PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAUL DIAZ-IBARRA, a/k/a Raul Diaz
Ibarra, a/k/a Raul Diaz, a/k/a Raul No. 07-4420
Ibarra-Diaz, a/k/a Raul Gonzales,
a/k/a Ivarra Raul Diaz, a/k/a Rafael
Diaz-Iberra, a/k/a Raul Moralez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Senior District Judge.
(1:06-cr-00438-CMH)
Argued: January 31, 2008
Decided: April 11, 2008
Before WILLIAMS, Chief Judge, and MOTZ and
KING, Circuit Judges.
Affirmed by published opinion. Chief Judge Williams wrote the opin-
ion, in which Judge Motz and Judge King joined.
COUNSEL
ARGUED: Nia Ayanna Vidal, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Alexandria, Virginia, for Appellant. Kyle Hansen,
2 UNITED STATES v. DIAZ-IBARRA
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal
Public Defender, Alan H. Yamamoto, Assistant Federal Public
Defender, Sapna Mirchandani, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
OPINION
WILLIAMS, Chief Judge:
In this appeal we must determine whether a conviction under for-
mer Georgia Code Ann. § 16-6-4 (1992) for felony attempted child
molestation qualifies as a "crime of violence" within the meaning of
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2006). We
hold that it does. A violation of former Georgia Code Ann. § 16-6-4
categorically constituted "sexual abuse of a minor," which the Sen-
tencing Guidelines define as a "crime of violence." We therefore
affirm Diaz-Ibarra’s sentence.
I.
Raul Diaz-Ibarra is a native and citizen of Mexico and an illegal
alien in the United States. In August 1992, a Clayton County, Georgia
grand jury indicted him on two counts of felony attempted child
molestation, in violation of Ga. Code Ann. § 16-6-4. At the time,
§ 16-6-4 provided that "[a] person commits the offense of child
molestation when he does any immoral or indecent act to or in the
presence of or with any child under the age of 14 years with the intent
to arouse or satisfy the sexual desires of either the child or the per-
son." Ga. Code Ann. § 16-6-4 (1992).1 The indictment charged that,
on two occasions and with two different children, Diaz-Ibarra "at-
1
The current version of Georgia Code Ann. § 16-6-4 is substantively
the same as the version under which Diaz-Ibarra was convicted, except
that the current version applies if the victim was under "16 years of age."
Georgia Code Ann. § 16-6-4 (2006).
UNITED STATES v. DIAZ-IBARRA 3
tempted an immoral and indecent act" with a "child under 14 years
of age, with intent to arouse and satisfy the sexual desires of said
accused by offering [the child] a cigarette if she would remove her
clothes and show the accused her ‘p-ssy.’" (J.A. at 30.) Diaz-Ibarra
pleaded guilty to both counts, and the state court sentenced him to one
year imprisonment for each conviction, with the sentences to be
served concurrently.
On January 24, 1995, an Immigration Judge ordered that Diaz-
Ibarra be deported to Mexico. Diaz-Ibarra was deported the next day,
but between 1995 and 2006, he illegally reentered the United States
at least twice. During his illegal tenures in the United States, Diaz-
Ibarra was convicted of a number of state crimes, including: (1) shop-
lifting (in both Georgia and South Carolina); (2) simple battery (Geor-
gia); (3) possession of cocaine (Virginia); (4) theft (Maryland); and
(5) taking indecent liberties with a child (Virginia).2
On November 1, 2006, the Virginia Department of Corrections
contacted federal immigration agents and informed them that Diaz-
Ibarra was in Virginia’s custody but would soon be released. On
December 7, 2006, a federal grand jury sitting in the Eastern District
of Virginia indicted Diaz-Ibarra, charging him with being found in the
United States after having been deported subsequent to a conviction
for an aggravated felony, in violation of 8 U.S.C.A. §§ 1326(a) and
(b)(2) (West 2005). Diaz-Ibarra pleaded guilty to the indictment with-
out the benefit of a written plea agreement.
