United States v. Gerardo Montes-Barrientos

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 2018
• Docket: 18-40024
• Status: Unpublished

Opinion

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, 137 S. Ct. 1562, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, 556 U.S. 129, 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, 754 F.3d 286, 294 (5th Cir. 2014). In Shroff v. Sessions, 890 F.3d 542, 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 Puckett, 556 U.S. at 135; see also United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009). AFFIRMED.