.J. STAT. ANN. § 2C:24-4 (West 1994). Solano-Hernandez maintains that the
statute has alternative elements, thus justifying resort to the modified categorical approach.
We agree. New Jersey courts have interpreted Section 2C:24-4 as having

Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) (“Guideline commentary is given
controlling weight if it is not plainly erroneous or inconsistent with the guidelines.” (quoting
United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010)); see also United States v.
Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002) (holding that sexual abuse of a minor constitutes a COV under U.S.S.G. § 2L1.2).
United States v. Vigil, 774 F.3d 331, 334 (5th Cir. 2014) (citing Rodriguez, 711 F.3d
at 557–58).
5

6

Id. (quoting Contreras v. Holder, 754 F.3d 286, 294 (5th Cir. 2014)).

7

Id. (quoting “Sexual Abuse,” BLACK’S LAW DICTIONARY (9th ed. 2009)).

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two prongs. 8

The elements of the first prong are (1) engaging in sexual

conduct; (2) knowingly; (3) with a child under the age of sixteen; and (4) the
conduct has the capacity to debauch or impair the morals of a child. 9 The
elements of the second prong are (1) the victim is a child; (2) the defendant had
a duty of care for him; and (3) the defendant knowingly caused the child harm,
making him an abused or neglected child. State v. Frisby, 811 A.2d 414, 423
(N.J. 2002). “Because the statute provide[s] alternative elements that could
constitute child endangerment . . . the statute is divisible.” 10
The parties concur that the “engag[ing] in sexual conduct” prong falls
within the generic definition of “sexual abuse of a child.” 11 But they dispute
whether Solano-Hernandez’s conviction can properly be narrowed to that
prong. Under the modified categorical approach, we may look to certain records to narrow the statute of conviction. Those records “are generally limited
to . . . the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.” 12 If such records “do not provide conclusive evidence, we assume

See, e.g., State v. Hutchinson, No. A-1377-05T4, 2011 WL 5105449, at *6 (N.J. Super.
Ct. App. Div. Oct. 28, 2011) (per curiam). In interpreting the elements of state statutes, it is
appropriate to look to state-court decisions. United States v. Uribe, 838 F.3d 667, 670 (5th
Cir. 2016) (citing Mathis, 136 S. Ct. at 2250, 2256–57).
8

In re W.P., No. A-1913-10T1, 2011 WL 2330902, at *2 (N.J. Super. Ct. App. Div.
June 15, 2011) (per curiam) (citing State v. Hackett, 764 A.2d 421, 428 (N.J. 2001); State v.
Bryant, 15 A.3d 865, 866 (N.J. Super. Ct. App. Div. 2011)).
9

United States v. Berry, 814 F.3d 192, 199 (4th Cir. 2016); see also Stubbs v. Attorney
Gen. of U.S., 452 F.3d 251, 254–55 (3d Cir. 2006) (concluding that § 2C:24-4 contains
alternative elements).
10

See Jabbar v. Attorney Gen. of U.S., 508 F. App’x 156, 159 (3d Cir. 2013) (per curiam)
(holding that a conviction under Section 2C:24-4 constituted “sexual abuse of a minor”);
Uzoka v. Attorney Gen. of U.S., 489 F. App’x 595, 597–98 (3d Cir. 2012) (per curiam) (same).
11

United States v. Herrera-Alvarez, 753 F.3d 132, 138 (5th Cir. 2014) (quoting Shepard
v. United States, 544 U.S. 13, 16 (2005)).
12

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the defendant’s conduct constituted the ‘least culpable act satisfying the count
of conviction.’” 13 Because both parties agree that a conviction under the second
prong does not constitute “sexual abuse of a minor,” 14 the district court could
have applied the COV enhancement only if appropriate records established
that Solano-Hernandez was convicted for “engag[ing] in sexual conduct.”
The PSR contained four records: (1) a 1994 New Jersey indictment;
(2) Solano-Hernandez’s plea form; (3) a copy of Section 2C:24-4; and (4) the
New Jersey judgment. The parties agree that the first three records cannot
narrow the offense. The indictment charged Solano-Hernandez with violating
Section 2C:14-2c(5) based on “an act of sexual penetration upon L.O. when L.O.
was at least 13 but less than 16 years old and [Solano-Hernandez] was at least
4 years older than L.O.” But because Solano-Hernandez was actually convicted
under a different statute, the indictment cannot be used to narrow the offense. 15 The plea form specifies only that Solano-Hernandez pleaded guilty of
“Endangering the Welfare of a Child” in the third degree; it does not provide
the factual basis.
The dispute ultimately centers on the judgment, which contains a field
for a “Statement of Reasons,” in which the New Jersey court wrote “See Reasons Attached.” Attached is a document entitled “Reasons for Sentence,” which