Thereafter, a probation officer prepared a presentence report
("PSR") for Diaz-Ibarra. The PSR recommended an advisory Guide-
2
Diaz-Ibarra pleaded guilty to the indecent liberties charge. According
to the presentence report ("PSR") prepared in this case, Diaz-Ibarra
put the 7-year-old female victim on his lap and proceeded to
inappropriately touch her in front and back several times on the
outside of her pants. [He] then attempted to put his hand into the
victim’s pants, at which time she yelled "no" and ran to her
father. [Diaz-Ibarra] then fled the residence.
(J.A. at 70.) Diaz-Ibarra was originally charged with aggravated sexual
battery but pleaded guilty to taking indecent liberties with a child.
4 UNITED STATES v. DIAZ-IBARRA
lines range of 70 to 87 months’ imprisonment. As part of the Guide-
lines range calculation, the probation officer applied a sixteen-level
enhancement to Diaz-Ibarra’s base offense level based on his conclu-
sion that Diaz-Ibarra’s 1992 Georgia convictions for felony attempted
child molestation constituted "crimes of violence" under Guideline
§ 2L1.2(b)(1)(A)(ii).
Both before and at his sentencing hearing, Diaz-Ibarra objected to
the PSR’s characterization of his 1992 Georgia convictions as "crimes
of violence." Although he conceded that the convictions supported an
eight-level enhancement under § 2L1.2(b)(1)(C) because they quali-
fied as "aggravated felonies,"3 Diaz-Ibarra contended that the sixteen-
level enhancement was improper because his offenses "involved no
physical contact of any kind" and were not "violent in nature." (J.A.
at 18.) The district court overruled Diaz-Ibarra’s objection, conclud-
ing that application of the § 2L1.2(b)(1)(A)(ii) enhancement was war-
ranted because Diaz-Ibarra’s 1992 convictions for felony attempted
child molestation qualified as "crimes of violence." Accordingly, the
district court sentenced Diaz-Ibarra to 78 months’ imprisonment,
within the recommended advisory Guidelines range.
Diaz-Ibarra timely appealed. We have jurisdiction pursuant to 28
U.S.C.A. § 1291 (West 2000) and 18 U.S.C.A. § 3742(a) (West 2000
& Supp. 2006).
II.
A.
If the end point of a sentencing proceeding is the district court’s
selection of a "reasonable" sentence, the starting point, as the
Supreme Court recently reiterated, is the correct calculation of the
applicable Guidelines range. Gall v. United States, 128 S. Ct. 586,
596 (2007) (stating that "a district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines
range"). An error in the calculation of the applicable Guidelines
3
Application of an eight-level enhancement would have yielded a
Guidelines range of 30 to 37 months’ imprisonment, much lower than the
range of 70 to 87 months’ imprisonment recommended in the PSR.
UNITED STATES v. DIAZ-IBARRA 5
range, whether an error of fact or of law, infects all that follows at the
sentencing proceeding, including the ultimate sentence chosen by the
district court, and makes a sentence procedurally unreasonable even
under our "deferential abuse-of-discretion standard." Gall, 128 S. Ct.
at 591; Koon v. United States, 518 U.S. 81, 100 (1996) ("A district
court by definition abuses its discretion when it makes an error of
law.").
This appeal focuses on the starting point of Diaz-Ibarra’s sentenc-
ing: he claims that the district court incorrectly calculated his advisory
Guidelines range. Specifically, Diaz-Ibarra contends (as he did below)
that the district court erred in applying the sixteen-level enhancement
under Guideline § 2L1.2(b)(1)(A)(ii) because his 1992 Georgia con-
victions for felony attempted child molestation do not qualify as
"crimes of violence." Of course, whether the district court erred in its
characterization of Diaz-Ibarra’s crimes as "crimes of violence" is a
question of law that we review de novo. United States v. Smith, 359
F.3d 662, 664 (4th Cir. 2004).
B.
For defendants like Diaz-Ibarra who are convicted of unlawfully
entering or remaining in the United States, the Sentencing Guidelines
mandate a sixteen-level offense level enhancement if the defendant
previously was deported, or unlawfully remained in the United States,
after a conviction for a felony that is a "crime of violence." U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The Application Notes to § 2L1.2 define "crime
of violence" as follows:
any of the following: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, statutory rape, sex-
ual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, or 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.
