F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-2218
(D . N.M .)
FRANCISCO SERNA-GOM EZ, also (D.Ct. No. CR-04-2225 M CA)
known as Jose Garcia, also known as
Fernando Larara, also known as Jesus
Garcia,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Francisco Serna-Gomez pled guilty to illegal reentry into the
United States of a deported alien previously convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). He now appeals his seventy-
month sentence, contending the district court erred in characterizing his prior
conviction as a “crime of violence” and failing to reduce his sentence on grounds
he reentered the United States for the purpose of securing a better life for his
children. W e exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291 and affirm M r. Serna-Gomez’s conviction and sentence.
On September 7, 2004, M r. Serna-Gomez was arrested for illegally entering
the United States after deportation to M exico. Following his guilty plea to
reentry of a deported alien previously convicted of an aggravated felony, a
probation officer prepared a presentence report calculating his base offense level
at eight under U.S. Sentencing Guidelines M anual (USSG ) § 2L1.2(a) and
applying a sixteen-level upward adjustment based on his prior Illinois conviction
of aggravated criminal sexual abuse of a minor, which the probation officer
categorized as a crime of violence pursuant to USSG § 2L1.2(b)(1)(A). After
applying a three-level downward adjustment for acceptance of responsibility and
factoring in M r. Serna-Gomez’s criminal history at Category V, the probation
officer calculated M r. Serna-Gomez’s sentencing range at seventy to eighty-seven
months imprisonment.
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Based on the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), which held the sentencing guidelines are only advisory in nature,
M r. Serna-Gomez requested a deviation from the guideline range on grounds he
returned to the United States to provide a living for the benefit of his children, he
was unaware of the illegality or penalties of reentering the United States after his
deportation, and his prior state conviction did not constitute a “crime of violence”
for the purpose of a sixteen-level upward adjustment. M r. Serna-Gomez asserted
his prior conviction should not be categorized as a “crime of violence” because:
1) no presumption of violent intent, or mens rea, exists in the applicable Illinois
statute; 2) he was not aware his conduct was against the law; and 3) the encounter
was consensual, given his assertion the parents of the under-aged girl gave him
permission to see her, and he later married her and fathered her child. 1
The district court adopted the findings and recommendations in the
presentence report, concluding M r. Serna-Gomez’s prior conviction for
aggravated criminal sexual abuse was a “crime of violence” and that while the
sentencing guidelines are only advisory, they provided appropriate guidance in
the instant case. The district court determined a sentence at the low end of the
1
W hile the record on appeal does not contain any evidence supporting M r.
Serna-Gomez’s claim he married the minor girl and fathered their child, on appeal
he has provided a copy of their marriage certificate showing he married her
several years after his arrest for his aggravated sexual abuse of her.
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sentencing range at seventy months satisfied the considerations provided in 18
U.S.C. § 3553, including the nature and circumstances of the offense, M r. Serna-
Gomez’s history and characteristics, the seriousness of the crime, respect for the
law, just punishment for the offense, adequate deterrents to future criminal
conduct, and protection of the public from further criminal conduct, while also
providing M r. Serna-Gomez with needed medical, vocational, social, or
educational training.
On appeal, M r. Serna-Gomez continues to argue the Illinois offense he pled
guilty to is not a “crime of violence” because it requires neither intent to use or
threaten physical force nor that the sexual contact be nonconsensual. In support,
he relies on Leocal v. Ashcroft, in which the Supreme Court held an alien’s
conviction under Florida law, which required no mens rea for driving under the
influence of alcohol and causing serious bodily injury in an accident, was not a
“crime of violence” under 18 U.S.C. § 16 of the Comprehensive Crime Control
Act, which requires the “use of physical force” against another rather “than the
merely accidental or negligent conduct involved in a DUI offense.” 543 U.S. 1,
4-5, 7, 9-11, 13 (2004). M r. Serna-Gomez also renews his claim a seventy-month
sentence, enhanced as a result of his prior Illinois conviction, is unreasonable for
the mere offense of reentry after deportation and because he reentered the country
for the worthy cause of providing economic support for his children.
