United States Court of Appeals
For the First Circuit
No. 01-1671
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR ALONSO LONDONO-QUINTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Timothy J. Morgan for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief for
appellee.
May 6, 2002
* Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Defendant-appellant Oscar Alonso
Londono-Quintero, a native of Colombia, was lawfully admitted into
the United States in 1984. He resided in Rhode Island from 1984 to
1991 and then in Florida until he was deported in 1998. In 1999,
he illegally returned to the United States. On February 6, 2001,
he pled guilty to a federal indictment charging him with illegal
reentry into the United States after having been deported, in
violation of 8 U.S.C. § 1326. At sentencing, the district court
determined that Londono-Quintero's prior conviction under Florida
law for lewd and lascivious assault on a child constituted an
"aggravated felony," thus warranting a substantial increase in
sentence under the federal sentencing guidelines. Accordingly, the
district court sentenced Londono-Quintero to 37 months'
imprisonment followed by three years of supervised release.
Challenging the court's characterization of the Florida conviction
as an aggravated felony, Londono-Quintero appealed. We affirm.
I.
On September 7, 1994, Londono-Quintero pled guilty in
Florida state court to a two-count information charging that, on or
about March 9, 1994, he committed the crime of lewd and lascivious
assault on a child, in violation of Fla. Stat. Ann. § 800.04
(1994). Although the crime carried a maximum penalty of 15 years
in prison, see Fla. Stat. Ann. § 775.082(3)(c) (1994), Londono-
Quintero's actual sentence was five years of probation. Londono-
Quintero was subsequently deported in 1998. In October 1999, he
illegally reentered the United States through Mexico. He was
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arrested on November 10, 2000, by the Immigration and
Naturalization Service.
On December 20, 2000, a grand jury in the District of
Rhode Island returned a one-count indictment charging that Londono-
Quintero was an alien who, after having previously been arrested
and deported from the United States, knowingly entered and was
found in Rhode Island without the express consent of the Attorney
General to reapply for admission into the United States, in
violation of 8 U.S.C. § 1326. Pursuant to a written plea
agreement, Londono-Quintero pled guilty to the charge on February
6, 2001.
At sentencing, the court found that Londono-Quintero's
base offense level was 8 under U.S.S.G. § 2L1.2(a). The court
determined, over Londono-Quintero's objection, that his prior
conviction under Florida law for lewd and lascivious assault on a
child constituted an aggravated felony, thus warranting a 16-level
sentencing enhancement under the relevant sentencing guideline in
effect at the time. See § 2L1.2(b)(1)(A) (2000). In doing so, the
court stated:
Defendant has objected to the presentence report claiming
those 16 points shouldn't have been added, and that's
where the dispute is in this case, was his conviction in
Florida in 1994 for an aggravated felony. It's an
aggravated felony if he was guilty of a crime the
equivalent of sexual abuse of a minor. In Florida, he
was charged with lewd and lascivious assault on a child.
Assault - that's a key word. He pleaded guilty,
according to his own admission, and he received five
years of probation with certain conditions. The statute
under which he was convicted is broad, and it can involve
conduct upon a minor, or in the presence of a minor. In
order to determine what conduct was involved here the
Court must look to the information, the charge. The
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charge is assault on a child. That's what he pleaded
guilty to, and it was a lewd and lascivious assault. In
other words, it involved sexual conduct. So, in effect,
what he was convicted of, what he pleaded guilty to, was
a sexual assault on a minor. That is an aggravated
felony under federal law. It's not necessary for the
Court to get in the specific facts of the particular
conduct. His plea to that particular charge is
sufficient to determine that it was an aggravated felony.
Londono-Quintero also received a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. He requested
a downward departure on grounds that he satisfied the requisite
elements of U.S.S.G. § 2L1.2, Application Note 5 (2000).1 That
departure request, however, was denied.
