United States v. Carlos Perez-Perez , 737 F.3d 950 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS PEREZ-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:12-cr-00027-F-1)
Argued: October 30, 2013 Decided: December 18, 2013
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opinion, in
which Judge Motz and Judge Gregory joined. Judge Davis also
wrote a separate concurring opinion.
ARGUED: Bettina Kay Roberts, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
DAVIS, Circuit Judge:
The U.S. Sentencing Guidelines advise district courts to
increase by twelve or sixteen the offense level for a defendant
convicted of unlawfully entering or remaining in the United
States if the defendant has a prior felony conviction for “a
crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). “Sexual abuse of
a minor” is listed as a qualifying crime of violence. U.S.S.G. §
2L1.2 cmt. n.1(B)(iii). The issue in this case is whether Carlos
Perez-Perez’s prior North Carolina conviction for taking
indecent liberties with a minor, N.C. Gen. Stat. § 14-202.1(a), 1
constitutes sexual abuse of a minor, and therefore a crime of
violence within the meaning of the reentry Guideline. We are
constrained by our precedent, United States v. Diaz-Ibarra, 522
F.3d 343 (4th Cir. 2008), to hold that it does.
1
The text of the Indecent Liberties Statute provides, in
pertinent part, as follows:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of age or
more and at least five years older than the child in
question, he either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties with any
child of either sex under the age of 16 years for the
purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any
lewd or lascivious act upon or with the body or any
part or member of the body of any child of either sex
under the age of 16 years.
N.C. Gen. Stat. § 14–202.1(a).
2
Having previously entered this country unlawfully, Perez-
Perez, a Mexican citizen, who was then 24 years old, had sex
with a 15-year old girl in 2001. 2 He was charged in North
Carolina with statutory rape, N.C. Gen. Stat. § 14-27.7A(a), but
he pled guilty to taking indecent liberties with a minor. Id. §
14-202.1. He was soon after deported to Mexico. Perez-Perez
unlawfully reentered the United States and was convicted in
federal district court in Texas of reentry by an alien after
deportation following an aggravated felony conviction. He was
again deported to Mexico in 2004.
After unlawfully entering the United States yet again,
Perez-Perez pled guilty in federal district court in North
Carolina to illegal reentry after deportation by an aggravated
felon. 8 U.S.C. §§ 1326(a) and (b)(2). Over his objection, the
district court concluded that Perez-Perez’s prior North Carolina
conviction for taking indecent liberties with a minor
constituted a crime of violence, and the court applied the
concomitant sixteen-level enhancement, U.S.S.G. § 2L1.2
(b)(1)(A), raising Perez-Perez’s sentencing range to forty-six
2
Our brief summary of the facts surrounding Perez-Perez’s
indecent liberties conviction relies on the bare contents of the
Pre-Sentence Report prepared by a United States Probation
Officer: “Investigation of this conviction revealed that the
defendant had sexual intercourse with a 15-year old female when
he was 24 years of age. Therefore, this conviction involves the
sexual abuse of a minor and the 16-level enhancement was
appropriately applied.” J.A. 68.
3
to fifty-seven months from a range of one to seven months. The
district court sentenced Perez-Perez to an imprisonment term of
forty-six months. He filed a timely notice of appeal.
Perez-Perez raises a single challenge on appeal: He argues
that the district court erred in finding that his prior North
Carolina conviction for taking indecent liberties with a minor,
N.C. Gen. Stat. § 14-202.1(a), qualifies categorically as sexual
abuse of a minor, and thus as a crime of violence within the
meaning of the reentry Guideline. 3 U.S.S.G. § 2L1.2(b)(1)(A).
Because his contention raises a question of law, we review the
district court’s ruling de novo. Diaz-Ibarra, 522 F.3d at 347.
At base, the categorical approach requires that “we look
only to the statutory definition of the state crime and the fact
of conviction to determine whether the conduct criminalized by
the statute, including the most innocent conduct, qualifies as a
‘crime of violence.’” Id. at 348. Application of this approach
generally involves a four-step process. First, we identify which
of the listed crimes in the Commentary to the Guideline (“the
3
The parties have proceeded on the assumption that the
district court applied the categorical approach rather than the
modified categorical approach in its assessment of Perez-Perez’s
indecent liberties conviction. See generally Descamps v. United
States, 133 S. Ct. 2276, 2285 (2013). As the Government supplied
the district court with no Shepard-approved documents, see
Shepard v. United States, 544 U.S. 13, 16 (2005), we also assume
that, necessarily, the district court applied a categorical
approach. Descamps, 133 S. Ct. at 2284-85.