Vigil, 774 F.3d at 335 (quoting United States v. Espinoza, 733 F.3d 568, 572 (5th
Cir. 2013)).
13

See Stubbs, 452 F.3d at 254 (“A conviction could lie under [Section 2C:24-4] for
‘willfully failing to provide proper and sufficient food’ for a child pursuant to N.J. STAT. ANN.
§ 9:6-1, one of the enumerated protective-welfare statutes. This offense would hardly
constitute ‘sexual abuse of a minor’ . . . .”).
14

United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007); United States
v. Turner, 349 F.3d 833, 836 (5th Cir. 2003). Although the state-court documents indicate
that an amended indictment was issued, a copy of the amended indictment is not part of the
record.
15

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describes the “circumstances surrounding [the offense.]” 16 It also describes
aggravating and mitigating circumstances. Solano-Hernandez contends that
the attached factual description cannot narrow the offense because there is no
indication that he “assented” to those facts. See Herrera-Alvarez, 753 F.3d
at 138. He points us to Larin-Ulloa v. Gonzales, 462 F.3d 456, 468–69 (5th Cir.
2006), in which we said, “Unlike the charging document, the guilty plea, or the
factual basis for the plea confirmed by the defendant, sentencing reasons and
factors do not simply define the charge and the defendant’s guilty plea, but,
instead, frequently refer to facts neither alleged nor admitted in court.”
Solano-Hernandez points out that New Jersey law required the court to provide its reasons for imposing the sentence. See N.J. STAT. ANN. § 2C:43-2 (West
1994).
The government counters that we have said that “state court judgment[s] fall within the scope of documents a court may consider under Shepard.” United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008),
overruled by Mathis, 136 S. Ct. at 2250. Though we have repeatedly noted that
judgments are appropriate records, 17 we have not yet had occasion to elaborate

16

The “Reasons for Sentence” describes the circumstances as follows:

On April 7, 1994 a juvenile victim, L.M.O., responded to Green Brook Police Department with her mother and a relative to report a sexual assault. The victim gave a
statement to police indicating that she had sexual intercourse with the defendant,
who at the time of the offense was 23 years old. The offense took place in the Green
Brook Motel, Route 22, Green Brook, New Jersey. The victim reported that at the
time of the offense she was 14 years old. On April 28, 1994 the defendant was picked
up for questioning. The defendant was read his Miranda rights which he indicated
that he understood. He gave a taped statement in which he admitted that he had
sexual intercourse with the victim on April 7, 1994.
E.g., Garcia-Arellano, 522 F.3d at 480; United States v. Conde-Castaneda, 753 F.3d
172, 176 (5th Cir. 2014); United States v. Elizondo-Hernandez, 755 F.3d 779, 781–82 (5th Cir.
2014) (per curiam).
17

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on how a judgment may be used. It may certainly be used for establishing the
fact of conviction or to show which part of the statute a defendant was convicted
of. 18 But if the judgment includes narrowing facts, the overriding requirement
remains that they must be “explicit factual finding[s] by the trial judge to
which the defendant assented.” Shepard, 544 U.S. at 16 (emphasis added). A
sentencing court may not rely on facts merely because they appear in a
judgment.
There is no indication that Solano-Hernandez assented to the facts in the
“Reasons for Sentence.” Thus, the district court could not properly rely on it.
Without the facts in the “Reasons for Sentence,” the documents in the PSR are
not “conclusive evidence” that Solano-Hernandez was convicted under the
“engag[ing] in sexual conduct” prong of Section 2C:24-4. Vigil, 774 F.3d at 335.
Consequently, the district court erred in enhancing the sentence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
B.
Merely showing error, however, is never sufficient to satisfy the stringent standard of plain-error review. Instead, Solano-Hernandez must show
that “the legal error [was] clear or obvious, rather than subject to reasonable
debate.” United States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009) (quoting
Puckett, 556 U.S. at 135). We pretermit deciding this second prong and assume
arguendo that the error was plain, because, as explicated below, the entreaty
to grant plain-error review fails at the fourth prong.
To satisfy the third prong, Solano-Hernandez must show that his
For example, suppose a divisible statute has two subparts, (a) and (b), and that
subpart (a) qualifies as a COV, though subpart (b) does not. If a judgment specifies that a
conviction is under subpart (a), the sentencing court may look to the judgment to narrow the
offense.
18

