Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-8-2004
USA v. Billy
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2249
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"USA v. Billy" (2004). 2004 Decisions. Paper 851.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2249
___________
UNITED STATES OF AMERICA,
Appellee
v.
WANGUE BILLY, a/k/a Billy Wangue
Appellant
___________
On Appeal from the United States District Court
of the Virgin Islands
District Court Judge: The Honorable Thomas K. Moore
(No. 02-cr-00126-01)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 26, 2004
Before: FUENTES, SMITH & GIBSON, Circuit Judges.*
(Opinion Filed: April 8, 2004 )
_______
*
The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
_______________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
Appellant Wangue Billy (“Billy”) was convicted in Florida state court in 1999 of
performing lewd and lascivious acts in the presence of a minor after pleading nolo
contendere to the charges. The state of Florida charged that Billy, then 27, took a 14-
year old girl to two motels between April and May 1999 and on both occasions had
consensual sexual intercourse with her. Billy was deported to his native Haiti following
this conviction, but was arrested in St. Thomas, U.S. Virgin Islands in 2002 while trying
to reenter the continental United States. Billy did not contest the fact that he did not have
permission from the Attorney General to reenter the country. In sentencing Billy for
illegal reentry, the District Court applied an eight level increase set forth in U.S.S.G. §
2L1.2(b)(1)(C), which allows for such an increase when a defendant has been
“previously deported, or unlawfully remained in the United States, after a conviction for
an aggravated felony.”
Billy appeals from this eight level increase because, he argues, the underlying
Florida conviction was not an “aggravated felony” under the United States Sentencing
Guidelines or 8 U.S.C. § 1101, a statute classifying certain crimes as aggravated felonies
for the purposes of immigration and deportation (and which defines an aggravated felony
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as, among other things, sexual abuse of a minor). Because we disagree with Billy’s
arguments, we will affirm the sentence imposed by the District Court.
In 1999, when Billy was convicted in Florida, the relevant statute stated:
A person who:
...
(4) Knowingly commits any lewd or lascivious act in the presence of any
child under the age of 16 years; without committing the crime of sexual
battery, commits a felony.
Fla. Stat. ch. 800.04(4)(1998). In support of his argument that conviction under this
statute does not constitute an aggravated felony, Billy notes that the Sentencing
Guideline applied by the District Court incorporates the definition of “aggravated felony”
from 8 U.S.C. § 1101(a)(43)(A), which includes in its definition “murder, rape, or sexual
abuse of a minor.” Billy points out that although Congress did not define sexual abuse in
this provision, it did define the term in 1986 when it created the offense “sexual abuse of
a minor or ward” in 18 U.S.C. § 2243. Billy argues that because the definition of sexual
abuse in § 2243 contains a requirement that there be physical sexual contact with a
minor, and because the Florida provision under which he was convicted did not require
such proof, his conviction does not fall within the definition of sexual abuse set forth by
Congress.
Although this is a clever argument, we find it unconvincing, and instead are
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persuaded by the reasoning of the Court of Appeals for the Eleventh Circuit in United
States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001). Padilla, a native and citizen of
Honduras who had previously been deported and illegally returned to the United States,
pleaded guilty to illegal reentry. Prior to his deportation, Padilla was charged with
violation of Florida Statute § 800.04, “Lewd, lascivious, or indecent assault or act upon
or in presence of child; sexual battery,” the same statute at issue here. Like Billy, Padilla
pleaded nolo contendere to the charge. The district court concluded that the conviction
for lewd assault constituted an aggravated felony and therefore applied an enhancement
to Padilla’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (the court was
applying an older version of the Guidelines). 247 F.3d at 1159. The Eleventh Circuit
held that the definition of “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43) includes a
violation of Florida Statute § 800.04, regardless of whether there is evidence in the
record that the defendant actually physically touched the victim. Id. at 1164. Padilla had
made the same argument that Billy raises here, that the courts should look to Congress’s
definition of sexual abuse in 18 U.S.C. § 2241 et seq., but the Eleventh Circuit rejected
that argument, noting that in 8 U.S.C. § 1101(a)(43), where Congress intended an
aggravated felony to depend on federal statutory law, it explicitly included the statutory
cross-reference in the subsection. It did not make any reference to 18 U.S.C. § 2241, and
therefore the Eleventh Circuit concluded that Congress did not intend such a cross-
reference. We find this approach persuasive, and also note that Congress was probably
4
aware that many of the underlying deportable convictions for sexual abuse would be state
convictions, and perhaps for that reason purposefully omitted a reference to federal
substantive law.
We also agree with the Eleventh Circuit that the language in § 1101(a)(43) is
“fairly self-evident,” thereby obviating the need to resort to other statutory language.
Padilla-Reyes, 247 F.3d at 1163. While we agree with Billy that the Florida statute
encompasses acts involving physical contact as well as acts that do not, we disagree that
a conviction under the statute does not therefore constitute sexual abuse of a minor.
Rather, the words “sexual abuse” convey that the perpetrator’s intent in committing the
offense is to achieve “libidinal gratification,” which does not necessarily require physical
contact. Id. For these reasons, we are not persuaded that we must look outside the
language of § 1101(a)(43) in this case, and we conclude that Florida’s lewd and
lascivious conduct statute does encompass sexual abuse.
Because a violation of Florida Statute § 800.04 qualifies as “sexual abuse of a
minor” under 8 U.S.C. § 1101(a)(43)(A), the District Court did not err in applying an
eight-level enhancement for a prior aggravated felony conviction pursuant to U.S.S.G. §
2L1.2(b)(1)(C). The judgment of the District Court is therefore affirmed.
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