4
Guideline crime”) most closely approximates the prior state
crime. 4 United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th
Cir. 2013). Second, we identify the “generic definition” of the
Guideline crime. United States v. Bonilla, 687 F.3d 188, 192
(4th Cir. 2012). Third, we compare the elements of the prior
state crime to those in the generic definition of the Guideline
crime. Id. If the elements of the prior state crime “correspond
in substance” to those of the Guideline crime, then the prior
state crime is a crime of violence and our inquiry comes to an
end. Cabrera-Umanzor, 728 F.3d at 350 (citations and
modifications omitted). If, however, the elements do not
correspond in substance, then we proceed to the fourth step,
which involves an assessment of whether the scope of conduct
criminalized by the prior state crime is categorically overbroad
when compared to the generic definition of the Guideline crime.
United States v. Rangel-Castaneda, 709 F.3d 373, 377-79 (4th
Cir. 2013) (citation omitted). A prior state offense whose
elements criminalize a broader scope of conduct than the
Guideline crime is not categorically a crime of violence.
4
If none of the listed Guideline crimes are suitable for
comparison, then we assess whether the prior state crime is
captured by the “use of force” clause, which sweeps within its
ambit “any other 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.” U.S.S.G. § 2L1.2
cmt. n. 1(B)(iii). The use of force clause is not at issue in
this case.
5
The paradigmatic exemplar of this structured approach that
proceeded through to step four is Rangel-Castaneda, in which we
held that a Tennessee statutory rape law that made the age of
consent eighteen was categorically broader than the generic
definitions of statutory rape, forcible sex offense, and sexual
abuse of a minor. Id. at 378-81. Accordingly, the defendant’s
federal sentence for unlawful reentry could not be increased by
sixteen offense levels under U.S.S.G. § 2L1.2(b)(1)(A) on the
basis of his prior conviction under the Tennessee law. Id. at
381.
Applying the above analytical framework to the case at
hand, we conclude that Perez-Perez’s conviction for taking
indecent liberties with a minor qualifies categorically, at step
three of the above framework, as sexual abuse of a minor, and
therefore as a crime of violence within the meaning of the
reentry Guideline. The listed Guideline crime that most closely
approximates the North Carolina crime of taking indecent
liberties with a minor is “sexual abuse of a minor,” a term that
we have previously construed to mean a “perpetrator’s physical
or nonphysical misuse or maltreatment of a minor for a purpose
associated with sexual gratification.” Diaz-Ibarra, 522 F.3d at
352 (quotations and citation omitted). Although the North
Carolina statute appears to encompass two distinct categories of
6
conduct, it has been construed by North Carolina courts as one
crime having five elements:
(1) the defendant was at least 16 years of age; (2) he
was five years older than his victim; (3) he willfully
took or attempted to take an indecent liberty with the
victim; (4) the victim was under 16 years of age at
the time the alleged act or attempted act occurred;
and (5) the action by the defendant was for the
purpose of arousing or gratifying sexual desire.
State v. Coleman, 684 S.E.2d 513, 519 (N.C. Ct. App. 2009). 5
Comparing our generic definition of sexual abuse of a minor
with the elements of the North Carolina indecent liberties crime
reveals both that the elements of the latter correspond in
substance with our definition, and that each offense therefore
contemplates criminalization of the same conduct: both target
conduct directed towards minors, both require a mental element
focused on sexual gratification, and both cast a broad net in
capturing physical or nonphysical conduct. Specifically, we are
unable to say that the statutory element of “willfully t[aking]
or attempt[ing] to take an indecent liberty” exceeds the scope
of what we have required: “misuse or maltreatment” of a minor. 6
5
Judge King recognized this five-point constellation of
elements of the North Carolina indecent liberties statute in
United States v. Vann, 660 F.3d 771, 782-83 (4th Cir. 2011)
(King, J., concurring), as did the Ninth Circuit in United
States v. Baza-Martinez, 464 F.3d 1010, 1016 (9th Cir. 2006).
See also Vann, 660 F.3d at 791-93 (Davis, J., concurring).
