U.S. v. Zavala-Sustaita

• Citation: 214 F.3d 601
• Decision Date: 13 June 2000
• Docket Number: D,ZAVALA-SUSTAIT,No. 99-50911,99-50911
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN AGUSTINefendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 601

214 F.3d 601 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN AGUSTIN ZAVALA-SUSTAITA, Defendant - Appellant.

No. 99-50911

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

June 13, 2000

REVISED JUNE 29, 2000

Appeal from the United States District Court For the Western District of Texas

Before EMILIO M. GARZA, DeMOSS, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Juan Agustin Zavala-Sustaita ("Zavala") asks us to resolve a question of first impression in this circuit: whether sexual indecency with a child by exposure constitutes "sexual abuse of a minor" for purposes of the aggravated felony sentencing enhancement in Sentencing Guidelines § 2L1.2. Because we conclude that this offense is an aggravated felony, we affirm Zavala's sentence.

I

In 1990, Zavala pled guilty to two counts of indecency with a child in violation of Texas Penal Code § 21.11(a)(2). The counts were based on a single episode when he exposed himself in public and masturbated in front of a thirteen-year-old girl and a ten-year-old boy. He looked at the girl during the episode but he did not have physical contact with either child. Zavala received concurrent one-year sentences for the convictions, and he was deported later that year.

In 1999, Zavala pled guilty to the instant offense of illegal reentry after removal in violation of 8 U.S.C. § 1326. Citing Zavala's 1990 indecency convictions, the government argued that his § 1326 sentence should be enhanced because he had previously committed two "aggravated felonies." Zavala objected, arguing that a violation of Texas Penal Code § 21.11(a)(2) is not an aggravated felony. Finding that it was, the district court increased Zavala's offense level by sixteen points and sentenced him to seventy-seven months imprisonment.

Zavala now appeals the enhancement. The district court's characterization of Zavala's prior convictions is a question of law which we review de novo. See United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th Cir. 1996).

II

A defendant convicted of illegal reentry after removal is subject to a much longer sentence if he was previously removed "subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326(b)(2) (providing for up to a twenty-year sentence for former aggravated felons, increased from the normal sentence of no more than two years). The Sentencing Guidelines implement this enhancement in § 2L1.2, which increases the base offense level for a § 1326 violation from eight to twenty-four "[i]f the defendant previously was deported after a criminal conviction . . . for an aggravated felony."¹ United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(1)(A) (1998) (providing a sixteen-level enhancement for aggravated felons). The commentary to § 2L1.2 defines the term "aggravated felony" by referencing 8 U.S.C. § 1101(a)(43). See id. § 2L1.2 comment. (n.1). Section 1101(a)(43), in turn, lists various offenses which constitute aggravated felonies, one of which is at issue here: (1) "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A).²

Thus, to resolve whether Zavala's enhancement was proper, we must determine whether Congress intended the phrase "sexual abuse of a minor" to include conduct punished under Texas Penal Code § 21.11(a)(2). In making this determination, we employ a categorical approach, considering whether the elements of a § 21.11(a)(2) offense describe "sexual abuse of a minor" rather than whether Zavala's specific conduct constituted "sexual abuse of a minor." See Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000); cf. Taylor v. United States, 495 U.S. 575, 599-602, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (looking to the statutory definition of an offense to determine whether it was a "burglary" within the meaning of the Anti-Drug Abuse Act of 1986).

At the time of Zavala's convictions, Texas Penal Code § 21.11(a)(2) punished someone who "exposes his anus or any part of his genitals, knowing the child [under 17] is present, with intent to arouse or gratify the sexual desire of any person." Tex. Penal Code § 21.11(a)(2).³ We therefore consider whether a person convicted of (1) exposing himself to a minor, (2) knowing that the minor is present, (3) with the intent to arouse or gratify anyone's sexual desire, has committed "sexual abuse of a minor."⁴ See Tex. Penal Code § 21.11(a)(2) (defining the offense); Johnson v. Texas, 967 S.W.2d 848, 850 (Tex. Crim. App. 1998) (stating that the defendant need only know the child is present, not what the child's age is); McKenzie v. Texas, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (stating that the "requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances").

