UNITED STATES v. AYALA (2008)

Appellant Guillermo Ayala was convicted below of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a)-(b).  Prior to being deported, Ayala was convicted of indecency with a child in violation of Texas Penal Code § 21.11(a)(1).   Equating “indecency with a child” under Texas law with “sexual abuse of a minor” for purposes of § 2L1.2 of the Federal Sentencing Guidelines, the district court enhanced Ayala's offense level by sixteen and imposed a sentence of seventy-eight months' imprisonment.

Ayala contends that § 21.11(a)(1) proscribes conduct beyond that falling within the ordinary and contemporary meaning of “sexual abuse of a minor,” and therefore that his prior conviction under that statute is not a legitimate basis for a crime-of-violence enhancement under the Guidelines.   Specifically, he argues that the definition of “child” under § 21.11(a)-a person less than seventeen years of age-is inconsistent with the contemporary and ordinary meaning of “minor” because, for purposes of many states' statutory rape laws, a person's “age of consent” is deemed to be sixteen.   See generally United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir.2008) (discussing when children reach the age of consent under various states' statutory rape laws).

As Ayala recognizes, we have already addressed the issue of whether a violation of § 21.11(a) constitutes sexual abuse of a minor for purposes of § 2L1.2;  in answering in the affirmative, we have stated that “ ‘a child younger than 17 years[ ]’ is clearly a ‘minor.’ ”  United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000) (quoting § 21.11(a));  see also United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir.2008) (relying on Zavala-Sustaita in stating “under generic-meaning analysis, a person younger than 17 years old is a ‘child’ ”).   Because our precedent forecloses Ayala's argument, the judgment of the district court is AFFIRMED.

PER CURIAM: