[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 13, 2011
No. 10-14238
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 8:09-cr-00567-RAL-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE CASILLAS-CANTERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 13, 2011)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Vicente Casillas-Cantero appeals his 48-month sentence for illegal reentry
by a deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a), (b)(2). Casillas-Cantero argues (1) that the district court erred in
relying on United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001), to
determine that his conviction pursuant to Fla. Stat. § 800.04(1), for fondling a
minor, qualified as “sexual abuse of a minor,” and (2) that even if § 800.04(1)
constitutes “sexual abuse of a minor,” it cannot be considered a “crime of
violence” within the meaning of United States Sentencing Guidelines
§ 2L1.2(b)(1)(A) (Nov. 2009), without violating the plain meaning of that term, as
defined in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), Johnson
v. United States, --- U.S.---, 130 S. Ct. 1265, 1271 (2010); and United States v.
Harris, 608 F.3d 1222, 1233 (11th Cir. 2010). After careful review, we affirm.
I.
Casillas-Cantero first argues that Padilla-Reyes was inapplicable to his case
because it had been decided before a significant amendment to § 2L1.2(b)(1)(A).
Although the Sentencing Guidelines are now advisory after the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the
district court is still obligated to calculate the applicable guideline range correctly.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). We review de novo
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whether a defendant’s prior conviction qualifies as a “crime of violence” under the
Sentencing Guidelines. United States v. Llanos-Agostadero, 486 F.3d 1194, 1196
(11th Cir. 2007).
Section 2L1.2(b)(1)(A) of the Sentencing Guidelines provides for a 16-level
increase in the offense level if the defendant was previously deported after “a
conviction for a felony that is . . . a crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The commentary to that guideline provision defines “crime
of violence” as any of the following offenses under federal, state, or local law:
murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary,
incompetent, or coerced), statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of credit, burglary of a
dwelling, or any other 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. n.1(B)(iii) (emphasis added). “It is well settled that a
felony conviction for an enumerated offense qualifies as a ‘crime of violence’
under § 2L1.2, whether or not the use of physical force is an element of the
crime.” United States v. Palomino Garcia, 606 F.3d 1317, 1327 (11th Cir. 2010).
At the time that Casillas-Cantero was charged, § 800.04(1) read:
Lewd, lascivious, or indecent assault or act upon or in the presence of
child. –A person who:
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(1) Handles, fondles, or assaults any child under the age of 16
years in a lewd, lascivious, or indecent manner . . . without
committing the crime of sexual battery, commits a felony
of the second degree.
Flat. Stat. § 800.04(1) (1997). In Padilla-Reyes, we held that a violation of
§ 800.04(1), with or without victim contact, constitutes “sexual abuse of a minor”
within the meaning of § 2L1.2. 247 F.3d at 1163–64. We interpreted “sexual
abuse of a minor” to mean “a perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual gratification.” Id. at
1163. We recognized that violations of Fla. Stat. § 800.04 might not involve any
physical contact with the victim, but concluded that all possible violations, even
those where “the only elements are that the child was under the age of sixteen and
that the defendant knowingly committed a lewd or lascivious act that the child saw
or sensed,” involve the misuse or maltreatment of a child for sexual gratification,
and thus constitute “sexual abuse of a minor.” Id. at 1162–63 & n.5.
Nevertheless, Casillas-Cantero argues that Padilla-Reyes does not control,
because in that case we analyzed an earlier version of § 2L1.2. The earlier version
of § 2L1.2 provided for a 16-level increase in offense level based on the
commission of an “aggravated felony,” which the commentary defined by
reference to 8 U.S.C. § 1101(a)(43). 247 F.3d at 1159; see U.S.S.G. § 2L1.2 (Nov.
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1998). That statutory provision, in turn, defined “aggravated felony” to include
“sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Following a significant
amendment in 2001, the current version of § 2L1.2 provides for a 16-level
increase in offense level based on the commission of a “crime of violence,” which
as explained above, is expressly defined in the commentary to § 2L1.2 to include
“sexual abuse of a minor.” See U.S.S.G. § 2L1.2 & cmt. n.1(B)(iii) (Nov. 2009).
We reject Casillas-Cantero’s argument that this amendment renders
Padilla-Reyes inapplicable to his case. Padilla-Reyes held that § 800.04 fell
within the plain meaning of the term “sexual abuse of a minor.” 247 F.3d at
1163–64. Although that term now appears explicitly in the commentary to
§ 2L1.2, rather than applying by reference to 8 U.S.C. § 1101(a)(43), nothing in
the amendment has suggested a change in its definition.1 As a result, the district
court did not err in finding that, under Padilla-Reyes, Casillas-Cantero’s
conviction for violating § 800.04(1) was a conviction for “sexual abuse of a
minor.”2
1
To be sure, the amendment potentially changes the consequences of a finding that an
offense is a “sexual abuse of a minor,” by now labeling that offense as a “crime of violence”
instead of an “aggravated felony.” But, the result is the same in this case because the 16-level
enhancement that previously applied to an “aggravated felony” now applies to a “crime of
violence.”
