In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4101
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARIEL VARGAS-GARNICA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02-CR-50035—Philip G. Reinhard, Judge.
____________
ARGUED APRIL 14, 2003—DECIDED JUNE 10, 2003
____________
Before CUDAHY, POSNER, and EASTERBROOK, Circuit
Judges.
CUDAHY, Circuit Judge. Vargas-Garnica appeals the
enhancement of his sentence for illegal reentry by a de-
ported alien based on an earlier statutory rape convic-
tion. Because the district court found that statutory rape
is a “crime of violence” under U.S. Sentencing Guide-
lines Manual § 2L1.2(b)(1)(A)(ii) (“U.S.S.G.”), it enhanced
Vargas-Garnica’s sentence by 16 levels. Vargas-Garnica
argues that the earlier conviction should be classified as
an “aggravated felony,” and result in only an 8-level
sentence increase. The district court’s analysis of § 2L1.2
was correct and we affirm.
2 No. 02-4101
I.
In February 2000, Ariel Vargas-Garnica pleaded guilty
to a charge of Unlawful Sexual Intercourse with a Minor
Who is More Than Three Years Younger (which we will
refer to by its traditional, generic name of “statutory rape”),
under California Penal Code § 261.5(c), and was sentenced
to a 270-day term of imprisonment. Vargas-Garnica was
nineteen years old at the time; the victim, fourteen years
old. Because Vargas-Garnica was an illegal alien, at the
conclusion of his term of imprisonment he was deported
to Mexico. Vargas-Garnica then illegally reentered the
United States. In May 2002, Vargas-Garnica was ar-
rested. He was charged with, and pleaded guilty to, illegally
reentering the United States after deportation, subsequent
to commission of an aggravated felony. 8 U.S.C. § 1326(a)
and (b). In his plea agreement, Vargas-Garnica retained
the right to dispute the degree of the increase in his
sentence attributable to his statutory rape conviction. The
government maintained that Vargas-Garnica’s statutory
rape conviction qualified as a “crime of violence” under
Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), and should re-
sult in a 16-point enhancement of Vargas-Garnica’s sen-
tence. Vargas-Garnica, on the other hand, argued that
his statutory rape conviction was merely an “aggravated
felony,” and warranted only an 8-point sentence enhance-
ment under U.S.S.G. § 2L1.2(b)(1)(C). The presentence
investigation report’s findings agreed with the government’s
position, and recommended a 16-point enhancement for
the statutory rape conviction. The district court agreed,
and sentenced Vargas-Garnica to 46 months. This appeal
followed.
II.
The district court’s interpretation of § 2L1.2 is a legal
conclusion that we review de novo. United States v.
Alvarenga-Silva, 324 F.3d 884, 886 (7th Cir. 2003).
No. 02-4101 3
A.
Vargas-Garnica’s principal argument is that a “crime
of violence” requires that there have been an element of
force specifically present in the conduct giving rise to the
earlier conviction. This argument appears to be based
on Application Note 1(B)(ii) to U.S.S.G. § 2L1.2, which
reads
“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 (in-
cluding sexual abuse of a minor), robbery,
arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2, cmt. n.1(B)(ii). The conjunctive “and,”
between subparagraphs (I) and (II), says Vargas-Garnica,
requires that the conviction satisfy both subparagraphs.
Hence, Vargas-Garnica argues, all crimes of violence
must have an element of physical force and also be one
of the enumerated offenses in subparagraph (II).1 But,
1
Vargas-Garnica does not effectively argue that his statutory
rape conviction is not one of the enumerated offenses listed in
subparagraph (II). (We do not consider his single conclusory
statement that statutory rape “is not a forcible sex offense” to
comprise an argument. Appellant’s Br. at 9.) Inasmuch as
arguments not raised in a party’s opening brief are waived, we
will not consider this issue. Hentosh v. Herman M. Finch Univ.
of Health Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir.
1999). However, even were the argument raised, we do not be-
lieve it has merit. Subparagraph (II) lists “sexual abuse of a
(continued...)