U.S.S.G. § 2L1.2 cmt. 3 (emphasis added).
6 UNITED STATES v. DIAZ-IBARRA
On appeal, as they did below, the parties focus their arguments on
whether Diaz-Ibarra’s 1992 Georgia convictions for felony attempted
child molestation amounted to "sexual abuse of a minor." We think
this focus on "sexual abuse of a minor" is appropriate, for violations
of Ga. Code Ann. § 16-6-4 do not fit within any other specific crimi-
nal conduct listed in the Guidelines definition of "crime of violence."
Our discussion will thus center on whether Diaz-Ibarra’s crimes con-
stituted "sexual abuse of a minor."
To make this determination, we apply the categorical approach set
forth in the Supreme Court’s decision in Taylor v. United States, 495
U.S. 575 (1990). See also Shepard v. United States, 544 U.S. 13, 17-
18 (2005) (describing Taylor’s categorical approach). Under Taylor,
we look only to the statutory definition of the state crime and the fact
of conviction to determine whether the conduct criminalized by the
statute, including the most innocent conduct, qualifies as a "crime of
violence." Taylor, 495 U.S. at 599-601. Taylor does not require that
we strain credulity or apply our "legal imagination" to the statute’s
language to arrive at some violation of the statute that would not qual-
ify as a "crime of violence." Gonzales v. Duenas-Alvarez, 127 S. Ct.
815, 822 (2007). Rather, there must be "a realistic probability, not a
theoretical possibility," that the state would apply its statute to con-
duct that falls outside the definition of "crime of violence." Id.; James
v. United States, 127 S. Ct. 1586, 1597 (2007).
In a "narrow range of cases," however, resort to the statute of
offense and fact of conviction will not confirm the predicate nature
of the state crime. Taylor, 495 U.S. at 602. In those cases where the
state statute is categorically overbroad — that is, where it is evident
from the statutory definition of the state crime that some violations of
the statute are "crimes of violence" and others are not — we apply
what sometimes is referred to as the "modified" categorical approach,
which was also set forth in Taylor and later discussed in Shepard.
Soliman v. Gonzales, 419 F.3d 276, 285 (4th Cir. 2005). Under the
"modified" categorical approach, we determine whether a defendant’s
specific conduct qualifies as a "crime of violence" by looking "to the
terms of the charging document" and, if necessary in a nonjury case,
to "the terms of a plea agreement," the "transcript of colloquy
between judge and defendant," or "some comparable judicial record"
revealing the "factual basis for the plea." Shepard, 544 U.S. at 26. In
UNITED STATES v. DIAZ-IBARRA 7
Shepard, the Supreme Court confirmed that the limits on the type of
evidence that we may consider under the "modified" categorical
approach are of constitutional dimension: they prevent appellate
courts from usurping the jury’s role (and thus violating the defen-
dant’s Sixth Amendment rights) by finding facts about a past crime
under the guise of determining the nature of the crime. Id. at 24-26.
With this framework in place, we turn to consider whether Diaz-
Ibarra’s 1992 Georgia convictions for felony attempted child molesta-
tion constituted "sexual abuse of a minor," and thus qualify as "crimes
of violence" under the Sentencing Guidelines.
C.
Before we can determine whether Diaz-Ibarra’s crimes constituted
"sexual abuse of a minor," however, we must know what "sexual
abuse of a minor" means. Because the Sentencing Guidelines do not
define the phrase, we interpret it by employing the common meaning
of the words that the Sentencing Commission used. See Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)
("Courts properly assume, absent sufficient indication to the contrary,
that Congress intends the words in its enactments to carry their ordi-
nary, contemporary, common meaning." (internal quotation marks
omitted)). Our interpretive task is streamlined here because Diaz-
Ibarra concedes that a violation of former Ga. Code Ann. § 16-6-4 by
definition was "sexual" in nature and involved a minor. He could
hardly argue otherwise; the common meanings of "sexual" — "of or
relating to the sphere of behavior associated with libidinal gratifica-
tion," Webster’s Third New Int’l Dictionary 2082 (1986) — and
"minor" — a word whose meaning is fairly self-evident — cover the
conduct prohibited by the statute, which criminalized child molesta-
tion and applied only if the victim was under 14 years of age. This
leaves us only to determine the meaning of "abuse" as that term is
used in the phrase "sexual abuse of a minor," and then to consider the
phrase as a whole to arrive at its meaning.