Accordingly, the applicable Criminal History Category was
I, and the total offense level was 21, yielding a sentencing range
under U.S.S.G. § 5A of 37 to 46 months' imprisonment. The court
sentenced defendant to 37 months of imprisonment to be followed by
three years of supervised release with the deportation condition.2
1
At the time of sentencing, Application Note 5 provided:
Aggravated felonies that trigger the adjustment from
subsection (b)(1)(A) vary widely. If subsection
(b)(1)(A) applies, and (A) the defendant has
previously been convicted of only one felony
offense; (B) such offense was not a crime of
violence or firearms offense; and (C) the term of
imprisonment imposed for such offense did not exceed
one year, a downward departure may be warranted
based upon the seriousness of the aggravated felony.
U.S.S.G. § 2L1.2, cmt. n.5 (2000).
2
The deportation condition is as follows:
[U]pon completion of the term of imprisonment, the
defendant is to be surrendered to a duly-authorized
immigration official for deportation in accordance with
the established procedures provided by the Immigration
and Naturalization Act, 8 U.S.C. §§ 1101, et seq. As a
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II.
Londono-Quintero argues on appeal that the district court
erred when it concluded that his 1994 conviction constituted an
"aggravated felony" under the federal sentencing guidelines. He
also claims that the sentencing court erred in its refusal to grant
his motion for a downward departure.
A. The "Aggravated Felony" Determination
At the time of Londono-Quintero's sentencing, the
Sentencing Guidelines imposed a 16-level enhancement in illegal
reentry cases on offenders with a prior conviction for an
"aggravated felony." U.S.S.G. § 2L1.2(b)(1)(A)(2000). The
question of what constitutes an "aggravated felony" for § 2L1.2
purposes is controlled by 8 U.S.C. § 1101(a)(43). See U.S.S.G.
§ 2L1.2, cmt. n.1. ("For purposes of [§ 2L1.2] . . . '[a]ggravated
felony' is defined at 8 U.S.C. § 1101(a)(43) without regard to the
date of conviction of the aggravated felony."). Our review of such
determinations is de novo. See United States v. Martinez-Garcia,
268 F.3d 460, 464 (7th Cir. 2001) (reviewing de novo what qualifies
as "aggravated felony" under § 2L1.2).
Section 1101(a)(43) provides in relevant part that the
term "aggravated felony" means, inter alia, "murder, rape, or
sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). The district
further condition of supervised release, if ordered
deported, defendant shall remain outside the United
States during that time.
United States v. Ramirez, 948 F.2d 66, 68 (1st Cir. 1991); accord
United States v. Sanchez, 923 F.2d 236, 238 (1st Cir. 1991).
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court concluded that Londono-Quintero's prior conviction qualified
as "sexual abuse of a minor" and therefore constituted an
"aggravated felony" under § 2L1.2(b)(1)(A). On appeal, Londono-
Quintero asserts that the district court reached that conclusion by
improperly considering facts underlying his prior conviction,
contrary to the "categorical approach" set forth by the Supreme
Court in Taylor v. United States, 495 U.S. 575, 602 (1990). We
explore that contention.
1. The Taylor Categorical Approach3
Under the Taylor approach, a sentencing court should
"look only to the fact of conviction and the statutory definition
of the prior offense" to determine whether a prior conviction
qualifies as a predicate offense for sentencing enhancement
purposes. Id. at 602; see also United States v. Harris, 964 F.2d
1234, 1235 (1st Cir. 1992). Where the statutory definition
encompasses both predicate and non-predicate offenses, however, it
may be necessary to go beyond the statute and the fact of
conviction. See Harris, 964 F.2d at 1235; see also United States
v. Sacko, 178 F.3d 1, 3 (1st Cir. 1999). In those situations, a
sentencing court may look to "the indictment or information and
3
We note that courts have typically applied the Taylor
categorical approach to determine what constitutes a "violent
felony" for sentencing purposes under the career offender statute.
We see no reason, however, why the Taylor approach should not apply
with equal force to "aggravated felony" determinations under
§ 2L1.2(b)(1)(A). Cf. Martinez-Garcia, 268 F.3d at 464-466 (7th
Cir. 2001) (employing Taylor-esque categorical approach in
determining whether offense to which defendant pled guilty
constituted "aggravated felony" under § 2L1.2). Nor do the parties
object to the application of Taylor in this case.
