Case: 15-41109   Document: 00513672219        Page: 1   Date Filed: 09/09/2016




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


                                    No. 15-41109                       FILED
                                                                September 9, 2016
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

JOSE ALVARO RIVAS,

             Defendant - Appellant




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


Before KING, SMITH, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Jose Alvaro Rivas appeals his 41-month sentence for illegal reentry
following deportation. He argues that the district court erred in imposing a
16-level sentencing enhancement based on its finding that an Ohio conviction
for attempted unlawful sexual conduct with a minor constitutes a crime of
violence.
      The Ohio conviction involved Rivas soliciting sex online from a person
whom he thought was a 14-year-old girl named “Molly.” It wasn’t until Rivas
arrived at the hotel where he planned to meet “Molly” for sex that he learned
she was not a minor but was, instead, an undercover detective working an
internet sting operation.
    Case: 15-41109          Document: 00513672219           Page: 2   Date Filed: 09/09/2016



                                          No. 15-41109
      Rivas relied on the undercover nature of the operation to challenge the
“crime of violence” enhancement at his sentencing hearing. He argued that his
Ohio conviction does not qualify as “sexual abuse of a minor” (one of the
enumerated “crimes of violence” under section 2L1.2 of the Guidelines 1)
because there was no minor involved. After the government pointed out that
Rivas had been convicted of an attempt to engage in unlawful sexual conduct,
the district court overruled the objection.
      Rivas makes a different argument on appeal. He contends that the Ohio
statute under which he was convicted does not comport with the generic,
contemporary meaning of “sexual abuse of a minor” because it requires only a
reckless state of mind as to the minor’s age, not actual knowledge. Here is the
statutory language:
      No person who is eighteen years of age or older shall engage in
      sexual conduct with another, who is not the spouse of the offender,
      when the offender knows the person is thirteen years of age or
      older but less than sixteen years of age, or the offender is reckless
      in that regard.
OHIO REV. CODE § 2907.04(A).
      The government argues that plain error review should apply because
Rivas did not make this argument about mens rea in the district court. Rivas
responds that he is merely “refining” the argument he made about the absence
of an actual minor in the Ohio offense. Although we are inclined to agree with
the government that the issue Rivas raises on appeal is sufficiently distinct
from that presented to the district court to warrant the demanding standard
for correction of forfeited errors, we need not resolve the standard of review
question because there is no error even under de novo review.




      1   See U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii).
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                                    No. 15-41109
      Rivas’s assertion that the Ohio statute encompasses behavior beyond the
generic definition of “abuse” because it requires only recklessness as to the
minor’s age is at odds with previous holdings of this court. We have held that
Virginia and Louisiana statutes that lack any mens rea requirement
nonetheless fall within the generic definition of “sexual abuse of a minor.” See
Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014) (holding that a Virginia
statute that criminalizes carnal knowledge of a child without regard to the
defendant’s knowledge constitutes “sexual abuse of a minor”); Ramos-Garcia
v. Holder, 483 F.App’x 926, 928–29 (5th Cir. 2012) (per curiam) (holding that
a Louisiana statute that prohibits indecent behavior with juveniles and
explicitly states that “[l]ack of knowledge of the child’s age shall not be a
defense” constitutes “sexual abuse of a minor”); 2 see also United States v.
Ramos-Martinez, 617 F.App’x 287, 288 (5th Cir. 2015) (per curiam) (holding on
plain error review that the defendant could not establish obvious error with
applying a crime of violence enhancement based on a conviction under a
Michigan statute that does not require that the defendant know the victim’s
age). It necessarily follows that a statute like Ohio’s requiring at least a
reckless state of mind concerning the age of the victim qualifies as “sexual
abuse of a minor.”
      The judgment of the district court is AFFIRMED.




      2 Contreras and Ramos-Garcia considered the term “sexual abuse of a minor” in the
context of immigration proceedings, but we apply the same generic definition of the term
under both the immigration statute (8 U.S.C. § 1101(a)(43)(A)) and section 2L1.2 of the
Guidelines. See United States v. Najera-Najera, 519 F.3d 509, 512 & n.2 (5th Cir. 2008).
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