We begin with dictionary definitions of the word "abuse." See
United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005)
(per curiam) (looking to dictionary definitions to define "sexual abuse
of a minor"); United States v. Padilla-Reyes, 247 F.3d 1158, 1163
8 UNITED STATES v. DIAZ-IBARRA
(11th Cir. 2001) (same); United States v. Baron-Medina, 187 F.3d
1144, 1147 (9th Cir. 1999) (same). Black’s Law Dictionary defines
"abuse" as "[a] departure from legal or reasonable use"; "misuse";
"[p]hysical or mental maltreatment, often resulting in mental, emo-
tional, sexual or physical injury." Black’s Law Dictionary 10 (8th ed.
2004). Similarly, Webster’s defines "abuse" as "improper or incorrect
use"; "misuse"; "application to a wrong or bad purpose"; "the act of
violating sexually." Webster’s Third New Int’l Dictionary 8. These
definitions reveal that, at the highest level of generality, "abuse"
means misuse or use for an incorrect or bad purpose.
In addition to dictionary definitions, our understanding of "sexual
abuse of a minor" must also take into account recent changes in the
Guidelines definition of "crime of violence." Until 2002, the Applica-
tion Notes to § 2L1.2 defined "crime of violence" as follows:
[A]n 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; and includes murder,
manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including sexual abuse of a minor), robbery, arson,
extortion, extortionate extension of credit, and burglary of a
dwelling.
U.S.S.G. § 2L1.2 cmt. n.1 (2002). Concerned that this "definition
often led to confusion over whether the specified offenses listed in
that definition, particularly sexual abuse of a minor and residential
burglary, also had to include as an element of the offense ‘the use,
attempted use, or threatened use of physical force against the person
of another,’" U.S.S.G. Amendment 658 (2003), in 2003 the Sentenc-
ing Commission amended the definition of "crime of violence" to
read as follows:
any of the following: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, statutory rape, sex-
ual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, or 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. DIAZ-IBARRA 9
U.S.S.G. § 2L1.2 cmt. n.1 (2003).
In amending the definition of "crime of violence," the Sentencing
Commission wanted to "make[ ] clear the enumerated offenses are
always ‘crimes of violence,’ regardless of whether the prior offense
expressly has as an element the use, attempted use, or threatened use
of physical force against the person of another." U.S.S.G. Amend-
ment 658. Thus, it is clear that a crime that otherwise qualifies as
"sexual abuse of a minor" will not escape that designation simply
because it does not require the use, or threatened use, of physical
force against another.
Our discussion to this point has not covered contentious ground,
for the parties generally agree that "sexual abuse of a minor" involves
the misuse or mistreatment of a minor and that it does not require the
use of physical force. They part ways, however, over whether "sexual
abuse of a minor" requires some physical or psychological injury to
the child. Diaz-Ibarra claims that it does; the Government claims that
it does not.4 We agree with the Government.
We begin by noting that the almost irresistible inference to be
drawn from the Sentencing Commission’s amendment to the Guide-
lines definition of "crime of violence" is that "sexual abuse of a
minor" does not require physical injury to the abused. If offenses that
do not involve the use, or threatened use, of force may qualify as
"sexual abuse of a minor," then it stands to reason that "sexual abuse
of a minor" does not per se require physical injury to the abused, even
if such injury is, unfortunately, common.
Quite apart from this strong clue to the meaning of "sexual abuse
of a minor," we think that the ordinary meaning of the phrase "sexual
abuse" confirms that no physical or psychological injury is required
for the abuse to be complete. Employing the common meaning of the
words "sexual" and "abuse," the phrase "sexual abuse" means the use
or misuse of a person for purposes of sexual gratification. The clear
4
Diaz-Ibarra does not claim that "sexual abuse of a minor" requires
physical contact with the minor. Indeed, "the modifier ‘sexual’ does not
limit the phrase’s scope to abuse of the physical variety." United States
v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001).