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jury instructions in order to discern which type of crime the
offender was convicted of perpetrating." Sacko, 178 F.3d at 3
(citing Taylor, 495 U.S. at 602). If the charging papers simply
contain the boilerplate statutory formulation and there are no jury
instructions because of a guilty plea, it is appropriate for the
sentencing court to
look to the conduct in respect to which the
defendant was charged and pled guilty, not
because the court may properly be
interested . . . in the . . . nature of that
particular conduct, but because that conduct
may indicate that the defendant and the
government both believed that the [predicate]
crime . . . rather than the [non-predicate]
crime . . . was at issue.
Harris, 964 F.2d at 1236. The inquiry should focus on "the meaning
of the defendant's guilty plea" -- that is, whether the defendant's
plea constitutes an admission to the predicate offense under a
statute that encompasses both predicate and non-predicate offenses.
United States v. Shepard, 231 F.3d 56, 66 (1st Cir. 2000).
2. Analysis
We begin our analysis with the language of the statute to
which Londono-Quintero pled guilty, Fla. Stat. Ann. § 800.04
(1994):4
A person who:
4
The statute appears to have been amended twice since
defendant's 1994 offense -- once in 1999, and again in 2000. Fla.
Stat. Ann. § 800.04 (2001) (Historical and Statutory Notes). Since
Defendant's charged conduct and guilty plea occurred in 1994, we
concern ourselves only with the version of the statute in effect at
that time.
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(1) Handles, fondles, or assaults any child
under the age of 16 years in a lewd,
lascivious, or indecent manner;
(2) Commits actual or simulated sexual
intercourse, deviate sexual intercourse,
sexual bestiality, masturbation,
sadomasochistic abuse, actual lewd exhibition
of the genitals, or any act or conduct which
simulates that sexual battery is being or will
be committed upon any child under the age of
16 years or forces or entices the child to
commit any such act;
(3) Commits an act defined as sexual battery
under s. 794.011(1)(h) upon any child under
the age of 16 years; or
(4) Knowingly commits any lewd or lascivious
act in the presence of any child under the age
of 16 years, without committing the crime of
sexual battery, commits a felony of the second
degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
Section 800.04 thus criminalizes, inter alia, sexual offenses that
do not rise to the level of rape or sexual battery and which are
committed against children under the age of sixteen. It encompasses
acts involving physical contact between the perpetrator and child
victim, as well as acts that do not involve any such physical
contact.
Londono-Quintero argues that the charged offense under
Florida law does not constitute "sexual abuse of a minor" within
the meaning of 8 U.S.C. § 1101(a)(43)(A). Albeit difficult to
decipher, his argument seems to rest on the following logic: (a)
given a sentence that involved no incarceration, he must have been
charged only as a "flasher" under § 800.04's clause (4), which
explicitly provides that the crime may be committed "in the
presence" of the child without committing the crime of "sexual
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battery;" (b) "sexual battery" under Florida St. Ann. § 827.0715 --
a crime with which he was not charged -- is virtually synonymous
with the "sexual act[s]" prohibited under 18 U.S.C. § 2243 (1994),6
which criminalizes "sexual abuse of a minor or ward" within the
special maritime and territorial jurisdiction of the United States;
(c) because both 18 U.S.C. § 2243 and 8 U.S.C. § 1101(a)(43)(A) use
the phrase "sexual abuse of a minor," that phrase must mean the
same thing under both statutes; (d) Congress specifically defined
"sexual abuse of a minor" for purposes of § 2243, and the
definition does not include the flasher-type crime underlying his
Florida § 800.04 conviction;7 and (e) therefore, the crime with
5
Section 827.071(e) defines sexual battery as:
Oral, anal or vaginal penetration by, or union with, the
sexual organ of another or the anal or vaginal
penetration of another by any other object; however,
"sexual battery" does not include an act done for a bona
fide medical purpose.