6
The first subsection of the North Carolina statute targets
“immoral, improper, or indecent liberties,” N.C. Gen. Stat. §
(Continued)
7
Perez-Perez makes two arguments in contending that his
conviction does not constitute sexual abuse of a minor. First,
he argues that the North Carolina crime is broader than Diaz-
Ibarra’s definition of sexual abuse of a minor because the
statute “does not require that the victim even be aware of the
perpetrator’s presence, much less that the act occur within the
physical presence of the child.” App. Br. 14. Second, he argues
that our decision in United States v. Vann, 660 F.3d 771 (4th
Cir. 2011) (en banc) (per curiam), establishes that his
conviction for taking indecent liberties with a minor is not “a
crime of violence.” These contentions are unpersuasive.
Perez-Perez’s first argument, that the legal sufficiency of
constructive presence under the North Carolina statute renders
it broader than sexual abuse of a minor, State v. Every, 578
S.E.2d 648, 647 (N.C. Ct. App. 2003), is unavailing because it
elides the extraordinary breadth of our definition of the
Guideline crime. In Diaz-Ibarra, we agreed with the Eleventh
Circuit that a perpetrator can engage in conduct that
constitutes sexual abuse when he is “in the actual or
constructive presence” of the minor. 522 F.3d at 351 n.6. Thus,
14-202.1(a)(1), while the second targets “lewd and lascivious
act[s]” with the body of a minor, id. § 14-202.1(a)(2); both
types of conduct can be construed as “physical or nonphysical
misuse or mistreatment” of a minor.
8
with respect to the elements of a perpetrator’s presence (or,
what is closely related thereto, a victim’s awareness or
knowledge of his presence), our definition of the Guideline
crime and the elements of the North Carolina indecent liberties
offense are effectively coterminous in that neither requires the
defendant’s actual presence or the victim’s awareness or
knowledge of the defendant’s presence.
Perez-Perez’s second argument, that Vann militates in favor
of concluding that taking an indecent liberty with a minor is
not a “crime of violence,” ultimately fails because accepting it
would require us to set aside our precedent in Diaz-Ibarra,
which we cannot do. See McMellon v. United States, 387 F.3d 329,
332 (4th Cir. 2004) (en banc) (recognizing “the basic principle
that one panel cannot overrule a decision issued by another
panel”). It is true that in Vann we held, proceeding on an
assumption that the modified categorical approach applied, that
the Government had failed to prove that the specific defendant’s
North Carolina conviction for taking indecent liberties with a
minor was a “violent felony” within the meaning of the Armed
Career Criminal Act. 7 660 F.3d at 776. But Vann does not dictate
7
In his concurring opinion in Vann, Judge King, joined by
all three members of the present panel, concluded not only that
application of the modified categorical approach was improper,
but also that a North Carolina conviction of taking an indecent
liberty with a minor is not categorically a violent felony
(Continued)
9
reversal in this case, as the per curiam opinion of the en banc
court did not purport to disturb Diaz-Ibarra’s prior definition
of the generic crime of “sexual abuse of a minor.” 8 Moreover,
unlike the reentry Guideline, the Armed Career Criminal Act has
no list of enumerated crimes and contains only the “residual”
and “force” clauses, neither of which expressly contemplate
sexual offenses involving minors. Given these distinguishing
characteristics, we are constrained to agree with the Government
that Vann does not control, and that there is no interpretation
of the North Carolina indecent liberties statute that does not
fit within Diaz-Ibarra’s extraordinarily broad generic
definition of “sexual abuse of a minor.”
within the meaning of the Armed Career Criminal Act. Vann, 660
F.3d at 782 (King, J., concurring). We acknowledge that at least
eight members of the en banc court in Vann expressed the view
that the effect of convictions under the North Carolina indecent
liberties statute properly could be assessed under the modified
categorical approach. See Vann, 660 F.3d at 798 (Keenan, J.,
concurring, joined by Traxler, C.J., and Agee, Wynn, and Diaz,
JJ.); id. at 801 (Wilkinson, J., concurring); id. at 807
(Niemeyer, J., joined by Shedd, J., concurring in part and
dissenting in part). Whether, in light of the Supreme Court’s
intervening decision in Descamps v. United States, 133 S. Ct.
2276 (2013), the views of those judges might today be altered is
a subject about which we need not and do not speculate.
8
Notably, in an alternative holding, the opinion in Diaz-
Ibarra indicates that it would have reached the same holding by
application of the modified categorical approach. See 522 F.3d
at 353 n.7. But see supra n.7.