10 UNITED STATES v. DIAZ-IBARRA
focus of the phrase is on the intent of the abuser — sexual gratifica-
tion — not on the effect on the abused. However one styles it, "sexual
abuse" is an intent-centered phrase; the misuse of the child for sexual
purposes completes the abusive act.
We are not alone in this conclusion. In Baron-Medina, the Ninth
Circuit defined "sexual abuse of a minor" as "[t]he use of young chil-
dren for the gratification of sexual desires." 187 F.3d at 1147. In
doing so, the court held that the effect on the victim is irrelevant, id.
at 1147, and that "the use of young children as objects of sexual grati-
fication . . . constitutes maltreatment, no matter its form," id. Like-
wise, in Padilla-Reyes, the Eleventh Circuit, focusing on the
perpetrator’s intent, defined "sexual abuse of a minor" as "a perpetra-
tor’s physical or nonphysical misuse or maltreatment of a minor for
a purpose associated with sexual gratification." 247 F.3d at 1163.
Although the court noted that sexual abuse "usually results in psycho-
logical injury for the victim, regardless of whether any physical injury
was incurred," id. (emphasis added), it did not engraft such injury into
the definition of "sexual abuse of a minor." These courts share our
view that once a defendant misuses the minor with the intent to
achieve sexual gratification, the act of abuse is complete, irrespective
of whether the minor suffered some physical or psychological injury.
The contrary conclusion — that "sexual abuse of a minor" requires,
at a minimum, some psychological injury to the child —would
enmesh the courts in thorny issues of psychology and perhaps insulate
some of the most reprehensible forms of sexual molestation of chil-
dren from enhancement under § 2L.1(b)(1)(A)(ii). First, it would be
difficult to determine in many cases whether a sexual crime necessar-
ily results in psychological injury to the child. Consider, for instance,
the molester who chooses as his victim a very young child. The child
may be "too young to understand the nature of [the molester’s]
advances," Baron-Medina, 187 F.3d at 1147, but is the child too
young to suffer some minimal psychological injury?5 We are confi-
dent that the Sentencing Commission did not intend the application
of § 2L1.2(b)(1)(A)(ii) to turn on whether judges have a subscription
5
We think it reasonable to infer some psychological injury to the child
from the act of sexual abuse, but this may not be in keeping with the sci-
entific data.
UNITED STATES v. DIAZ-IBARRA 11
to the American Journal of Psychology, as we are confident that the
Commission did not intend application of the enhancement to depend
on whether the Government or the defendant wins in a battle of psy-
chology experts.
This illustration also highlights another conceptual problem with
requiring some injury to the child, be it physical or psychological, for
"sexual abuse of a minor" to have occurred. Such a requirement
would potentially exonerate certain defendants from application of
§ 2L1.2(b)(1)(A)(ii)’s sixteen-level enhancement simply because they
chose to commit their sexually-exploitive act in the presence of or to
a child too young to understand the nature of the defendant’s per-
verted act, and thus perhaps too young to suffer some psychological
injury. In our view, this result is more than just anomalous; it is
absurd. Instead, we believe that "a sexual abuser is guilty of ‘sexual
abuse of a minor’ even if he chooses very young victims, molests
sleeping children, or otherwise conceals his lewd intent from the vic-
tims." United States v. Baza-Martinez, 481 F.3d 690, 692 (9th Cir.
2007) (Graber, J., dissenting from the denial of rehearing en banc).
We recognize, as Diaz-Ibarra points out, that in United States v.
Baza-Martinez, 464 F.3d 1010 (9th Cir. 2006), another panel of the
Ninth Circuit held that physical or psychological injury to the child
is required for "sexual abuse of a minor" to have occurred.6 Id. at
1017. This ruling provoked a vigorous dissent from the denial of
rehearing en banc that faulted the Baza-Martinez court for failing to
6
It appears that the Fifth Circuit also requires some physical or psycho-
logical injury to the child for "sexual abuse of a minor" to have occurred.