4 No. 02-4101
as we have noted elsewhere, the “and” in § 2L1.2 is fol-
lowed by “includes,” which is an illustrative construc-
tion, not a limiting construction. See Alvarenga-Silva, 324
F.3d at 887; United States v. Vasquez-Abarca, No. 02-1727,
61 Fed. Appx. 243, 245 (7th Cir. Feb. 14, 2003). It is suffi-
cient if the prior conviction either satisfies the general
criterion involving the use of force as described in sub-
paragraph (I), or is one of the specifically enumerated
offenses in subparagraph (II). In this respect, our inter-
pretation of § 2L1.2 is in accord with that of the Fifth,
Eighth and Eleventh Circuits. See United States v.
Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003); United
States v. Vargas-Duran, 319 F.3d 194, 195 (5th Cir. 2003);
United States v. Gomez-Hernandez, 300 F.3d 974, 979
(8th Cir. 2002).
Vargas-Garnica also points us towards commentary to
the 2001 amendment to U.S.S.G. § 2L1.2 that resulted
in, essentially, the guideline as it exists today. See U.S.S.G.
app. C, amend. 632. This amendment replaced a general 16-
level enhancement for an “aggravated felony” with the
more graduated structure for enhancement currently pre-
sent in § 2L1.2. Because this amendment was motivated
by a desire to reserve the 16-level enhancement for the
most serious felonies, Vargas-Garnica argues that a 16-
level enhancement for what he terms a consensual act
violates the “clear intention” of the amendment to § 2L1.2.
Appellant’s Br. at 10. Unfortunately, the plain language
of § 2L1.2 dooms Vargas-Garnica’s argument. The amend-
ment of § 2L1.2 to expressly include “sexual abuse of a
minor” as a “crime of violence” warranting a 16-level
1
(...continued)
minor” as an enumerated offense, and Unlawful Sexual Inter-
course with a Minor Who is More Than Three Years Younger,
even without an element of force, constitutes sexual abuse of a
minor.
No. 02-4101 5
enhancement demonstrates that, whatever else motivated
the amendment, there was no intention to exclude a
conviction such as Vargas-Garnica’s from precisely such a
16-level enhancement.
Vargas-Garnica’s conviction for statutory rape involves
sexual abuse of a minor, which is one of the enumerated
offenses listed in application note 1(B)(ii)(II) to § 2L1.2.
Therefore, under § 2L1.2(b)(1)(A)(ii), Vargas-Garnica was
previously deported after a conviction for a felony that is
a crime of violence, and his sentence in the present case
was appropriately increased by 16 levels.
B.
Vargas-Garnica also raises an objection to certain fac-
tual findings contained in his presentence report. The
presentence report’s description of the conduct underly-
ing his statutory rape conviction was taken from a police
report, which Vargas-Garnica alleges was one of many
police reports, some of which contained facts in conflict
with those chosen for his presentence report. Further,
Vargas-Garnica generally disputes the facts contained in
the presentence report. While the district court denied
Vargas-Garnica’s objection to the inclusion of these facts
in the presentence report, the court did state that it
would not consider the disputed facts in its sentencing
determination. And this procedure was correct. The char-
acter of a prior conviction used to enhance a defendant’s
sentence is generally based on the acts charged in the
indictment, not upon a deeper evidentiary inquiry into
the specific conduct of the offense. United States v. Shan-
non, 110 F.3d 382, 384 (7th Cir. 1997). In the present case,
there was no need for any facts beyond the allegations
of the indictment of which Vargas-Garnica was convicted,
and the district court made clear that the disputed facts
played no role in its determination of the proper sentenc-
6 No. 02-4101
ing enhancement for Vargas-Garnica. Vargas-Garnica
has presented no evidence that any disputed conduct de-
scribed in the presentence report entered into the calcu-
lation of his sentence (and, of course, we express no opin-
ion about the truth of these disputed contents of the pre-
sentence report). In this respect, Vargas-Garnica’s rights
at sentencing were adequately protected. See Fed. R.
Crim. Pro. 32(i)(3)(B).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-10-03