Case: 18-40024      Document: 00514718907         Page: 1    Date Filed: 11/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 18-40024                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                      November 9, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee

v.

GERARDO MONTES-BARRIENTOS, also known as Gerardo Montes,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-513-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Gerardo Montes-Barrietos appeals the sentence imposed following his
guilty plea conviction for illegal reentry, arguing that the district court erred
in sentencing him under 8 U.S.C. § 1326(b)(2) because he does not have a prior
conviction for an aggravated felony. He asserts that in view of Esquivel-
Quintana v. Sessions, 

, 1569 (2017), his prior New Jersey
conviction for endangering the welfare of a child does not qualify as sexual


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40024    Document: 00514718907    Page: 2   Date Filed: 11/09/2018


                                No. 18-40024

abuse of a minor because it does not require contact with the minor.         As
Montes-Barrientos concedes, he did not raise this argument in the district
court and, therefore, review is limited to plain error. See Puckett v. United
States, 

, 135 (2009).
      We have previously held that the generic definition of sexual abuse of a
minor does not require physical contact as psychological harm may
nevertheless occur. See Contreras v. Holder, 

, 294 (5th Cir. 2014).
In Shroff v. Sessions, 

, 545 (5th Cir. 2018), we stated that
Esquivel-Quintana did not abrogate that precedent because the Court focused
on the age requirement and made no express holding about whether contact
was required. Montes-Barrientos contends that the statement in Shroff was
dicta. It was not as it was indirect response to the defendant’s argument in
that case that contact was an element. Moreover, even assuming arguendo
that there was error, the error would not be plain. See 

; see also United States v. Rodriguez-Parra, 

, 230 (5th Cir.
2009).
      AFFIRMED.




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