UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10010
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BULMARO RAYO-VALDEZ, aka Bulmaro Valdez Rayo,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
August 12, 2002
Before JOLLY, DUHÉ and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:
This is an appeal from a final judgment of conviction for
illegal re-entry into the United States after deportation. Because
we hold that sexual abuse of a minor is a crime of violence under
U.S.S.G. § 2L1.2, and a prior aggravated felony is not an element
of the crime of illegal re-entry under 8 U.S.C. § 1326, we AFFIRM
the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Bulmaro Rayo-Valdez (“Rayo-Valdez”) was removed from
the United States in 1999. He unlawfully re-entered this country,
and was found in April 2001. Rayo-Valdez was indicted on a charge
of illegally re-entering the United States after deportation, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pled guilty.
The presentence report (“PSR”) detailed Rayo-Valdez’s prior
crimes. In April 1991, he pled guilty to several counts of
aggravated sexual assault of a child under 14 years old. The crimes
occurred on three different occasions in 1989 and 1990. Rayo-Valdez
twice digitally penetrated the female sexual organ of a child, and
once penetrated the anus of a child. Although the PSR does not
specify the statute on which Rayo-Valdez’s conviction for these
crimes rested, it appears to have been Section 22.021 of the Texas
Penal Code. That law authorizes a conviction for “Aggravated Sexual
Assault” against one who “(B) intentionally or knowingly... (i)
causes the penetration of the anus or female sexual organ of a
child by any means... and... (2)... (B) the victim is younger than
14 years of age....”1
Before sentencing, Rayo-Valdez objected to the categorization
of his prior conviction as a “crime of violence”, which resulted in
a recommended sentence enhancement. At the sentencing hearing, the
district court heard argument and overruled the objections. Rayo-
Valdez was sentenced to 84 months in prison, a three-year term of
supervised release, and a $100 special assessment. He timely
1
The pertinent portions of this law have remained unchanged
since Rayo-Valdez’s convictions.
2
appealed.
DISCUSSION
Sentencing Guidelines
Rayo-Valdez claims that the district court erred in enhancing
his sentence for prior conviction for a “crime of violence”,
arguing that his conviction for sexual assault of a young child is
not a “crime of violence” under the recently amended U.S.S.G. §
2L1.2. This is an issue of first impression. We review the
application of the Sentencing Guidelines de novo. United States v.
Goynes, 175 F.3d 350, 353 (5th Cir. 1999).
The district court enhanced Rayo-Valdez’s offense level under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The applicable version of that
guideline provides:
If the defendant previously was deported, or unlawfully
remained in the United States after, -
(A) *** (ii) a crime of violence; *** increase [the
offense level] by 16 levels[.]
The commentary provides a two-pronged definition of “crime of
violence”:
(I) means an 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; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.
Id., comment, application note 1(B)(ii).
3
Rayo-Valdez argues that because the “use, attempted use, or
threatened use of physical force against the person of another” is
not a necessary element of his sexual abuse of a minor offense
under Texas Penal Code § 22.021, his sentence cannot be enhanced
under U.S.S.G. § 2L1.2.
We disagree. The language of § 2L1.2 says that “crime of
violence” means that which is in subparagraph I, and includes that
which is in subparagraph II. Sexual abuse of a minor – forcible or
not – constitutes a crime of violence.2 So do all the other
offenses listed in subparagraph II, regardless of their elements
under various state laws.
Because such interpretation of U.S.S.G. § 2L1.2 is an issue of
first impression, to reach this conclusion we consider it by way of
analogy to similar language in other contexts.
(1) U.S.S.G. § 4B1.2
In United States v. DeLuca, 17 F.3d 6 (1st Cir. 1994), the
First Circuit construed U.S.S.G. § 4B1.2, which defines “crime of
2
This conclusion makes sense in light of the Sentencing
Commission (“Commission”) calling the recent amendment a “minor
change[]... to provide definitions....” U.S.S.G., Manual, App. C
Supp., Amendment 632. Before amendment, § 2L1.2(b)(1)(A) provided
sentence enhancement for a prior “aggravated felony”. U.S.S.G.,
Manual (2000 ed.) “Aggravated felony” was defined at 8 U.S.C. §
1101(a)(43)(A) to include “sexual abuse of a minor”. The
Commission’s inclusion of sexual abuse of a minor as a “crime of
violence” in the 2001 amendment brings the definition into the
guideline, instead of cross-referencing the United States Code.
