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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13703
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00017-RWS-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE RAMIREZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 23, 2014)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
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In January 2013, Jorge Ramirez-Gonzalez was indicted for illegal re-entry
into the United States in 2011 by an aggravated felon, in violation of 8 U.S.C.
1326(a) and (b)(2).1 In March 2013, he pled guilty to the charge. The presentence
report (“PSI”) prepared by the District Court’s Probation Office enhanced
Ramirez’s base offense level of 8 by 16 levels pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii) based on his 2006 conviction in Georgia for enticing a child for
indecent purposes, in violation of O.C.G.A. § 16-6-5(a). 2 After reducing his
offense level to 21 for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1(a), and fixing his criminal history category at V, the PSI calculated the
Guidelines range at 70 to 87 months imprisonment. At sentencing, the District
Court adopted this range, but granted a downward variance and sentenced Ramirez
to a prison term of 54 months, with 2 months credit for time served.
Ramirez appeals his sentence, arguing, first, that the District Court erred in
finding that his O.C.G.A. § 16-6-5(a) conviction qualified as “sexual abuse of a
minor” and enhancing his base offense level by 16 levels, and second, that his
sentence is substantively unreasonable because the court failed to consider
1
Prior to the indictment in this case, Ramirez had been deported twice, in 2006 and 2011
(prior to the re-entry charged in this case). Immigration officials found him on September 26,
2012, while he was in the custody of the Georgia Department of Corrections servicing a sentence
for DUI.
2
The § 16-6-5(a) offense was charged in Count 1 of a three-count indictment. Count 2
charged false imprisonment, in violation of O.C.G.A. § 16-5-41, and Count 3 charged criminal
trespass, in violation of O.C.G.A. § 16-7-21. Ramirez was convicted of all three offenses.
2
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adequately that his § 16-6-5(a) conviction was based on a guilty plea entered
pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
We affirm.
I.
We review “de novo whether a defendant’s prior conviction qualifies as a
‘crime of violence’ under the Guidelines.” United States v. Cortes-Salazar, 682
F.3d 953, 954 (11th Cir. 2012). Section 2L1.2(b)(1)(A)(ii) of the Sentencing
Guidelines provides that the base offense level for illegally re-entering the United
States should be increased by 16 levels if the conviction that led to the initial
deportation was a felony “crime of violence.” 3 U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Under § 2L1.2, “a felony conviction qualifies as a crime of violence . . . if either
(1) the defendant was convicted of one of the enumerated offenses; or (2) the use,
attempted use, or threatened use of physical force was an element of the offense.”
United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). Among
the enumerated offenses that qualify as a crime of violence under § 2L1.2 is any
conviction for an offense under federal, state, or local law that qualifies as the
“sexual abuse of a minor.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).
Generally, to determine whether a prior conviction is a qualifying
crime-of-violence offense for enhancement purposes, we first apply the categorical
3
The conviction led to Ramirez’s first deportation, in 2006.
3
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approach. Palomino Garcia, 606 F.3d at 1336; see Taylor v. United States, 495
U.S. 575, 598-602, 110 S.Ct. 2143, 2158-60, 109 L.Ed.2d 607 (1990) (holding that
the formal categorical approach requires the sentencing court to focus on the
statutory definition of the offense, or the charging papers and jury instructions, to
discern if the conviction substantially corresponded to a generic offense). We
usually look only at the statute and judgment of conviction to determine whether
the prior conviction is a qualifying offense. Palomino Garcia, 606 F.3d at 1336.
If there is no ambiguity as to whether the offense qualifies as a predicate offense
for enhancement purposes, we need “look no further” than those materials. See id.
If, however, “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.” United States v. Ramirez-Garcia, 646 F.3d 778, 782-83
(11th Cir. 2011).
In United States v. Padilla-Reyes, we looked to the ordinary and
unambiguous meaning of the terms contained in the phrase “sexual abuse of a
minor,” as used in 8 U.S.C. § 1101(a)(43)(A) and cross-referenced by the version
of § 2L1.2 in effect at that time, 4 and concluded that such offenses involve “a
4
Section 2L1.2 was later amended to directly include the “sexual abuse of a minor”
language, rather than rely on a cross-reference to § 1101(a)(43)(A). See Cortes-Salazar, 682
F.3d at 955.