10
In short, Diaz-Ibarra mandates the result here. It would be
difficult, if not impossible, to conceptualize a situation in
which a perpetrator “willfully” took or attempted to take an
“immoral, improper, or indecent liberty” with a minor that did
not involve his “physical or nonphysical misuse or maltreatment
of [that] minor for a purpose associated with sexual
gratification”. Even if we could come up with such a case, it
would likely run counter to the Supreme Court’s admonishment
that the categorical analysis “requires more than the
application of legal imagination to a state statute’s language.”
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)
(regarding the Immigration and Nationality Act). We are tasked
instead with assessing whether there is “a realistic
probability, not a theoretical possibility, that [North
Carolina] would apply its statute to conduct that falls outside
the generic definition of a crime.” Id. Accordingly, we hold
that a conviction for taking indecent liberties with a minor
qualifies categorically as sexual abuse of a minor under Diaz-
Ibarra and is therefore a crime of violence within the meaning
of the reentry Guideline and its Commentary. U.S.S.G. § 2L1.2
cmt. n. 1(B)(iii). The judgment is
AFFIRMED.
11
DAVIS, Circuit Judge, concurring:
Today’s decision is compelled by United States v. Diaz-
Ibarra, 522 F.3d 343, 352 (4th Cir. 2008), the case in which we
described “sexual abuse of a minor” for purposes of identifying
“a crime of violence” under U.S. Sentencing Guideline §
2L1.2(b)(1)(A)(ii) (the reentry Guideline), to mean a
“perpetrator’s physical or nonphysical misuse or maltreatment of
a minor for a purpose associated with sexual gratification.”
(Quotations and citation omitted). I use the term “describe”
rather than “define” quite purposefully. This is because in
Diaz-Ibarra, rather than undertake to “define” a generic crime
of sexual abuse of a minor by setting out a list of elements of
such a hypothetical generic crime, we simply engaged in
dictionary surfing to arrive at an expansive description of what
we think such a crime might cover. Today’s decision demonstrates
the limitlessness of our Circuit’s conception of “sexual abuse
of a minor”; accordingly, I respectfully submit that the time
has come to reconsider Diaz-Ibarra.
There are several discrete problems with Diaz-Ibarra’s
construction of “sexual abuse of a minor.”
First, it is untethered from the very term it is ultimately
intended to define: “crime of violence.” U.S.S.G. §
2L1.2(b)(1)(A)(ii) (emphasis added). “Nonphysical misuse or
maltreatment” certainly includes conduct that does not involve
12
physical force with the intent to cause harm, and therefore the
definition effectively renounces “violence,” the very word it
seeks to define. See Black’s Law Dictionary (9th ed. 2009)
(defining “violence” as “[t]he use of physical force, usu.
accompanied by fury, vehemence, or outrage; esp., physical force
unlawfully exercised with the intent to harm”). There is no more
probative evidence of this than a sample of cases involving
North Carolina’s indecent liberties statute, N.C. Gen. Stat. §
14-202.1(a). A defendant who secretly videotapes a minor
undressing when they are not in the same room, State v. McClees,
424 S.E.2d 687, 654 (N.C. Ct. App. 1993), or who has a sexually
explicit conversation with a minor over the phone, State v.
Every, 578 S.E.2d 642, 648 (N.C. Ct. App. 2003), or who hands a
sexually explicit note to a minor soliciting her
(unsuccessfully) to have sex with him for $10, State v. McClary,
679 S.E.2d 414, 418 (N.C. Ct. App. 2009), is not guilty of a
crime of violence, 1 or indeed, even engaged in conduct in which
1
The Government stated at oral argument that these cases
are extreme outliers and that our task is to envision the
paradigm case of taking an indecent liberty with a minor. But
the North Carolina courts’ construction of the statute and its
legislature’s manifest intent suggest that these cases are
actually intended to be the heart of the conduct criminalized.
Indeed, the essence of this statute is its breadth: “[T]he
variety of acts included under the statute demonstrate that the
scope of the statute’s protection is to encompass more types of
deviant behavior and provide children with broader protection
than that available under statutes proscribing other sexual
(Continued)
13
violence against a victim is imminently likely. 2 Hereafter,
however, convictions for all of these acts will be treated
categorically as sexual abuse of a minor and thus as a crime of
violence under our application of Diaz-Ibarra to today’s case. 3
We declined in Diaz-Ibarra to derive a definition of
“sexual abuse of a minor” from a concern about violence and
physical force because the Sentencing Commission had earlier
amended the Commentary to make clear that the absence of
physical (violent) force did not preclude “sexual abuse of a
minor” from qualifying as a “crime of violence.” Diaz-Ibarra,
acts.” State v. McClary, 679 S.E.2d 414, 418 (N.C. Ct. App.