4
violence” for purposes of applying a career-offender enhancement.3
The DeLuca court held the express listing of extortion was a
“formidable obstacle” to an argument that it should not be
considered a “crime of violence”, even if the particular extortion
statute does not require use of force. Id. at 8. The First Circuit
held that “the wording of the guideline tells us unequivocally that
the Sentencing Commission believed that extortion, by its nature,
should be classified as a crime of violence. A defendant who seeks
to exclude a specifically enumerated offense from the sweep of
section 4B1.2 must shoulder a heavy burden of persuasion.” Id.; see
3
The U.S.S.G. § 4B1.2 definition of “crime of violence” is:
any offense under federal or state law punishable by
imprisonment for a term exceeding one year that –
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(ii) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.
Application note 1 reads in pertinent part:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted..., by its
nature, presented a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a) and comment, application note 1.
5
also United States v. Shane Clements, 144 F.3d 981, 983 (6th Cir.
1998) (comparable analysis of extortion offense as “crime of
violence” under § 4B1.2).
This court has held similarly. In United States v. Hornsby, 88
F.3d 336 (5th Cir. 1996), we held burglary of a habitation is a
“crime of violence” under § 4B1.2 because “burglary of a dwelling”
is listed therein. Id. at 339. The panel did not consider whether
the particular crime involved any use of threat or force. Id. In an
earlier case, this court was explicit that no such inquiry is
necessary when the prior offense is specifically listed in the
guideline. United States v. Guerra, 962 F.2d 484, 485-86 n.4 (5th
Cir. 1992).
These are not isolated holdings. See also United States v.
Fry, 51 F.3d 543, 546 (5th Cir. 1995) (holding manslaughter,
because it was specifically listed in the commentary to § 4B1.2 as
a “crime of violence,” is such); United States v. Flores, 875 F.2d
1110, 1113 (5th Cir. 1989) (same, regarding burglary of dwelling);
United States v. Coleman, 38 F.3d 856, 859 (7th Cir. 1994) (same,
noting “clear language” of guideline and “conclusive[ness]” of
meaning); United States v. McVicar, 907 F.2d 1, 1 (1st Cir. 1990)
(Breyer, J.) (the “short, conclusive answer” negating claim that
robbery was not a crime of violence is that the guideline lists it
as one); United States v. Claiborne, 132 F.3d 253, 254-55 (5th Cir.
1998) (Louisiana crime of attempted unauthorized entry of an
inhabited dwelling would be “crime of violence” under § 4B1.2 if it
6
were equivalent to “burglary of a dwelling”, because that is an
“enumerated crime[] listed in” that guideline).
By comparison, the application note to § 2L1.2 means that the
offenses listed in subparagraph II need not show actual, attempted,
or threatened use of force, for the precise reason that they are
explicitly listed. The Commission has predetermined that,
regardless of their circumstances or the way they are defined by
state laws, the listed offenses are inherently violent and
forceful, or inherently risk violence and use of force. Thus, their
enumeration in the commentary ensures that they are treated as
“crimes of violence”. As the Seventh Circuit stated in United
States v. Rutherford, 54 F.3d 370, 378 (7th Cir. 1995), “the
Commission has dispensed with the need for judicial classification”
of offenses such as burglary, arson, and extortion, because it has
already decided that they entail a high enough degree of risk to
classify them in advance as violent.4 In other words, it has
“determined that certain crimes – regardless of the precise conduct
– are inherently violent. Thus, for purposes of determining career
offender status under the Guidelines, there is no such thing as a
non-violent kidnapping or a non-violent burglary of a dwelling.”