4
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perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a
purpose associated with sexual gratification.” 247 F.3d 1158, 1163 (11th Cir.
2001). Based on that definition, we held that Fla. Stat. § 800.04 (1987), which
proscribed “[l]ewd, lascivious, or indecent assault or act[s] upon or in presence of
child; sexual battery,” constituted “sexual abuse of a minor” and triggered the 16-
level enhancement under § 2L1.2(b)(1)(A). Id. at 1159, 1164. Although “sexual
abuse of a minor” now explicitly appears in the commentary to § 2L1.2 as an
enumerated crime-of-violence offense, rather than appearing by reference to
§ 1101(a)(43)(A) to define “aggravated felony,” we apply the same definition to
the term as we did when Padilla-Reyes was decided. Cortes-Salazar, 682 F.3d at
956-57.
This generic definition of “sexual abuse of a minor” from Padilla-Reyes has
been interpreted broadly, as “‘[m]isuse’ or ‘maltreatment’ are expansive words that
include many different acts.” Ramirez-Garcia, 646 F.3d at 784. Because the
definition includes nonphysical misuse and maltreatment, we have applied it to
underlying offenses that include solicitation and attempt. See Taylor v. United
States, 396 F.3d 1322, 1329 (11th Cir. 2005) (holding that an alien was barred
from a discretionary waiver of deportation under former Immigration and
Nationality Act § 212(c), 8 U.S.C. § 1182(c) because his prior conviction under a
Florida statute proscribing “solicitation of a child who was 16-years-old to engage
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in a sexual battery” constituted “sexual abuse of a minor” under § 1101(a)(43)(A),
and noting that such solicitation represents nonphysical conduct committed for the
purpose of sexual gratification); Ramirez-Garcia, 646 F.3d at 780 (applying the
definition, as used in § 2L1.2(b)(1)(A), to a North Carolina statute that
criminalized the taking or attempted taking of “any immoral, improper, or indecent
liberties with any child,” and the commission or attempted commission of “any
lewd or lascivious act upon or with the body . . . of any child of either sex under
the age of 16 years.”).
Section 16-6-5 of the Georgia Code criminalizes the enticing of a child for
indecent purposes, and someone commits the offense “when he or she solicits,
entices, or takes any child under the age of 16 years to any place whatsoever for
the purpose of child molestation or indecent acts.” O.C.G.A. § 16-6-5(a). A
person commits child molestation when he:
(1) Does any immoral or indecent act to or in the presence of or with
any child under the age of 16 years with the intent to arouse or satisfy
the sexual desires of either the child or the person; or
(2) By means of an electronic device, transmits images of a person
engaging in, inducing, or otherwise participating in any immoral or
indecent act to a child under the age of 16 years with the intent to
arouse or satisfy the sexual desires of either the child or the person.
O.C.G.A. § 16-6-4. The Georgia courts have interpreted the term “indecent” in the
context of § 16-6-4 to be sufficient to “alert a defendant that he or she was being
charged with committing an unlawful act with a lustful intent against a child” and
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that “[s]uch an act would inherently be for someone’s sexual gratification.”
Hammock v. State, 411 S.E.2d 743, 746 (Ga. Ct. App. 1991). Likewise, in the
context of § 16-6-5(a), the courts have recognized that the words “‘indecent acts’
. . . are not so vague and undefined as to prevent a person from recognizing the
conduct they forbid,” namely, “acting with the intent of engaging in illicit sexual
conduct with a minor.” State v. Marshall, 698 S.E.2d 337, 339 (Ga. Ct. App.
2010). The courts largely base this interpretation on the fact that § 16-6-5 was
enacted as part of a code chapter entitled “Sexual Offenses,” which alerts
defendants to the fact that they are accused of acting with intent to engage in
sexual misconduct. Id. at 339-40.