In United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005), the
court, citing to the Ninth Circuit’s definition of "sexual abuse of a minor"
in United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999),
and to the Eleventh Circuit’s decision in Padilla-Reyes, 247 F.3d at
1163, held that "[g]ratifying or arousing one’s sexual desires in the actual
or constructive presence of a child is sexual abuse of a minor." Izaguirre-
Flores, 405 F.3d at 275. We agree with this definition. Earlier in the
opinion, however, the Izaguirre-Flores court cited approvingly to an ear-
lier Fifth Circuit decision holding that "‘abuse’ involve[s] either physical
or psychological harm to the minor." Id. To the extent that the Fifth Cir-
cuit defines "sexual abuse of a minor" to require at least some psycholog-
ical injury to the child, we disagree with the court’s definition.
12 UNITED STATES v. DIAZ-IBARRA
follow the circuit precedent of Baron-Medina and for ignoring the
holdings of the Supreme Court and other circuits. Baza-Martinez, 481
F.3d at 690-94 (Graber, J., dissenting from the denial of rehearing en
banc). We, of course, are not bound by either Baron-Medina or Baza-
Martinez, but we believe that the Baron-Medina court got it right.
We therefore conclude, in keeping with Baron-Medina and the
Eleventh Circuit’s decision in Padilla-Reyes, that "sexual abuse of a
minor" means the "perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual gratifi-
cation." Padilla-Reyes, 247 F.3d at 1163.
D.
Having arrived at the meaning of "sexual abuse of a minor," we
turn, as we must, to our application of Taylor’s categorical approach
in order to determine whether a violation of former Ga. Code Ann.
§ 16-6-4 categorically comes within the definition of that phrase. This
approach requires us to consider whether the full range of conduct
covered by the statutory language, including the most innocent con-
duct proscribed by the statute, qualifies as "sexual abuse of a minor."
United States v. Pierce, 278 F.3d 282, 288 (4th Cir. 2002)(stating
that, under the categorical approach, we "must examine the offense as
a category of criminal conduct defined by the statute and not ‘the par-
ticular facts underlying [the defendant’s] convictions’" (quoting Tay-
lor, 495 U.S. at 600) (emphasis in original)). Only if we determine
that the statute is categorically overbroad, that is, if the statute covers
some crimes that are "crimes of violence" and others that are not, can
we apply the "modified" categorical approach and look beyond the
statute of conviction to the charging documents in order to determine
whether a crime was a "crime of violence." Taylor, 495 U.S. at 602.
At the time of Diaz-Ibarra’s convictions, Ga. Code Ann. § 16-6-4
provided that "[a] person commits the offense of child molestation
when he does any immoral or indecent act to or in the presence of or
with any child under the age of 14 years with the intent to arouse or
satisfy the sexual desires of either the child or the person." Ga. Code
Ann. § 16-6-4. As noted above, Diaz-Ibarra concedes that the statute
facially encompasses both the "sexual" and "minor" components of
the phrase "sexual abuse of a minor." The only question that remains
UNITED STATES v. DIAZ-IBARRA 13
is whether the statute categorically involves "abuse." We hold that it
does.
Georgia courts have "strictly construed" § 16-6-4 to require that the
molestative act occur in the presence of the child and, it appears, that
the child be aware of the perpetrator’s presence. See, e.g., Vines v.
State, 499 S.E.2d 630, 631 (Ga. 1998) (holding that "the victim and
the accused must be together in order for the crime of ‘child molesta-
tion’ to be committed"). For example, in Rainey v. State, 584 S.E.2d
13 (Ga. Ct. App. 2003), the defendant stood in the window of his
house nude from the waist down, moved his body in a jerking motion,
and began to masturbate as the minor victim walked home from
school on the street below. Id. at 14. When the victim arrived at her
home across the street, she went to the window to confirm what she
had seen. The defendant noticed the victim looking outside, stood up,
and continued his masturbatory act. Id. Construing the statute
"strictly," the Georgia Court of Appeals upheld the defendant’s con-
viction under § 16-6-4, holding that the statute is violated "where the
child can see the person and the person is aware of the presence of
the child" when he commits his immoral or indecent act. Id.
Similarly, in Arnold v. State, 545 S.E.2d 312, 314 (Ga. Ct. App.
