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Click here for the full text of this decision FACTS:Roberto Najera-Najera pleaded guilty in the district court below to one count of illegally re-entering the United States after being deported, in violation of 8 U.S.C. �1326(a) and (b)(2). On Jan. 27, 2006, before his deportation, Najera pleaded guilty to indecency with a child in violation of Texas Penal Code �21.11(a)(1). The U.S. Sentencing Guidelines provide for a base offense level of eight for the crime of illegal re-entry. U.S. Sentencing Guideline �2L1.2(b)(1)(A)(ii) provides for a 16-offense level increase if a person convicted of illegal re-entry was previously convicted of a “crime of violence.” The notes to �2L1.2 enumerate generic offenses that count as crimes of violence; one of them is “sexual abuse of a minor.” Concluding that a violation of � 21.11(a) amounts to “sexual abuse of a minor” for purposes of �2L1.2(b)(1)(A)(ii), the district court increased Najera’s offense level by 16 but decreased it by three in light of Najera’s acceptance of responsibility making his total offense level 21. The district court imposed a prison term of 57 months, the maximum sentence within the applicable guideline range. Najera appealed the district court’s determination that his previous offense constituted a crime of violence under �2L1.2(b)(1)(A)(ii). He admitted that he failed to preserve the issue by objecting to the enhancement at sentencing. Najera also argued that the enhancement of his sentence based on a fact not charged in the indictment his prior conviction violated his Sixth Amendment rights. HOLDING:Affirmed. A district court’s characterization of a prior conviction as a crime of violence is a question of law. Because Najera did not object to the basis of enhancement, the 5th Circuit reviewed the district court’s decision for plain error. Under the plain-error standard, a defendant must establish error that is plain and affects his substantial rights. An error affects substantial rights if “the probability of a different result is sufficient to undermine confidence in the outcome. Najera admitted to violating �21.11. Thus, the court sought to determine “whether one commits”sexual abuse of a minor,’ according to the generic and contemporary meaning of that crime, if he makes”sexual contact’ as defined in �21.11(c) with an individual 16 years old or younger.” The court began by noting that in its 2000 decision United States v. Zavala-Sustaita, it held that a violation of � 21.11(a)(2) the indecent exposure subsection of the statute � is necessarily a “crime of violence” for purposes of �2L1.2. The court first concluded that, under generic-meaning analysis, a person younger than 17 years old is a “child.” Second, the court concluded that exposure of one’s genitals or anus is an act of a “sexual” nature. Third, the court noted that a child who is perversely subjected to exposure as described in paragraph (a)(2) may suffer psychological harm, thereby making the causal conduct “abusive.” Thus, the court held that if violation of �21.11(a)(2) � indecent exposure absent physical contact � ipso facto constitutes “sexual abuse of a minor,” common sense dictates that an adult’s sexual contact with a child as proscribed in �21.11(a)(1) also constitutes “sexual abuse of a minor,” and the district court’s enhancement based on this conclusion was not error, plain or otherwise. OPINION:Elrod, J.; Reavley, Benavides and Elrod, JJ.

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