[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
JULY 12, 2011
JOHN LEY
No. 10-13279
CLERK
D.C. Docket No. 8:10-cr-00055-SCB-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMILIANO RAMIREZ-GARCIA
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(July 12, 2011)
Before HULL and BLACK, Circuit Judges, and HUCK,* District Judge
HUCK, District Judge:
*
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
Appellant Emiliano Ramirez-Garcia challenges the district court’s decision to
impose a 16-level enhancement to his base level offense score pursuant to U.S.
Sentencing Guideline (“USSG”) § 2L1.2(b)(1)(A). The district court based the
enhancement on its finding that the North Carolina statute under which Ramirez-
Garcia previously was convicted, N.C. Gen. Stat. § 14-202.1, constituted “sexual
abuse of a minor” and, thus, was a “crime of violence” pursuant to the Sentencing
Guidelines. For the reasons discussed below, the Court affirms the judgment of the
district court.
I.
The facts material to this appeal are undisputed. Ramirez-Garcia, a Mexican
citizen, illegally entered the United States in May 2000. In 2002, Ramirez-Garcia
was arrested in North Carolina and charged with two counts of statutory rape and two
counts of taking indecent liberties with a child. The latter charges were brought
pursuant to N.C. Gen. Stat. § 14-202.1, which states:
(a) A person is guilty of taking indecent liberties with
children if, being 16 years of age or more and at least five
years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any
lewd or lascivious act upon or with the body or any
2
part or member of the body of any child of either sex
under the age of 16 years.
Ramirez-Garcia pled guilty to the two counts of taking indecent liberties with
a child, receiving a sentence of two consecutive terms of 20–24 months. The record
does not reveal how Ramirez-Garcia violated § 14-202.1. The indictments for the
two charges were identical, except for the case numbers, and read as follows:
The jurors for the State upon their oath present that on or
about the date of offense shown and in the county named
above the defendant named above unlawfully, willfully,
and feloniously did take and attempt to take immoral,
improper, and indecent liberties with the child named
below for the purpose of arousing and gratifying sexual
desire and did commit and attempt to commit a lewd and
lascivious act upon the body of the child named below. At
the time of this offense, the child named below was under
the age of 16 years and the defendant named above was
over 16 years of age and at least five years older than the
child. The name of the child is (name redacted).
(emphasis added). The Transcript of Plea—which is a form, not an actual
transcript—and the Judgement and Commitment forms indicate that Ramirez-Garcia
pled guilty to taking indecent liberties with a child, without specifying whether
Ramirez-Garcia’s actions violated the first or second prong of N.C. Gen. Stat. § 14-
202.1(a). The Transcript of Plea reveals that the State dismissed the statutory rape
charges in exchange for Ramirez-Garcia’s guilty pleas to taking indecent liberties
3
with a child. In 2005, upon his release from prison, immigration authorities deported
Ramirez-Garcia to Mexico.
In 2007, Ramirez-Garcia illegally reentered the United States. Immigration
authorities arrested him in Hillsborough County, Florida in January 2010. In
connection with that arrest, Ramirez-Garcia pled guilty to being an alien found in the
United States after having been convicted of aggravated felonies and deported,
pursuant to 8 U.S.C. §§ 1326(a) and (b)(2). The parties agreed that the issue of
Ramirez-Garcia’s prior North Carolina convictions would be addressed at sentencing.
Prior to the sentencing hearing, the United States Probation Office determined
that Ramirez-Garcia’s base level offense score under the guidelines was 8, pursuant
to USSG § 2L1.2. Ramirez-Garcia did not contest that calculation. He did, however,
object to the Probation Office’s recommendation that the court impose a 16-level
enhancement pursuant to USSG § 2L1.2(b)(1)(A). The Probation Office reasoned
that Ramirez-Garcia’s prior convictions for taking indecent liberties with a child were
“crimes of violence”1 pursuant to the Sentencing Guidelines because they involved
1
Starting with a base level offense score of 8, USSG § 2L1.2(b)(1) requires that
If the defendant previously was deported, or unlawfully remained
in the United States, after–
(A) a conviction for a felony that is (i) a drug trafficking
offense for which the sentence imposed exceeded 13
months; (ii) a crime of violence; (iii) a firearms offense;
(iv) a child pornography offense; (v) a national security or
4
“sexual abuse of a minor.”2 Combined with reductions for acceptance of
responsibility, the Probation Office calculated that Ramirez-Garcia’s total offense
level was 21.