6
To be sure, Londono-Quintero refers us in his brief to
8 U.S.C. § 2243. Since that section does not exist in the Code, we
assume that his intention was to refer us to 18 U.S.C. § 2243,
which provides in relevant part:
§ 2243. Sexual abuse of a minor or ward
(a) Of a minor.--Whoever, in the special maritime and
territorial jurisdiction of the United States or in a
Federal prison, knowingly engages in a sexual act with
another person who--
(1) has attained the age of 12 years but has not attained
the age of 16 years; and
(2) is at least four years younger than the person so
engaging;
or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both.
7
A "sexual act" that constitutes "sexual abuse of a minor"
under § 2243 is defined in 18 U.S.C. § 2246(2) as:
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which he was charged under Florida law does not constitute "sexual
abuse of a minor" within the meaning of § 1101(a)(43)(A).
We reject this logic for two reasons. First, as we shall
explain further, the allegations of the information precluded any
argument that Londono-Quintero was only charged under § 800.04's
clause (4) as a flasher who never assaulted the child victim.
Second, many of the offense descriptions in § 1101(a)(43) include
cross-references to other Code sections. However, there is no
cross-reference in subsection (A) to another federal statute for
the definition of "sexual abuse of a minor." In the absence of an
explicit statutory cross-reference in § 1101(a)(43)(A), we find
Londono-Quintero's reliance on § 2243 to be misplaced. Thus, we
reject his efforts to import a restrictive definition of "sexual
abuse of a minor" into § 1101(a)(43)(A), which designates that
offense as an "aggravated felony."
In the absence of a statutory definition of "sexual abuse
of a minor," we rely instead on the plain meaning of that phrase.
See Smith v. United States, 508 U.S. 223, 228 (1993) ("When a word
is not defined by statute, we normally construe it in accord with
(A) contact between the penis and the vulva or the penis
and the anus, and for purposes of this subparagraph
contact involving the penis occurs upon penetration,
however, slight;
(B) contact between the mouth and the penis, the mouth
and the vulva, or the mouth and the anus; or
(C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by any
object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person.
18 U.S.C. § 2246(2).
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its ordinary or natural meaning."). According to Random House
Webster's, "sexual" is defined as, inter alia, "of, pertaining to,
or for sex." Random House Webster's Unabridged Dictionary 1755 (2d
ed. 1987). The definitions of "abuse" include, inter alia, "to use
wrongly or improperly," or "misuse." Id. at 9. The phrase "sexual
abuse" is defined separately as "rape, sexual assault, or sexual
molestation." Id. at 1755.
Without settling on any particular definition, we
nevertheless read the plain meaning of "sexual abuse of a minor" in
§ 1101(a)(43)(A) to encompass easily the physical-contact
provisions of § 800.04 of the Florida statute. The government
argues, however, for a broad federal definition. It asserts that
any violation of § 800.04 -- regardless of whether physical contact
with the victim is involved -- falls within the plain meaning of
"sexual abuse of a minor" (and therefore constitutes an "aggravated
felony" predicate offense). Under this theory, a § 800.04
violation would by definition always constitute a § 1101(a)(43)(A)
predicate offense of "sexual abuse of a minor." Thus, the argument
goes, we need not look beyond the statute of conviction in order to
conclude that the defendant pled guilty to an "aggravated felony"
under U.S.S.G. § 2L1.2. In pressing this statutory argument, the
government urges us to adopt the reasoning of our sister circuit in
a similar case, United States v. Padilla-Reyes, 247 F.3d 1158 (11th
Cir. 2001), where the court held that any conviction under § 800.04
(albeit the 1987 version of that statute) qualifies as "sexual
abuse of a minor" for purposes of § 1101(a)(43)(A), even though
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§ 800.04 "encompasses acts involving victim contact as well as acts
involving no victim contact." Id. at 1162-64.8
Although the government's statutory argument may well
have merit, we need not go as far as the government urges on the
facts of this case. That is because, even if § 800.04 encompasses
both predicate and nonpredicate offenses, the charging document to
which the defendant pled guilty in this case unambiguously
indicates that he was convicted of a crime that fits squarely
within the physical contact provisions of § 800.04 and thus
constitutes "sexual abuse of a minor" under § 1101(a)(43)(A) within
the plain meaning of that phrase. See Taylor, 495 U.S. at 602
(permitting examination of "indictment or information or jury
instructions" in cases where the statutory definition encompasses
both predicate and nonpredicate offenses); Sacko, 178 F.3d at 3
(allowing sentencing court to look to charging document "to discern
which type of crime" underlies conviction). Thus, we affirm the
sentencing court's "aggravated felony" determination on the basis
of the factual allegations contained in the charging document.