In United States v. McGarity, one of the defendants faced potential
enhancements under 18 U.S.C. §§ 2251(e) and 2252A(b)(1) for a prior conviction
of § 16-6-5(a). 669 F.3d 1218, 1261-63 (11th Cir. 2012). We noted that
§ 2251(e) applied an enhancement for a “prior conviction . . . under the laws of any
State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact
involving a minor,” and § 2252A(b)(1) applied an enhancement for “a prior
conviction . . . under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor.” Id. at 1262 (ellipses
in original); see 18 U.S.C. §§ 2251(e), 2252A(b)(1). In upholding the two
sentence enhancements based on the defendant’s prior conviction under
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§ 1665(a), we relied on the Georgia Court of Appeals’s holdings in Hammock
and Marshall that defined “indecent” in § 16-6-5(a) as giving “notice to the
defendant that ‘he or she was being charged with committing an unlawful act with
a lustful intent against a child.” McGarity, 669 F.3d at 1262. We further stated
that, by its nature, § 16-6-5(a) “proscribes the solicitation of a minor to engage in
sexual conduct or conduct which, by its nature, is a sexual offense against a
minor.” Id.
We conclude that a violation under § 16-6-5(a) fits within Padilla-Reyes’s
broad generic definition of “sexual abuse of a minor” that includes both physical
and nonphysical misuse and maltreatment of a minor for the purposes of sexual
gratification. Accordingly, the District Court did not err in concluding that the
underlying conviction under § 16-6-5(a) categorically constituted a crime of
violence under § 2L1.2(b)(1)(A)(ii).
II.
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
445 (2007). A court abuses its discretion when it (1) fails to consider all factors
that were due significant weight, (2) gives an improper or irrelevant factor
significant weight, or (3) commits a clear error of judgment by balancing the
proper factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
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2010). The factors that the court weighs are set forth in 18 U.S.C. § 3553(a). “[A]
district court commits a clear error in judgment when it weighs those factors
unreasonably, arriving at a sentence that does not achieve the purposes of
sentencing,” as stated in that statute. Id. (quotation omitted). These purposes
include the need for the sentence to reflect the seriousness of the offense, promote
respect for the law, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2)(A)-(C). The court
must also consider the nature and circumstances of the offense committed and the
defendant’s history and characteristics, the kinds of sentences available, the
Guidelines range applicable to the defendant, Sentencing Commission policy
statements, the need to avoid unwarranted sentencing disparities between
defendants with similar records who have been found guilty of similar conduct,
and any need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
A district court is required to “evaluate all of the § 3553(a) factors when
arriving at a sentence.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009). The weight accorded to each factor, however, is “a matter committed to the
sound discretion of the district court.” United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (citation omitted). “We do not reweigh relevant factors nor do we
remand for re-sentencing unless the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence outside the
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range of reasonable sentences.” United States v. Langston, 590 F.3d 1226, 1237
(11th Cir. 2009).
An Alford plea is a guilty plea where the defendant maintains a claim of
innocence to the underlying criminal conduct charged but admits that sufficient
evidence exists to convict him of the offense. See Alford, 400 U.S. at 37-38, 91
S.Ct. at 167-68. “[T]he collateral consequences flowing from an Alford plea are
the same as those flowing from an ordinary plea of guilty” so long as “the guilty
plea represents a voluntary and intelligent choice among alternative courses of
action open to the defendant, and a sufficient factual basis exists to support the plea
of guilt.” Blohm v. C.I.R., 994 F.2d 1542, 1554 (citation omitted) (holding that a
taxpayer was collaterally estopped from denying liability for civil fraud under 26
U.S.C. § 6653 for the same year he entered an Alford plea on a criminal tax fraud
conviction under 26 U.S.C. § 7201). Under Georgia law, an Alford plea is “a
guilty plea and places the defendant in the same position as if there had been a trial
and conviction by a jury.” Morrell v. State, 677 S.E.2d 771, 772 n.3 (Ga. Ct. App.
2009) (quotations omitted).
As discussed in our resolution of the first issue, the District Court was
correct in determining that a 16level enhancement applied to Ramirez-Gonzalez’s
prior conviction for enticement of a minor. The fact that his conviction was based
on an Alford plea is immaterial because the collateral consequences of an Alford
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plea are no different than those of an ordinary guilty plea. Although the court
correctly applied the 16-level enhancement, it also issued a considerable downward
variance to negate the potential sentencing disparities that could have resulted from
the enhancement on these facts, evidencing the court’s sound consideration of the
§ 3553(a) factors. The resulting 52-months sentence was below the Guidelines
range of 70 to 87 months, well below the maximum sentence of 20 years set by
§ 1326(b)(2), and overall, substantively reasonable.
AFFIRMED.
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