2009) (citations and quotations omitted) (emphasis added). We
should take the North Carolina courts at their word. In short,
not only does the indecent liberties statute capture far more
conduct than does even a broadly acceptable definition of
“sexual abuse of a minor,” it is intentionally designed to do
just that. That is the gravamen of the opinions by Judge King
and myself in United States v. Vann, 660 F.3d 771 (4th Cir.
2011).
2
Cf. United States v. Thornton, 554 F.3d 443, 449 (4th Cir.
2009) (“Although nonforcible adult-minor sexual activity can
present grave physical risks to minors, and although states are
entitled to criminalize nonforcible adult-minor sexual activity
to protect minor victims from these risks, such risks are not
sufficiently ‘similar, in kind as well as in degree of risk
posed to the examples’ of burglary, arson, extortion, and crimes
involving explosives.”) (citation omitted).
3
I am not the first to recognize that these cases do not
involve crimes of violence: Judge King saliently made this point
in his concurrence in Vann, 660 F.3d at 785-86 (King, J.,
concurring), an opinion in which all three judges on today’s
panel joined.
14
522 F.3d at 349-50. Presumably, the reason for this was to give
adjudicative power to the Guideline’s “force clause” separate
and apart from the listed Guideline crimes; 4 the resulting
inference was that “sexual abuse of a minor” does not require
“use of physical force against the person of another” to qualify
as a crime of violence. Id. Similarly, and equally without
controversy, one can agree that “sexual abuse of minor” does not
require that the victim suffer an identifiable injury. Id. at
350-51.
Surely, however, there must actually be a victim of some
crime of violence, and that victim must suffer maltreatment of a
sort that is something more than the shock resulting from a
sexually-explicit telephone conversation. See State v. Brown,
590 S.E.2d 433, 436 (N.C. Ct. App. 2004) (“Our holding in
Every[, 578 S.E.2d at 647–49] stands for the proposition that
repeated, graphic, and explicit sexual conversations over the
4
The “force clause” is found in the Commentary to the
Guideline:
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible
sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any 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.
U.S.S.G. § 2L1.2 cmt. 3 (emphasis added).
15
phone concurrent with indicia of masturbation is sufficient to
allow a jury to conclude such actions amount to taking indecent
liberties.”).
Thus, even if in Diaz-Ibarra we were correct in our
assessment of the Sentencing Commission’s intent, we are
precluded from defining “sexual abuse of a minor” in a way
wholly untethered from the Guideline text – and that is so even
if the Commentary mandates such a result. See United States v.
Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (noting that
Commentary inconsistent with the Guideline text would be
rendered non-binding).
Post-Diaz-Ibarra case law from the Supreme Court sheds some
light on the interpretive limits that the word “violence” places
on our construction of these listed Guideline crimes. In Johnson
v. United States, 559 U.S. 133, 140 (2010), the Court, in
defining the term “physical force” as employed in the “force
clause” of the Armed Career Criminal Act, 5 rejected the
5
The “force clause” of the Armed Career Criminal Act reads
as follows:
[T]he term “violent felony” means any 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, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another[.]
(Continued)
16
Government’s contention that “physical force” should be
interpreted to include de minimis force as required by the
common law of battery; the Court stated that “[h]ere we are
interpreting the phrase ‘physical force’ as used in defining not
the crime of battery, but rather the statutory category of
‘violent felon[ies].’” Id. at 140. It concluded that “in the
context of a statutory definition of ‘violent felony,’ the
phrase ‘physical force’ means violent force – that is, force
capable of causing physical pain or injury to another person.”
Id. See also Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“[W]e
cannot forget that we ultimately are determining the meaning of
the term ‘crime of violence.’ The ordinary meaning of this term
. . . suggests a category of violent, active crimes[.]”); James
v. United States, 550 U.S. 192, 193 (2007) (pre-Diaz-Ibarra). In
other words, Johnson should be understood as standing for a
principle of statutory construction that the Supreme Court has
made particularly salient in federal sentencing cases: specific
terms that qualify the more general are still cabined by the
plain meaning of the general term. Applied here, Johnson’s
teaching buttresses the point that “sexual abuse of a minor”
18 U.S.C. § 924(e)(2)(B) (emphasis added).
17
qualifies the term “crime of violence,” and therefore must be
cabined by the operative term: violence.