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substantial rights were affected. Puckett, 556 U.S. at 135. For the same reason
that we pretermit discussion of the second prong, we assume arguendo that
the third prong is satisfied.
C.
Even if Solano-Hernandez were to satisfy the first three prongs, we must
decide whether to exercise our discretion to remedy the error. We do so only
where “the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” 19 “The fourth prong . . . is not satisfied simply because
the ‘plainly’ erroneous sentencing guideline range yields a longer sentence
than the range that, on appeal, we perceive as correct.” United States v.
Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). 20 Rather, “[t]he types of
errors that warrant reversal are ones that would shock the conscience of the
common man, serve as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of the district judge.”
United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quotation marks
omitted).
This is not one of those rare cases. “[W]e have declined to exercise our
discretion to notice sentencing errors [when the facts involve] recidivistic
behavior.” Martinez-Rodriguez, 821 F.3d at 666. Solano-Hernandez has been
deported on four separate occasions and was convicted of the same offense,

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett, 556 U.S. at 135).
19

See also Ellis, 564 F.3d at 378 (“Not every error that increases a sentence need be
corrected by a call upon plain error doctrine.”); United States v. Wooley, 740 F.3d 359, 369
(5th Cir. 2014) (“This circuit has repeatedly emphasized that even when we find that the first
three factors have been established, this fourth factor is not automatically satisfied.” (quotation marks omitted)).
20

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illegal reentry, several years ago. 21 Indeed, he had been deported mere months
before the illegal reentry with which this case is concerned. 22 We have also
considered criminal history in deciding whether to exercise our discretion. 23 In
addition to his illegal reentry and “Endangering the Welfare of a Child” convictions, Solano-Hernandez has been convicted of aggravated assault with a
deadly weapon. Finally, we note that the 30-month sentence is only six months
outside the correct guideline range 24 and well within the 20-year statutory
maximum. 25
We cannot say that the error or resulting sentence would “shock the
conscience of the common man, serve as a powerful indictment against our
system of justice, or seriously call into question the competence or integrity of
the district judge.” Segura, 747 F.3d at 331 (quoting Escalante-Reyes, 689 F.3d
at 435). Thus, even if the district court plainly erred, we will not exercise our
discretion to remedy that error.

See United States v. Patino–Almendariz, No. 15-41146, 2016 WL 6871993, at *3 (5th
Cir. Nov. 21, 2016) (per curiam) (unpublished) (noting that prior convictions for illegal reentry counseled against the exercise of discretion).
21

See United States v. Luviano, 604 F. App’x 347, 348–49 (5th Cir. 2015) (per curiam)
(declining to correct an error because, inter alia, “Luviano returned to the United States
within 18 months after his most recent removal, thereby committing the same offense that
gave rise to the term of supervised release.”).
22

See, e.g., United States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016); Segura, 747 F.3d
at 33; Patino–Almendariz, 2016 WL 6871993, at *3.
23

In asking us to exercise our discretion, Solano-Hernandez points to cases with larger
disparities. See United States v. Hernandez, 690 F.3d 613, 621–22 (5th Cir.2012) (12-month
disparity); United States v. Mudekunye, 646 F.3d 281, 290–91 (5th Cir. 2011) (per curiam)
(19-month disparity); United States v. John, 597 F.3d 263, 285–86 (5th Cir. 2010) (21-month
disparity).
24

See Luviano, 604 F. App’x at 349 (declining to correct an error because, inter alia,
“the 24-month sentence did not exceed the available statutory maximum”).
25

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III.
Solano-Hernandez claims that the district court erred in convicting him
under 8 U.S.C. § 1326(b)(2), which applies to aliens “whose removal was subsequent to a conviction for commission of an aggravated felony.” He contends
that his 1995 conviction was not for sexual abuse of a minor and so does not
qualify as an aggravated felony. 26 But even if he were correct, he had also been
convicted in 2013 of illegal reentry under Section 1326(b)(2), and that qualifies
as an aggravated felony. 27 Thus, the court did not err in convicting SolanoHernandez under Section 1326(b)(2).
The conviction and sentence are AFFIRMED.

See 8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony” to include “sexual abuse
of a minor”).
26

8 U.S.C. § 1101(a)(43)(O) (defining “aggravated felony” to include “an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously
deported on the basis of a conviction for an offense described in another subparagraph of this
paragraph”). See Gamboa-Garcia, 620 F.3d at 548 (“Under its plain language, the 2004
[§ 1326(b)(2)] conviction is itself an aggravated felony under § 1101(a)(43)(O).”); United
States v. Zamora, 519 F. App’x 251, 252 (5th Cir. 2013) (per curiam) (“[A] conviction for illegal
reentry under § 1326(b)(2) is an aggravated felony within the meaning of § 1101(a)(43)(O).”).
27

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