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In this case, the applicable sentencing guideline suggests the base offense
level for unlaw fully entering or remaining in the United States is eight and should
be increased sixteen levels for a prior “crime of violence.” See USSG
§ 2L1.2(a)(b)(1)(A)(ii). As M r. Serna-Gomez points out, pursuant to Booker, the
sentencing guidelines are now advisory, rather than mandatory, but continue to be
a factor the district court must consider in imposing a sentence. See United States
v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). W e review de novo
a district court’s determination a prior offense qualifies as a “crime of violence”
under U SSG § 2L1.2(b)(1)(A)(ii). See United States v. Torres-Ruiz, 387 F.3d
1179, 1180-81 (10th Cir. 2004). “In interpreting a guideline, we look at the
language in the guideline itself, as w ell as the ‘interpretative and explanatory
comm entary to the guideline’ provided by the Sentencing Commission.” Id. at
1181 (quotation marks and citation omitted). As an aid in determining whether an
offense qualifies as a “crime of violence,” a commentary note to § 2L1.2 defines a
“crime of violence” as explicitly including the offense of “sexual abuse of a
minor” 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.” USSG § 2L1.2 cmt. n.1(B)(iii). W hen a defendant contests the
characterization of his prior offense as a “crime of violence” under the applicable
guidelines, we follow a categorical approach in which we look “only to the fact of
the conviction and the statutory definition of the prior offense” for the purpose of
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examining sources of undisputed information, rather than engaging in a fact-
finding inquiry on a prior offense previously adjudicated. United States v. Austin,
426 F.3d 1266, 1270 (10th Cir. 2005), cert. denied, 126 S. Ct. 1385 (2006). Only
if the statute in question is ambiguous, because it reaches conduct both violent
and nonviolent, do we look to the charging paper, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented. Id. at 1271 (quotation marks and citation omitted).
In this case, M r. Serna-Gomez pled guilty to the Illinois offense of
aggravated criminal sexual abuse, in violation of Chapter 720 Illinois Compiled
Statutes § 5/12-16(d). In Illinois, “aggravated criminal sexual abuse” is defined,
in relevant part, as “an act of sexual penetration or sexual conduct with a victim
who was at least 13 years of age but under 17 years of age and the accused was at
least 5 years older than the victim.” Ch. 720 Ill. Comp. Stat. § 5/12-16(d).
After reviewing the unambiguous language in the applicable Illinois statute,
together with the advisory criteria in the sentencing guidelines and our case law,
it is clear M r. Serna-Gomez cannot prevail in arguing his prior offense was not a
“crime of violence” because the statute did not include the mens rea, or intent to
use or threaten force. His argument is plainly precluded by our decision in
United States v. M unguia-Sanchez, in w hich we held an offense qualifies as a
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“crime of violence” if it involves either the use of force or one of the specifically
enumerated offenses under commentary note 1(B)(iii), which include the offense
of “sexual abuse of a minor.” 365 F.3d 877, 879-80 (10th Cir.), cert. denied, 543
U.S. 896 (2004). Therefore, even though the Illinois statute at issue did not
include as an element the intent to use or threaten force, M r. Serna-G omez’s
conduct falls squarely under the specifically enumerated offense of “sexual abuse
of a minor” under the applicable commentary note and, thus, qualifies as a “crime
of violence.” In addition, M r. Serna-Gomez’s attempt to qualify his offense as
one involving consensual sex is an impermissible effort to reconstruct his plea
after the fact. The applicable Illinois statute does not require nonconsensual
sexual contact for a conviction. To require such a finding now would not only
contravene that statute but require an impermissible fact-finding inquiry into a
prior conviction. See Austin, 426 F.3d at 1280. M oreover, we have held “a
conviction for sexual assault on a child constitutes a crime of violence [under
§ 2L1.2(b)(1)(A)(ii)] regardless of the victim’s alleged consent.” M unguia-
Sanchez, 365 F.3d at 878. W hile M r. Serna-Gomez relies on Leocal v. Ashcroft to
suggest his prior offense does not constitute a “crime of violence,” that case 1)
involved the prior offense of driving under the influence, which is not a
specifically enumerated offense under commentary note 1(B)(iii); 2) concerned
negligent or accidental conduct not applicable to M r. Serna-Gomez’s offense of
sexual abuse of a minor; and 3) applied different federal and state statutes which
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are not at issue here. See generally 543 U.S. at 4-5, 7, 9-11, 13.