2
Casillas-Cantero also argues that the district court erred in failing to conduct a
categorical analysis under Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990) and
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II.
Casillas-Cantero also argues that the definition of “crime of violence”
provided in the commentary to § 2L1.2 violates the plain meaning of the term, as it
has been defined in Begay, 553 U.S. at 141–42, 128 S. Ct. at 1584, Johnson, ---
U.S.---, 130 S. Ct. at 1271; and Harris, 608 F.3d at 1233. The commentary to the
Sentencing Guidelines is “authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915
(1993).
Begay, 553 U.S. at 141–42, 128 S.Ct. at 1584, Johnson, --- U.S. ---, 130 S.
Ct. at 1271, and Harris, 608 F.3d at 1232–33, employed a “categorical approach”
to determine whether certain offenses qualified as “violent felon[ies]” under the
ACCA. The ACCA defines a “violent felony” as an offense that:
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005). “Athough Taylor and Shepard
were [Armed Career Criminal Act (“ACCA”)] cases, we have employed their ‘categorical
approach’ in determining whether a prior offense qualifies for an enhancement under the
Guidelines.” Palomino Garcia, 606 F.3d at 1328. But while Padilla-Reyes may not have fully
defined the contours of the generic offense of “sexual abuse of a minor” to the extent necessary
to resolve cases involving offenses under other statutes, that case implicitly defined the generic
offense to the degree necessary to conclude that a violation of the then-existing version of
§ 800.04—the statute at issue in both that case and this one—qualified as a “sexual abuse of a
minor.” Because we find that Padilla-Reyes continues to control, we are bound by that case’s
holding. See United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010) (“[U]nder the
prior precedent rule, we are bound to follow a prior binding precedent unless and until it is
overruled by this court en banc or by the Supreme Court.” (quotation marks omitted)).
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(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B). We have explained that “[c]onsidering whether a crime
is a ‘violent felony’ under the ACCA is similar to considering whether a
conviction qualifies as a ‘crime of violence’ under U.S.S.G. § 4B1.2(a) because
the definitions for both terms are virtually identical.” United States v. Alexander,
609 F.3d 1250, 1253 (11th Cir. 2010) (quotation marks omitted). But Begay,
Johnson, and Harris do not necessarily control here because this case involves
neither the ACCA nor § 4B1.2(a), but instead turns on the definition of a “crime of
violence” that applies to § 2L1.2.
While the text of § 2L1.2 itself provides no definition of “crime of
violence,” the commentary to § 2L1.2 defines that term very differently from
§ 4B1.2(a) and the ACCA. As relevant here, the commentary specifically
enumerates “sexual abuse of a minor” as a “crime of violence,” under § 2L1.2,
even though that offense is not enumerated as a crime of violence under
§ 4B1.2(a) or as a violent felony under the ACCA. We recognize the potential for
confusion that might arise from applying two different definitions of crime of
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violence in two different Guidelines chapters, but this is plainly what the
Guidelines contemplate insofar as the two sections provide different definitions.3
Moreover, as we have previously explained, “[i]t is well settled that a felony
conviction for an enumerated offense qualifies as a ‘crime of violence’ under
§ 2L1.2.” Palomino Garcia, 606 F.3d at 1327.
Because we cannot say that the distinct definition of “crime of violence”
provided in the commentary to § 2L1.2 is a plainly erroneous reading of the
Guideline, that definition is still “authoritative.” See Stinson, 508 U.S. at 38, 113
S. Ct. at 1915. Thus, the district court did not err by relying on the commentary to
the Guidelines in imposing the 16-level enhancement under U.S.S.G. § 2L1.2. For
all of these reasons, we affirm Casillas-Cantero’s sentence.
AFFIRMED.
3
We acknowledge that this Court has previously stated that “there is no meaningful
distinction between the definition of a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1) . . . , the
definition of a “crime of violence” under § 4B1.2(a) . . . , or the definition of a ‘crime of
domestic violence’ under 18 U.S.C. § 922(g)(9).” Llanos-Agostadero, 486 F.3d at 1197–98. But
that observation in Llanos-Agostadero was made in the context of analyzing the “elements
clause” of § 2L1.2 cmt n.1(B)(iii), which mirrors language in § 4B1.2(a) and the ACCA. Id. at
1197. This case turns not on the “elements clause,” but instead on the list of enumerated
offenses in § 2L1.2 cmt n.1(B)(iii), which differs markedly from the list of enumerated offenses
in § 4B1.2(a) and the ACCA.
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