United States v. Telesco, 962 F.2d 165, 166 (2d Cir. 1992)
(construing § 4B1.2). Likewise, for purposes of determining “crime
of violence” under § 2L1.2, there is no such thing as non-violent
4
The Seventh Circuit was interpreting U.S.S.G. § 4B1.2.
7
sexual abuse of a minor.
It is of no consequence that the structure and syntax of the
definitions of “crime of violence” in § 2L1.2 and § 4B1.2 differ
slightly. While the § 2L1.2 definition has eliminated the
possibility that a non-enumerated crime risking use of physical
force could qualify as a “crime of violence”, that is not relevant
here, and in all other substantive respects the two definitions are
substantially the same and should be consistently construed.5
(2) Outside the Guidelines
The Supreme Court engaged in similar analysis in a non-
guidelines context. In Taylor v. United States, 495 U.S. 575, 110
S. Ct. 2143, 109 L. Ed. 2d 607 (1990), the Court interpreted
“violent felony” as defined in 18 U.S.C. § 924(e):
[A]ny crime punishable by imprisonment for a term
exceeding one year... that –
(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, or otherwise
involves conduct that presents a serious potential risk
of physical injury to another.
The Court was called upon to decide how to determine whether
an offense is a “burglary” within the meaning of § 924(e). In doing
5
Further, the commentary to both § 2L1.2 and § 4B1.2 is binding,
and equivalent in force to the guideline language itself, as long
as the language and the commentary are not inconsistent. Stinson v.
United States, 508 U.S. 36, 42-3, 113 S. Ct. 1913, 1917-18, 123 L.
Ed. 2d 598 (1993).
8
so, it rejected an argument similar to Rayo-Valdez’s:
Petitioner essentially asserts that Congress meant to
include as predicate offenses only a subclass of
burglaries whose elements include ‘conduct that presents
a serious risk of physical injury to another,’ over and
above the risk inherent in ordinary burglaries. But if
this were Congress’ intent, there would have been no
reason to add the word ‘burglary’ to § 924(e)(2)(B)(ii),
since that provision already includes any crime that
‘involves conduct that presents a serious potential risk
of physical injury to another.’ We must assume that
Congress had a purpose in adding the word ‘burglary’ to
[the bill] before enacting it into law. The most likely
explanation, in view of the legislative history, is that
Congress thought that certain general categories of
property crimes – namely, burglary, arson, extortion, and
the use of explosives – so often presented a risk of
injury to persons... that they should be included in the
enhancement statute even though, considered solely in
terms of their statutory elements, they do not
necessarily involve the use or threat of force against a
person.
Taylor, 495 U.S. at 597, 110 S. Ct. At 2157.
This analysis reflects the principle that when interpreting a
statute, it is necessary to give meaning to all its words and to
render none superfluous. See TRW, Inc. v. Andrews, 534 U.S. 19,
, 122 S. Ct. 441, 449, 151 L. Ed. 2d 339 (2001); see also United
States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (guidelines
subject to rules of statutory construction and interpretation).
Were we to accept Rayo-Valdez’s claim that the list of offenses in
subparagraph II of the application note to U.S.S.G. § 2L1.2 is
meant only as a subset of the category described in subparagraph I,
then subparagraph II becomes virtually surplusage. This cannot be
right.
9
Instead, as the Court did in Taylor, we read subparagraph II
as providing a list of offenses that the Commission believed “so
often presented a risk of injury to persons... that they should be
included in the enhancement statute even though, considered solely
in terms of their statutory elements, they do not necessarily
involve the use or threat of force against a person.” Taylor, 495
U.S. at 597.
(3) Sexual Abuse of a Minor as Inherently Forceful
This court and others have held that sexual offenses by adults
against children carry the inherent risk of force upon or injury to
the child. In United States v. Velazquez-Overa, 100 F.3d 418 (5th
Cir. 1996), a panel of this court considered an earlier version of
U.S.S.G. § 2L1.2. That version referred to the definition of “crime
of violence” in 18 U.S.C. § 16, which includes a provision
describing crimes involving a substantial risk that force will be
used, similar to U.S.S.G. § 4B1.2. Id. at 420.