2001), the defendant stood in his apartment doorway and asked an 8-
year-old girl who lived across the hallway whether she wanted "to see
something." Id. at 314. When the girl responded in the affirmative, the
defendant put his hand on his genitals, unbuckled his belt, and began
to unzip his pants. The girl averted her eyes as the defendant exposed
his penis to her. Id. The Georgia Court of Appeals affirmed the defen-
dant’s conviction under § 16-6-4, concluding that the defendant’s "act
of intentionally exposing his penis in the child’s presence to satisfy
his own sexual desires was sufficient to support the jury’s verdict."
Id. at 315-16; see also Grimsley v. State, 505 S.E.2d 522 (Ga. Ct.
App. 1998) (upholding convictions under § 16-6-4 when the defen-
dants, a married couple, entered a living room where five children
ages 9 to 14 were playing video games and had sexual intercourse in
front of the children); Stroeining v. State, 486 S.E.2d 670 (Ga. Ct.
App. 1997) (upholding defendant’s conviction under § 16-6-4 for
forcing his 12-year-old stepdaughter to watch a pornographic video
with him). Conversely, in Vines, the Supreme Court of Georgia
reversed the defendant’s conviction under § 16-6-4 because the defen-
14 UNITED STATES v. DIAZ-IBARRA
dant’s only contact with his victim was by telephone. 499 S.E.2d at
632.
These cases are typical of the kind of conduct to which Georgia
Code Ann. § 16-6-4 is applied: a defendant who is in a child’s pres-
ence must commit some immoral or indecent act with the intent to
gratify his own sexual desires or the desires of the child (and even if
the latter, the strong implication is that the defendant himself receives
some sexual gratification from the child’s arousal), and the child must
be at least minimally aware of the defendant’s presence. Accordingly,
there simply is not "a realistic probability" that the state would apply
Ga. Code Ann. § 16-6-4 to conduct that falls outside our definition of
"sexual abuse of a minor." Duenas-Alvarez, 127 S. Ct. at 822.
We therefore hold, looking only to the statutory definition of the
offense and the fact of Diaz-Ibarra’s conviction, that a violation of
former Ga. Code Ann. § 16-6-4 constituted "sexual abuse of a minor"
and in turn qualifies as a "crime of violence" under Guideline
§ 2L1.2(b)(1)(A)(ii).7
7
Even if we were to conclude that a violation of former Ga. Code Ann.
§ 16-6-4 does not categorically constitute "sexual abuse of a minor,"
affirmance of Diaz-Ibarra’s sentence would still be in order. Applying
the so-called "modified" categorical approach, his 1992 Georgia convic-
tions undoubtedly qualify as "sexual abuse of a minor." As described
above, when a state statute does not on its face confirm the predicate sta-
tus of a state crime, we are permitted to examine "the terms of the charg-
ing document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record" to
determine whether the state conviction qualifies as a "crime of violence."
Shepard v. United States, 544 U.S. 13, 26 (2005).
The state-court indictment against Diaz-Ibarra confirms the predicate
nature of his convictions. On two occasions, Diaz-Ibarra offered a ciga-
rette to girls under 14 years of age if they would pull down their pants
and show him their "p-ssy." (J.A. at 30.) This clearly amounted to misuse
or maltreatment of a minor for a purpose associated with sexual gratifica-
tion. Diaz-Ibarra argues that his victims may not have understood that
"p-ssy" is a slang term for the vagina, but even assuming that this is true,
the girls certainly understood that Diaz-Ibarra was asking them to pull
their pants down.
UNITED STATES v. DIAZ-IBARRA 15
III.
In sum, we hold that "sexual abuse of a minor" means a defen-
dant’s physical or nonphysical misuse or maltreatment of a minor for
a purpose associated with sexual gratification. In light of this defini-
tion, a violation of former Ga. Code Ann. § 16-6-4 categorically con-
stituted "sexual abuse of a minor" because every violation of the
statute necessarily involved a defendant’s commission of an immoral
or indecent act in a child’s presence with the intent to arouse either
the defendant or the child. Accordingly, Diaz-Ibarra’s sentence is
AFFIRMED.