Having determined M r. Serna-Gomez’s prior offense constituted a “crime
of violence,” w e turn to M r. Serna-Gomez’s claim his seventy-month sentence is
unreasonable, given the underlying crime merely involved illegal reentry and the
fact he reentered the United States for the purpose of benefitting his children.
Since Booker, we review for reasonableness the sentence imposed and have
determined a presumption of reasonableness attaches to a sentence, like here,
which is within the correctly-calculated sentencing guideline range. See Kristl,
437 F.3d at 1053-54. A defendant may rebut the presumption attached to a
sentence within the guideline range by demonstrating the sentence is unreasonable
when viewed against the factors delineated in 18 U.S.C. § 3553, id., which
include consideration of whether the sentence imposed reflects the seriousness of
the offense, promotes respect for the law, provides just punishment, affords
adequate deterrence to criminal conduct, and protects the public from further
crimes of the defendant. 18 U.S.C. § 3553(a)(2)(A)-(C). In addition, the
sentencing guidelines advise “family ties and responsibilities ... are not relevant
in determining whether a sentence should be below the applicable guideline
range.” U SSG § 5H1.6. M ore specifically, we have determined family
responsibilities are a discouraged factor in considering a downward adjustment,
which the district court should consider only in the most extraordinary cases. See
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United States v. M cClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003).
In this case, M r. Serna-Gomez entered the country illegally after being
deported, following his guilty plea to aggravated sexual abuse of a minor —
neither of which is a trifling offense. In addition, M r. Serna-Gomez has not
directed us to any fact that renders the application of the guidelines inappropriate
or egregious. The fact he later married the minor victim he sexually abused does
not mitigate the fact he committed the felony offense of aggravated sexual abuse
of a m inor, to w hich he pled guilty. In addition, M r. Serna-Gomez has not shown
why he should be treated differently than others who, like him, illegally reentered
the country after deportation, or why his family responsibilities present an
extraordinary case deserving of a downward adjustment.
Finally, regardless of whether M r. Serna-Gomez did not understand his
reentry into the U nited States w as illegal or the consequences of his reentry, we
have held “nothing more than a showing of general intent is required,” and “the
government need not show that [the] defendant willfully and knowingly engaged
in criminal behavior, but only that the defendant’s acts were willful and knowing
— that [he] willfully and know ingly reentered the U nited States and that he did so
without the Attorney General’s permission.” United States v. Gutierrez-Gonzalez,
184 F.3d 1160, 1165 (10th Cir. 1999) (quotation marks and citation omitted).
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Given M r. Serna-Gomez pled guilty to illegal reentry, which includes an intent to
willfully and knowingly reenter the country, his argument he did not understand
his reentry was criminal or involved penalties is irrelevant.
Under the circumstances presented, it was not unreasonable for the district
court to determine a sentence imposed at the bottom of the applicable guideline
range sufficiently reflected the factors or considerations in 18 U.S.C. § 3553, and
M r. Serna-G omez has not otherwise demonstrated his sentence is unreasonable
when viewed against these factors.
For these reasons, we A FFIRM M r. Serna-Gomez’s conviction and
sentence.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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