8
The court held specifically that crimes of "sexual abuse of
a minor" for purposes of § 1101(a)(43)(A) do not require proof of
physical contact between the perpetrator and the victim. See
Padilla-Reyes, 247 F.3d at 1163; see also United States v. Zavala-
Sustaita, 214 F.3d 601, 604-08 (5th Cir. 2000) (affirming 16-level
enhancement where Texas indecent exposure offense which required no
proof of physical contact qualified as "sexual abuse of minor");
United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999)
(holding that a certain California sex offense qualified as "sexual
abuse of a minor" justifying 16-level enhancement under
§ 2L1.2(b)(1)(A) where state courts interpreted statute to be
"violated by a person who does not himself touch the victim child,
if the person, with the requisite intent, coerces the child to
touch himself").
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The information describes in a caption the two counts as
"LEWD ASSAULT ACT" and describes the victim -- referred to as
"A.G." -- as "a child under the age of sixteen." Count One charges
Londono-Quintero with violating § 800.04 by inter alia "fondling
A.G.'s BREASTS and/or touching and/or rubbing A.G.['s] genital
area." Count Two charges Londono-Quintero with violating
alternative elements of § 800.04 by "placing A.G.'s HAND on his
PENIS masturbating and/or ejaculating." Given these factual
details of the alleged crimes, which go well beyond a mere
recitation of the various elements of the statute, the charging
document unmistakably establishes that Londono-Quintero pled guilty
to a § 800.04 violation that constitutes "sexual abuse of a minor."
Londono-Quintero argues that the district court, in
making its "aggravated felony" determination, erroneously
considered the police report, which described in detail the conduct
underlying his § 800.04 conviction. This argument is wrong for two
reasons. First, as we made clear in Shepard, there is no general
prohibition against the use of police reports by the sentencing
court to determine the crime to which a defendant pled guilty. See
Shepard, 231 F.3d at 67 ("[W]e see no justification for an absolute
bar to the consideration of [police reports] when the sentencing
court must determine whether the defendant and the government both
believed that the defendant was entering a guilty plea to a
generically violent crime."). Second, in this case, the court
disavowed any reliance on the police report, stating that "[i]t's
not necessary for the Court to get in[to] the specific facts of the
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particular conduct." In the court's view, the information provided
all the detail necessary for the "aggravated felony" determination
and the resulting 16-level enhancement. We agree.
B. Downward Departure
Londono-Quintero argues that the district court erred in
denying his oral motion for a downward departure made for the first
time at the sentencing hearing. We lack jurisdiction, however, to
reach the merits of this claim.
The Sentencing Reform Act specifically defines when a
defendant can seek appellate review of a sentence. See 18 U.S.C.
§ 3742(a). "[N]o appeal lies from a discretionary refusal to
depart." United States v. Morrison, 46 F.3d 127, 130 (1st Cir.
1995); see also United States v. Pierro, 32 F.3d 611, 619 (1st Cir.
1994) (citing cases). We do have appellate jurisdiction, however,
"where the decision not to depart is based on the sentencing
court's assessment of its lack of authority or power to depart."
Morrison, 46 F.3d at 130. Here, the record is not entirely clear
as to whether the court properly apprehended its departure
authority. However, the district court stated that, even if it did
have the power to depart, it would not exercise that power because
of defendant's conduct in this case. "Because the trial judge
indicated his refusal to depart even if he had the authority," we
are without jurisdiction to review his denial of Londono-Quintero's
departure request. United States v. DeLeon, 187 F.3d 60, 69 (1st
Cir. 1999).
Affirmed.
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