Ramirez-Garcia objected to the Probation Office’s recommendation, arguing
that the North Carolina offense of taking indecent liberties with a child encompassed
acts not included in the definition of “sexual abuse of a minor.” The Probation Office
rejected that argument and submitted its findings and recommendations to the district
court. The district court held a sentencing hearing, at which Ramirez-Garcia repeated
his assertion that the North Carolina convictions were not “crimes of violence”
because they did not constitute “sexual abuse of a minor.”
terrorism offense; (vi) a human trafficking offense; or (vii)
an alien smuggling offense, increase by 16 levels . . . .
(emphasis added).
2
The Application Notes to Subsection (b)(1) 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.
(emphasis added).
5
The two sides also disputed whether the records available to the district court
demonstrated that Ramirez-Garcia pled guilty to both prongs, (a)(1) and (a)( 2), of the
North Carolina offense of “taking indecent liberties with a child.” See N.C. Gen.
Stat. § 14-202.1(a). The Shepard-approved3 documents from the North Carolina
conviction, to which Ramirez-Garcia did not object, comprise the two indictments,
a form Transcript of Plea, and a Judgment and Commitment for each case. On its
face, no document affirmatively indicates whether Ramirez-Garcia pled guilty to one
or both of the prongs of § 14-202.1(a).4 The documents also do not supply any
specific factual information regarding the grounds for the convictions.
The district court concluded that the North Carolina offense was “a similar
crime” to sexual abuse of a minor. The district court also determined that because the
documents indicated that Ramirez-Garcia had “pled to the entire statute” it was
proper for the district court to find that Ramirez-Garcia had “used, attempted to use,
or threatened use of physical force against another,” see Application Notes to USSG
§ 2L1.2(b(1), pursuant to the second prong of the North Carolina statute. See N.C.
3
Shepard v. United States, 544 U.S. 13 (2005).
4
Although the use of “and” in the indictments seems to indicate Ramirez-Garcia pled
guilty to both prongs of § 14-202.1(a), we need not decide this issue because a violation of either
prong constitutes “sexual abuse of a minor” as discussed herein.
6
Gen. Stat. § 14-202.1(a)(2).5 Thus, the district found that the 16-level sentencing
enhancement was appropriate.
II.
The Court reviews de novo whether a defendant’s conviction qualifies as a
“crime of violence” under the Sentencing Guidelines. United States v. Palomino
Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).
The Court has held that “sexual abuse of a minor,” as referenced in § 2L1.2 of
the Sentencing Guidelines, is “a perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual gratification.” Padilla-
Reyes v. United States, 247 F.3d 1158, 1163 (11th Cir. 2001). In Padilla-Reyes, the
Eleventh Circuit defined “sexual abuse of a minor” using Webster’s Third New
International Dictionary and Black’s Law Dictionary in order to give the words their
plain meaning that comports with common usage. The Court focused on “the
perpetrator’s intent in committing the abuse[,] . . . to seek libidinal gratification.” 247
F.3d at 1163.6 The Court noted that the plain meaning of “abuse” includes “acts that
5
The Government does not argue on appeal that N.C. Gen. Stat. § 14-202.1 has as an
element the use, attempted use, or threatened use of physical force.
6
Other circuits, too, subscribe to purpose-centric definitions of “sexual abuse of a
minor.” See United States v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009) (“find[ing]
instructive” the Padilla-Reyes definition of sexual abuse of a minor); United States v. Izaguirre-
7
involve physical contact between the perpetrator and the victim and acts that do not.”
Id.
Ramirez-Garcia urges the Court to reconsider the definition of “sexual abuse
of a minor” that it formulated in Padilla-Reyes. Ramirez-Garcia asserts that, in
Padilla-Reyes, the Court failed to derive a generic, contemporary definition of “sexual
abuse of a minor,” as required by the Supreme Court in Taylor v. United States, 495
U.S. 575 (1990). Ramirez-Garcia contends we must look to “definitions of the
[enumerated offense] adopted in the various states, criminal law treatises, and the
Model Penal Code to formulate a generic, contemporary definition of the crime.” See
Palomino Garcia, 606 F.3d at 1327–28 (describing the Supreme Court’s process in
Flores, 405 F.3d 270, 271 (5th Cir. 2005) (concluding that a violation of N.C. Gen. Stat. § 14-
202.1(a)(1) constituted “sexual abuse of a minor” because “[g]ratifying or arousing one’s sexual
desires in the actual or constructive presence of a child is sexual abuse of a minor”). Likewise,
the Fourth Circuit has stated “[t]he clear focus of the phrase is on the intent of the
abuser—sexual gratification—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.” Diaz-Ibarra, 522 F.3d at 350. The Fourth Circuit further explained that whether
the child suffered “injury” was not relevant to the definition of “abuse” because “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.” Id.
