[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
April 29, 2004
No. 03-10753 THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 02-00281 CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CHAVARRIYA-MEJIA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________
(April 29, 2004)
Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jose Chavarriya-Mejia pleaded guilty to illegal entry
into the United States. He appeals his sentence, arguing that the district court
erred in applying a 16-level increase under U.S.S.G. § 2L1.2 because statutory
rape is not a “crime of violence.”1
BACKGROUND
In 1994 or 1995, Chavarriya-Mejia illegally entered the United States.
While in the United States, Chavarriya-Mejia was convicted by a Kentucky state
court of an aggravated felony: rape in the third degree. What Kentucky law
1
We do not consider Chavarriya-Mejia’s argument that his crime must satisfy both
subparts of § 2L1.2 because at oral argument he conceded that this Court has previously rejected
that interpretation. See United States v. Fuentes-Rivera, 323 F.3d 869, 871-72 (11th Cir. 2003)
(stating that the subparts present alternative definitions of the term “crime of violence”).
2
defines as rape in the third degree is commonly known as “statutory rape.”2 See
Ky. Rev. Stat. § 510.060.
After Chavarriya-Mejia’s trial in Kentucky, he was deported. He later
reentered the United States illegally and was arrested. Thereafter, the government
brought immigration charges against him.
Chavarriya-Mejia pled guilty to reentry after deportation in violation of 8
U.S.C. § 1326(a) and (b)(2). At sentencing, the district court applied the
appropriate sentencing guideline, U.S.S.G. § 2L1.2, and determined that
Chavarriya-Mejia’s base-offense level was 8. After concluding that statutory rape
was a “crime of violence,” the district court increased the offense level by 16
levels for Chavarriya-Mejia’s rape conviction.
2
Kentucky Revised Statute § 510.060 states:
(1) A person is guilty of rape in the third degree when:
(a) He engages in sexual intercourse with another person who is incapable of
consent because he is mentally retarded;
(b) Being twenty-one (21) years old or more, he engages in sexual intercourse
with another person less than sixteen (16) years old; or
(c) Being twenty-one (21) years old or more, he engages in sexual intercourse with
another person less than eighteen (18) years old and for whom he provides a foster
family home as defined in KRS 600.020.
3
DISCUSSION
This Court reviews de novo a district court’s interpretation and application
of the Sentencing Guidelines. United States v. Goolsby, 908 F.2d 861, 863 (11th
Cir. 1990). We conclude that statutory rape is a crime of violence under the plain
language of § 2L1.2. Cf. United States v. Meader, 118 F.3d 876, 885 (1st Cir.
1997) (concluding that statutory rape is a crime of violence under § 4B1.1) United
States v. Bauer, 990 F.2d 373, 375 (8th Cir. 1993) (same).
A “crime of violence” is “[a] crime that has as an element the use, attempted
use, threatened use, or substantial risk of use of physical force against the person
or property of another.” Black’s Law Dictionary 378 (7th ed. 1999). Statutory
rape is a kind of battery: unlawful physical contact. Sexual offenses by adults
against children inherently involve physical force against the children. See, e.g.,
United States v. Pereira-Salmeron, 337 F.3d 1148, 1153-54 (9th Cir. 2003). And,
regardless of whether a child consents, the law presumes that the physical contact
aspects of statutory rape were not lawfully consented to. See, e.g., Mugalli v.
Ashcroft, 258 F.3d 52, 58 n.6 (2d Cir. 2001) (stating that “[c]entral to the concept
of ‘statutory rape’ is the notion that a person less than a certain age is legally
incapable of giving consent”).
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Furthermore, at the time of Chavarriya-Mejia’s sentencing, the application
note to § 2L1.2 defined “crime of violence” as including “forcible sex offenses
(including sexual abuse of a minor).” U.S.S.G. § 2L1.2, cmt. n.1(B)(ii) (2002).3
Although Chavarriya-Mejia argues that the modifier “forcible” also modifies
“sexual abuse of a minor,” that argument must fail. As a general rule, we interpret
application notes to the Sentencing Guidelines “so that no words shall be
discarded as being meaningless, redundant, or mere surplusage.” United States v.
Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003) (quotations and citation
omitted).
The parenthetical “(including sexual abuse of a minor)” makes it plain that
“crime of violence” is a category that embraces any sexual abuse of a minor. See
Pereira-Salmeron, 337 F.3d at 1152; United States v. Vargas-Garnica, 332 F.3d
471, 474 n.1 (7th Cir. 2003); United States v. Gomez-Hernandez, 300 F.3d 974,
978-79 (8th Cir. 2002); United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.
2002).
“Sexual abuse” is “[a]n illegal sex act, esp[ecially] one performed against a
minor by an adult.” Black’s Law Dictionary 10 (7th ed. 1999). Because Kentucky
3
Because we conclude that statutory rape is a “crime of violence” under the plain
language of § 2L1.2, we need not determine whether amendments to § 2L1.2’s application notes
made subsequent to Chavarriya-Mejia’s sentencing apply to him.
5
law presumes that underage children are incapable of consent, statutory rape
necessarily involves a sexual act performed “against” the child. Therefore, we
determine that statutory rape is sexual abuse of a minor. See Pereira-Salmeron,
337 F.3d at 1155; Vargas-Garnica, 332 F.3d at 474 n.1.
Because we conclude that statutory rape is a crime of violence under §
2L1.2, we affirm the district court’s application of a 16-level enhancement to
Chavarriya-Mejia’s base-offense level.
AFFIRMED.
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