Second, Diaz-Ibarra‘s description of “sexual abuse of a
minor” captures conduct that is not “sexual abuse.” Diaz-Ibarra
reduces “sexual abuse of a minor” into a crime entirely focused
on the defendant’s intent, 522 F.3d at 350, and thereby erases
from the analysis factors that are typically understood as
critical to defining sexual abuse of minors, such as the
severity of the conduct, the defendant’s presence, the degree of
the child’s involvement and awareness, coercion, the absence of
consent, and the existence of an injury to the victim. See David
Finkelhor, Current Information on the Scope and Nature of Child
Sexual Abuse, The Future of Children, Vol. 4, No. 2, at 32
(Summer/Fall 1994); David Finkelhor, The Prevention of Childhood
Sexual Abuse, The Future of Children, Vol. 19, No. 2, at 170-71
(Fall 2009). See also 18 U.S.C. § 2243 (making “a sexual act” an
element of the federal crime of “sexual abuse of a minor or
ward”); 28 C.F.R. § 115.6 (defining certain conduct as “sexual
abuse” in the context of the Prison Rape Elimination Act);
United States v. Baza-Martinez, 464 F.3d 1010, 1012 (9th Cir.
2006), rehearing denied, 481 F.3d 690 (9th Cir. 2007) (holding
that North Carolina’s indecent liberties statute is not “sexual
abuse of a minor”).
18
Third, Diaz-Ibarra’s description of sexual abuse of a minor
is untethered even from the criminal law of several states. For
example, Diaz-Ibarra isolated two critical features that were
elements of the Georgia statute under which the prior conviction
arose: “[1] a defendant who is in a child’s presence must commit
some immoral or indecent act with the intent to gratify his own
sexual desires or the desires of the child . . . [,] and [2] the
child must be at least minimally aware of the defendant’s
presence.” 522 F.3d at 353 (emphasis added). These features were
also elements of the Florida statute in the Eleventh Circuit
case on which Diaz-Ibarra based its description of “sexual abuse
of a minor.” United States v. Padilla-Reyes, 246 F.3d 1158, 1162
n.4 (11th Cir. 2001) (noting that the Florida statute targeted
“[l]ewd, lascivious, or indecent assault or act[s] upon or in
presence of child”) (quoting Fla. Stat. § 800.04) (emphasis
added). 6
6
These features of sexual abuse of a minor are also
elements, either explicitly or implicitly, of every comparable
state statute in the Fourth Circuit. Md. Code, Crim. Law § 3-
602(a)(4) (defining “sexual abuse” for purposes of sexual abuse
of a minor as “an act that involves sexual molestation or
exploitation of a minor, whether physical injuries are sustained
or not”); S.C. Code § 16-3-655 (providing that third-degree
criminal sexual conduct with a minor requires at a minimum an
“attempt to commit a lewd or lascivious act upon or with the
body, or its parts, of a child”); Va. Code § 18.2-67.4:2 and
18.2-67.10(6) (defining “sexual abuse” as an “act committed with
the intent to sexually molest, arouse, or gratify any person,
where” touching or causing touching is involved); W. Va. Code §
(Continued)
19
But unlike the statutes at issue in Diaz-Ibarra and
Padilla-Reyes, “presence” is not an element of our definition of
sexual abuse of a minor. (Nor is it an element of the North
Carolina indecent liberties statute, a point the state appellate
court has recognized. McClees, 424 S.E.2d at 689.) In other
words, Diaz-Ibarra eschewed what may be a common feature of
state child sexual abuse statutes, presence and/or physical
proximity, in favor of something more nebulous, a perplexing
choice given that the Supreme Court has said that our task in
formulating these generic definitions is to contemplate “the
generic sense in which the term is now used in the criminal
codes of most States.” Taylor v. United States, 495 U.S. 575,
598 (1990) (construing “burglary” in the Armed Career Criminal
Act). This is precisely what we did in United States v. Rangel-
Castaneda, 709 F.3d 373 (4th Cir. 2013) (holding that the
Tennessee statutory rape statute is broader than generic
statutory rape). We should revisit our concept of “sexual abuse
of a minor” and follow the approach we took in that case.