An injury-focused model could allow perpetrators to avoid a sentencing enhancement “simply
because they chose to commit their sexually-exploitative act in the presence of or to a child too
young to understand the nature of the defendant’s perverted act, and thus perhaps too young to
suffer some psychological injury.” Id. at 351. The Diaz-Ibarra court characterized that result as
one that “is more than just anomalous; it is absurd.” Id.
8
Taylor for deriving a generic definition of the traditional, common-law offense of
burglary).
When determining whether a prior conviction qualifies as an enumerated
offense listed in the Sentencing Guidelines, the Supreme Court prescribes that courts
use a categorical approach to determine whether the convicted crime falls within the
generic, federal definition of the enumerated offense. Taylor, 495 U.S. at 598–602.
The Court accomplishes this formal categorical approach by “looking only to the
statutory definitions of the prior offenses, and not to the particular facts underlying
those convictions.” Id. at 600. If the scope of acts criminalized by the statutory
definition of the prior offense is broader than the generic definition of the enumerated
offense, then, under the categorical approach, the prior conviction does not fall within
the enumerated offense. In limited circumstances, however, the Court may take a
modified categorical approach to determine “whether a plea of guilty to [an
enumerated offense] defined by a nongeneric statute necessarily admitted elements
of the generic offense” by looking only to “the charging 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 of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005).
9
Ramirez-Garcia’s assertion that the Padilla-Reyes court failed to properly
formulate a generic definition of “sexual abuse of a minor” is incorrect. While courts
should consult state definitions, treatises, and the Model Penal Code when deriving
a generic definition of traditional, common law offenses like burglary and aggravated
assault, the present case involves “sexual abuse of a minor,” which is a non-
traditional offense. United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th Cir.
2006).7 For offenses not developed in the common law, courts define a generic
offense based on “‘the ordinary, contemporary, and common meaning’ of the
statutory words[,]” which involves “coupl[ing] the dictionary definition of ‘abuse’
with the common understanding of ‘sexual’ and ‘minor.’” Id. (internal citations
omitted); United States v. Lopez-Solis, 447 F.3d 1201, 1206–07 (9th Cir. 2006).8
7
In Baza-Martinez, the Ninth Circuit considered the issue before us and reached a
contrary result, concluding the North Carolina statute was broader than the generic definition of
“sexual abuse of a minor” because it “focuses on improper motivation rather than ‘conduct that is
abusive,’ such as psychological or physical harm.” 464 F.3d at 1016–17 (internal citation
omitted). However, the Ninth Circuit has also stated that “[t]he use of young children for the
gratification of sexual desire constitutes an abuse . . . [that] constitutes maltreatment, no matter
its form.” United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999).
8
This is not a matter of “underestimat[ing] the talents and industry of district judges” to
formulate a generic definition based on states’ definitions of sexual abuse of a minor, treatises,
and the Model Penal Code. Palomino Garcia, 606 F.3d at 1329. Ramirez-Garcia directs the
Court to numerous state offenses that arguably are related to sexual abuse of minors; however,
the variation in the state offenses is overwhelming. While some states choose to punish only
physical contact with minors, others punish a substantial range of non-physical acts toward
minors, and while some require a perpetrator’s physical presence in front of a minor, others also
punish remote acts and communications. This is dissimilar to the issue that the Supreme Court
faced in Taylor, where it arrived on a generic, federal definition of burglary based on many
10
Other circuits have taken this approach when defining the phrase “sexual abuse of a
minor” as used in the Sentencing Guidelines. See, e.g., United States v. Sonnenberg,
556 F.3d 667, 670 (8th Cir. 2009); United States v. Diaz-Ibarra, 522 F.3d 343, 349
(4th Cir. 2008); United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005).
