Case: 11-20508     Document: 00512223517       Page: 1    Date Filed: 04/29/2013




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

                                                                       FILED
                                                                      April 29, 2013

                                    No. 11-20508                     Lyle W. Cayce
                                                                          Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee

v.

JULIAN GARZA-GUIJAN, also known as Julian Garza, also known as Julien
Garza-Guijan, also known as Julian Garza-Guillen,

                                              Defendant-Appellant



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


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
DENNIS, Circuit Judge:
      Julian Garza-Guijan (“Garza”) pleaded guilty to illegal reentry of an alien
previously removed subsequent to a conviction for commission of an aggravated
felony in violation of 8 U.S.C. § 1326(a) and (b)(2). The presentence report
recommended a sixteen-level sentence enhancement under U.S. Sentencing
Guidelines § 2L1.2(b)(1)(A)(ii) for reentry “after . . . a conviction for a felony that
is . . . a crime of violence” based on Garza’s prior Florida state court convictions
for burglary and sexual battery.         Garza filed a written objection to the
presentence report, arguing that neither conviction constituted a “crime of
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                                   No. 11-20508

violence.” The district court overruled Garza’s objection and applied the enhancement.
      On appeal, Garza again contends that neither of his Florida convictions
constituted a crime of violence. The government now agrees that the district
court erred in overruling Garza’s objection as to his burglary conviction under
Florida Statutes § 810.02 (1987). See United States v. Gomez-Guerra, 

, 304 (5th Cir. 2007); see also James v. United States, 

, 212
(2007). The government instead argues that the district court nonetheless was
permitted to apply the enhancement based on Garza’s sexual battery conviction.
We agree that Garza’s sexual battery conviction constitutes a crime of violence
and therefore affirm.
      “We review the district court’s characterization of a prior offense as a
crime of violence de novo.” United States v. Flores–Gallo, 

, 821 (5th
Cir. 2010) (per curiam). “The Guidelines commentary defines a crime of violence
as (1) any of a list of enumerated offenses, . . . or (2) ‘any offense under federal,
state, or local law that has as an element the use, attempted use, or threatened
use of physical force against the person of another.’” United States v. Najera-
Mendoza, 

, 629 (5th Cir. 2012). “We give controlling weight to the
Sentencing Guidelines commentary unless it is plainly erroneous or inconsistent
with the Guidelines.” Id. “In analyzing whether a prior offense qualifies as a
crime of violence, this court applies a categorical inquiry that looks to the
elements of the crime, not to the defendant’s actual conduct in committing it.”
Id. (internal quotation marks omitted). Our analysis is “based on the generic,
contemporary meaning of the terms used in the Guidelines.” United States v.
Herrera, 

, 176 (5th Cir. 2011) (citation and internal quotation marks
omitted). “[I]f the defendant was convicted under a statute following the generic
definition with minor variations, or a statute narrower than the generic crime,
the sentence enhancement may be applied.” Id. But “[i]f the prior offense of
conviction sweeps more broadly than this generic definition, that conviction does

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                                       No. 11-20508

not fall within the enumerated category, regardless of the label a state attaches
to the underlying offense.” United States v. Hernandez-Galvan, 

,
197 (5th Cir. 2011).
       Applying these principles, we conclude that Garza’s sexual battery
conviction constitutes a crime of violence within the scope of the enumerated
category of “forcible sex offenses.” See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). The
Florida sexual battery statute that Garza pleaded guilty to violating provides:
“A person who commits sexual battery upon a person 12 years of age or older,
without that person’s consent, and in the process thereof uses physical force and
violence not likely to cause serious personal injury is guilty of a felony in the
second degree.” Fla. Stat. Ann. § 794.011(5) (1987) (emphasis added). The
statute defines “sexual battery” as “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration of
another by any other object,” excluding “an act done for a bona fide medical
purpose.” Id. § 794.011(1)(h). “To constitute sexual battery under [§ 794.011(5)],
the State must prove the victim did not consent.” Khianthalat v. State, 

 359, 362 (Fla. 2008). In turn, “‘[c]onsent’ means intelligent, knowing, and
voluntary consent and does not include coerced submission.” Fla. Stat. Ann.
§ 794.011(1)(a) (1987).1 The Guidelines commentary, meanwhile, specifically
describes the “forcible sex offenses” category of crime of violence convictions as
“including where consent to the conduct is not given or is not legally valid, such
as where consent to the conduct is involuntary, incompetent, or coerced.”
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii); see also Herrera, 647 F.3d at 177-78 (discussing
the 2008 amendment to the Guidelines commentary that added this
clarification). Because, under the Florida statute, consent to be valid must be
“intelligent, knowing, and voluntary,” Fla. Stat. Ann. § 794.011(1)(a) (emphasis

       1
        The text of the relevant Florida statutory provisions has not materially changed since
the time of Garza’s conviction. See Fla. Stat. Ann. § 794.011 (2013).

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                                      No. 11-20508

added), Garza plainly was convicted of an offense proscribing sexual conduct
“where consent . . . is not given or . . . is involuntary” and this conviction falls
squarely within the Guidelines category of “forcible sex offenses,” U.S.S.G.
§ 2L1.2 cmt. n. 1(B)(iii).2
       Accordingly, the district court did not err by applying the enhancement.
The sentence is AFFIRMED.




       2
         Garza erroneously asserts that the Florida appellate court decision in McIlwain v.
State, 

 (Fla. Dist. Ct. App. 1981), suggests that the contours of non-consent
under Florida law are somehow broader than the Guidelines category. To the contrary, that
decision simply underscores the requirement that consent under the Florida statute must be
intelligent, knowing, and voluntary: the court affirmed the defendant’s conviction upon
concluding that the evidence “support[ed] the jury’s finding that the victim did not
intelligently consent to the battery.” Id. at 1197.

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