Let’s be honest. Because child sexual abuse involves a
particularly vulnerable population, emotions tend to gallop, and
understandably so; indeed, “sexual abuse of a minor” appears to
61-8D-5 (criminalizing any “attempt to engage in sexual
exploitation of, or in sexual intercourse, sexual intrusion or
sexual contact with, a child”).
20
have been included in the reentry Guideline not so much over a
fear of violence but because all decent people experience
boundless antipathy and abject opprobrium at the very thought of
such perpetrators. But our task is not to punish sex offenders; 7
rather, it is to give meaning to words chosen by legislators.
How we give meaning to words must be driven by their common
understanding and the context in which they are found. Violence,
abuse, injury, and the perpetrator’s presence are not just
relevant to assessing, as a factual matter, whether certain
conduct constitutes sexual abuse - they are also critical
limiting principles in defining what constitutes “sexual abuse
of a minor” for purposes of federal sentencing law. Although it
may be that not all of these factors should ultimately be built
into a definition of “sexual abuse of a minor,” they at least
are all starting points that Diaz-Ibarra rejected in favor of
breathtaking limitlessness.
7
As Judge Haynes has cogently observed:
We must also remember that federal sentencing is not
an opportunity to resentence the defendant for a state
crime. The state has already meted out a punishment it
thought appropriate. Here, the Texas court sentenced
Rodriguez to two years of imprisonment. The offense of
conviction in federal court was illegal reentry, not a
sexual crime.
United States v. Rodriguez, 711 F.3d 541, 569 n.2 (5th Cir.
2013) (en banc) (Haynes, J., concurring).
21
There is, however, an even broader point: One who surveys
our recent, on-going efforts to make sense of the reentry
Guideline will discover substantial dissonance, rapidly
approaching incoherence. Compare United States v. Montes-Flores,
736 F.3d 357 (4th Cir. 2013) (conviction under South Carolina
law for assault and battery of a high and aggravated nature not
a crime of violence), and United States v. Cabrera–Umanzor, 728
F.3d 347 (4th Cir. 2013) (conviction under Maryland’s child
abuse statute not a crime of violence), and United States v.
Torres–Miguel, 701 F.3d 165 (4th Cir. 2012) (conviction under
California law for willfully threatening to commit a crime that
would result in death or great bodily injury not a crime of
violence), and Rangel-Castaneda, 709 F.3d at 373 (conviction
under Tennessee law for statutory rape not a crime of violence),
and United States v. Gomez, 690 F.3d 194 (4th Cir. 2012)
(conviction under Maryland’s child abuse statute not a crime of
violence), with United States v. Aparicio–Soria, 721 F.3d 317
(4th Cir. 2013) (conviction under Maryland resisting arrest
statute a crime of violence), rehearing en banc granted, and
United States v. Medina-Campo, 714 F.3d 232 4th Cir. 2013)
(conviction under Oregon unlawful delivery of controlled
substance statute a predicate “drug trafficking offense”), and
United States v. Bonilla, 687 F.3d 188 (4th Cir. 2012)
(conviction under Texas law for burglary of a habitation a crime
22
of violence). We would do well to begin the clean-up process by
revisiting Diaz-Ibarra and thereby bring a measure of coherence
to the meaning of “sexual abuse of a minor” at the very least. 8
8
Judge Haynes again provides astute observations that are
relevant in this Circuit:
I write separately because this case highlights
the need for the Sentencing Commission to define
“sexual abuse of a minor” — a crime with few common-
law analogs. Against the backdrop of a patchwork of
state laws on the subject, this guideline is
singularly unhelpful . . . . We thus are left to
puzzle over nebulous terms that can mean different
things in different contexts, a result that frustrates
our ability to provide even-handed treatment to
similarly-situated, but geographically-diverse,
defendants.
* * *
[M]yriad offenses could fall under the broad
rubric of “sexual abuse of a minor.” The states, of
course, are free to criminalize a broad range of
“sexual” conduct so long as they stay within federal
constitutional bounds. But in deciding the propriety
of a federal sentencing enhancement — a uniquely
federal question — we must seek clarity and uniform
treatment of similarly-situated defendants. The
problem presented here is that, because of the vast
array of conduct that could be “sexual abuse of a
minor,” “one size does not fit all.” Although a
sixteen-level enhancement is too low for some of the
more vile cases we see in this area, it is too high
for others.
Rodriguez, 711 F.3d at 568-69 (Haynes, J., concurring)
(citations and footnotes omitted).
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