In Padilla-Reyes, our Court implemented this same approach, relying on dictionary
definitions to give the words in “sexual abuse of a minor” a plain meaning that
comports with common usage. 247 F.3d at 1163.9 Ramirez-Garcia cites no authority
indicating that this Court may reexamine Padilla-Reyes and redefine “sexual abuse
of a minor” utilizing the analysis employed for traditional, common law offenses such
as assault and burglary. Importantly, Ramirez-Garcia cannot cite any authority that
enables this Court to overturn Padilla-Reyes,which is binding precedent, except upon
relatively-similar state definitions of burglary. In Taylor, the primary difficulty was that some
states’ definitions of burglary included actions taken toward boats, cars, and stores, in addition
those actions toward homes. See 495 U.S. at 2154. Thus, in Taylor, the baseline conduct was
the same, while here it is not. The complication involved in formulating a generic definition of
“sexual abuse of a minor” based on definitions from the states’ statutes and other sources would
prove overwhelming, if not an impossibly inaccurate process.
9
In applying the Padilla-Reyes definition to a case involving Fla. Stat. § 800.04(1), the
Court recently noted that “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 [statutes other than the Florida statute].” United States v. Casillas-Cantero, No. 10-14238,
2011 WL 1834268, at *2 n.2 (11th Cir. May 13, 2011) (per curiam). While the Padilla-Reyes
court did indeed formulate a generic definition of “sexual abuse of a minor,” the Casillas-Cantero
court rightly notes that Padilla-Reyes did not determine application of that definition to all state
statutes other than the Florida statute.
11
en banc review or reversal by the Supreme Court. See United States v. Vega-Castillo,
540 F.3d 1235, 1236 (11th Cir. 2008).
Having determined in Padilla-Reyes that “sexual abuse of a minor” is “a
perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose
associated with sexual gratification,” the Court need only ensure that the scope of this
definition is no narrower than the scope of the North Carolina offense of taking
indecent liberties with a child. 247 F.3d at 1163. The Court previously has held that
the term “sexual abuse of a minor,” as used in 8 U.S.C. § 1101(a)(43)(A), includes
the conduct proscribed by § 14-202.1, the North Carolina offense of taking liberties
with a child. Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir. 2001). It is clear that
the North Carolina statute is no broader than Padilla-Reyes’ definition of “sexual
abuse of a minor” for the purpose of USSG § 2L1.2.
“Misuse” or “maltreatment” are expansive words that include many different
acts. The Padilla-Reyes definition does not limit “sexual abuse of a minor” to
instances where the perpetrator is present in front of the minor, where the minor is
aware of the abuse, or where the perpetrator makes contact with the minor. The North
Carolina statute is similarly broad, but no broader. North Carolina courts have found
that the following persons violated § 14-202.1: (1) a high school basketball coach
who covertly video-taped a student changing clothes, State v. McClees, 424 S.E.2d
12
687 (N.C. Ct. App. 1993); (2) a karate instructor who had sexually explicit and
graphic phone conversations with a pupil, State v. Every, 578 S.E.2d 642 (N.C. Ct.
App. 2003); (3) a man who gave a sexually graphic note to his minor neighbor, which
included requests that she participate in sexual activity with him, State v. McClary,
679 S.E.2d 414 (N.C. Ct. App. 2009); and (4) a man who masturbated in a bed next
to a young girl, State v. Hammett, 642 S.E.2d 454 (N.C. Ct. App. 2007). Although
none of these offenses involved contact with a minor, and some even did not involve
the perpetrator’s presence in front of the minor, North Carolina state courts
determined that all involved taking indecent liberties with a child. It is clear that all
these acts also are encompassed within the Padilla-Reyes generic, federal
definition—they all involve either misuse or maltreatment of a minor for the
perpetrator’s sexual gratification.10 Ramirez-Garcia points to no North Carolina cases
involving facts that do not fit within the contours of the broad Padilla-Reyes
definition, nor any hypothetical situation that would violate N.C. Gen. Stat. § 14-
202.1 while avoiding Padilla-Reyes’ definition. Thus, the Court finds that the
10
Both definitions focus on the abuser’s purpose, rather than any apparent harm to the
minor. Compare Diaz-Ibarra, 522 F.3d at 350 (“[O]nce 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.”), with State v. Hartness, 391 S.E.2d 177,
180 (N.C. 1990) (noting a “[d]efendant’s purpose for committing such act is the gravamen of this
offense; the particular act performed is immaterial”), and State v. McClary, 679 S.E.2d 414, 418
(N.C. App. Ct. 2009) (“Neither a completed sex act nor an offensive touching of the victim are
required to violate the statute.”).
13
Padilla-Reyes definition of “sexual abuse of a minor” is at least as broad and
inclusive as § 14-202.1.
For the reasons given, the Court affirms the judgment of the district court.
AFFIRMED.
14