The heart of the discussion in Velazquez-Overa was whether the
Texas crime of indecency with a child under 17 involving sexual
contact is a crime of violence, on account of the inherent risk of
use of force. Id. at 421. This court held that it is:
[S]uch crimes typically occur in close quarters, and are
generally perpetrated by an adult upon a victim who is
not only smaller, weaker, and less experienced, but is
also generally susceptible to acceding to the coercive
power of adult authority figures. A child has very few,
if any, resources to deter the use of physical force by
an adult intent on touching the child. In such
circumstances, there is a significant likelihood that
10
physical force may be used to perpetrate the crime.
Id. at 422; see also United States v. Kirk, 111 F.3d 390, 394-96
(5th Cir. 1997) (construing sexual indecency with a child as a
“crime of violence” under U.S.S.G. § 4B1.2); United States v.
Pierce, 278 F.3d 282, 290 (4th Cir. 2002) (construing indecent
liberties with a child as a “crime of violence” under § 4B1.2);
United States v. Coronado-Cervantes, 154 F.3d 1242, 1243-45 (10th
Cir. 1998) (construing sexual contact with a minor as a “crime of
violence” under § 4B1.2).
The question addressed in Velazquez-Overa is not the precise
question presented in this case, because risk of force or injury is
no longer part of the § 2L1.2 definition of “crime of violence”.
Nevertheless, Velazquez-Overa is instructive because it shows our
court’s reasons for concluding that sexual abuse of a minor is
inherently violent. Those reasons are consistent with the
Commission’s decision to list sexual abuse of a minor as a “crime
of violence”, regardless of its specific elements. See also
U.S.S.G. § 2A3.1 comment, background (“sexual offenses addressed in
this section [including 18 U.S.C. §§ 2241 and 2242, which can be
violated by abusing children under 16 even without use of force]
are crimes of violence”).
(4) Language of U.S.S.G. § 2L1.2
Rayo-Valdez argues that the adjective “forcible” in
subparagraph II of U.S.S.G. § 2L1.2 modifies not only “sex
11
offenses” but also “sexual abuse of a minor”.6 This contention does
not square with common English grammar, nor with the principle of
statutory construction already observed. If a particular occasion
of sexual abuse of a minor must be forcible to come within the
guideline, then it would already be described by the term “forcible
sex offenses” and the parenthetical “including sexual abuse of a
minor” would be redundant. A guideline should not be interpreted to
render any part of it superfluous. See TRW Inc., supra; Vickers,
supra.
The more reasonable and grammatically sensible meaning of the
phrase “forcible sex offenses (including sexual abuse of a minor)”
is that sexual abuse of a minor is a “crime of violence”, even if
no element of physical force is necessary to prove it. This takes
account of the inherent nature of the offense, as discussed above,
and squares with the proper interpretation of the entire note.
Sufficiency of the Indictment
We review de novo a challenge to the sufficiency of the
indictment. United States v. Davis, 226 F.3d 346, 353 (5th Cir.
2000).
Rayo-Valdez contends that a prior aggravated felony should be
considered an essential element of the crime of illegal re-entry
under 8 U.S.C. § 1326, and therefore his indictment is
6
Subparagraph II, in relevant part, reads “includes... forcible
sex offenses (including sexual abuse of a minor)....”
12
insufficient. However, he concedes in his brief that the Supreme
Court has already decided that point against him. Almendarez-Torres
v. United States, 523 U.S. 224, 229, 118 S. Ct. 1219, 1223, 140 L.
Ed. 2d 350 (1998). We must follow that precedent, which has not
been overruled by the only court with the power to do so, the
Supreme Court. Agostini v. Felton, 521 U.S. 203, 227, 117 S. Ct.
1997, 2012, 138 L. Ed. 2d 391 (1997).
CONCLUSION
Because we hold that sexual abuse of a minor is a “crime of
violence” under U.S.S.G. § 2L1.2, and Rayo-Valdez’s insufficient
indictment argument is precluded by Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), we
AFFIRM.
13