Our starting point is the language Congress employed in § 1101(a)(43)(A). See Lara v. Cinemark USA, Inc., 207 F.3d 783, 787 (5th Cir. 2000) ("In interpreting a statute or regulation, we first look to the statute or regulation's plain language."); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (applying a "common meaning" reading of the phrase "sexual abuse of a minor" in § 1101(a)(43)(A)). We "properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry 'their ordinary, contemporary, common meaning.'" Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993) (internal quotations omitted), quoted in Matter of England, 153 F.3d 232, 235 (5th Cir. 1998). If these words are unambiguous, we end our inquiry with them. See Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 881 (5th Cir. 1999).

The best "ordinary, contemporary, common" reading of the phrase "sexual abuse of a minor" is that it encompasses a violation of Texas Penal Code § 21.11(a)(2). The victim of a § 21.11(a)(2) offense, "a child younger than 17 years," is clearly a "minor." Less clear is whether intentionally and knowingly exposing one's genitals to a minor for sexual arousal or gratification constitutes "sexual abuse." Considering each word in isolation, a § 21.11(a)(2) violation is clearly "sexual abuse." The American Heritage Dictionary defines sexual as "[o]f, pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions," and it defines abuse as, inter alia, "[t]o use wrongly or improperly" or "[t]o hurt or injure by maltreatment." The American Heritage Dictionary 70, 1124 (2d College ed. 1982). A § 21.11(a)(2) violation is "sexual" because it must have sexual arousal or gratification as its purpose. It is abusive because it requires exposure with knowledge of the child's presence, thereby wrongly and improperly using the minor and thereby harming the minor. Cf. Uribe v. Texas, 7 S.W.3d 294, 297 (Tex. App. 1999, pet. ref'd 2000) ("The obvious intent of indecency laws is to protect children."); California v. Stoddard, 227 Cal. App. 2d 40, 41-42 (1964) (upholding a commitment order against a person who was predisposed to commit indecent exposure to girls with "no likelihood of physical contact with them," because the resulting "threat of psychological trauma is quite as much a 'menace to the health or safety of others' as is probable physical injury").

Zavala argues that the phrase "sexual abuse" means something more limited than its constituent parts suggests; i.e., that "sexual abuse" requires more than just some kind of "abuse" which is "sexual" in nature.⁵ We conclude that any narrower definition of the phrase lacks support in reason or in the structure of § 1101(a)(43).

Zavala attempts to limit the phrase "sexual abuse of a minor" to abuse involving physical contact. Admittedly, in most cases, abuse involving physical contact will be more severe than abuse which involves no physical contact. However, reading "sexual abuse" as limited to abuse involving physical contact would exclude some clear acts of sexual abuse while including other arguably less abusive acts. A distinction that treats a stranger's brief groping of a child in a public shower as qualitatively more serious than the conduct of an adult who verbally forces a child to watch him repeatedly engage in sex acts is unjustifiable. Both acts are clearly forms of "sexual abuse" as that phrase is commonly understood. See Baron-Medina, 187 F.3d at 1147 ("The use of young children for the gratification of sexual desires constitutes an abuse."); cf. Arthur J. Lurigio, et al., Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Fed. Probation 69, 69 (1995) ("Child sexual abuse is sexual behavior between children and adults with or without coercion or force.").

Additionally, in many acts of sexual abuse involving physical contact, the psychological harm the child suffers equals or outweighs any physical injury. Cf. Lurigio, 59 Fed. Probation at 70-71 (discussing studies detailing the psychological effects of child sexual abuse). The act is "abusive" because of the psychological harm inflicted irrespective of the presence of physical injury. Since psychological harm can occur without physical contact, a distinction based only on physical contact would miss the essential nature of "sexual abuse."⁶

More importantly, the structure of § 1101(a)(43) counsels against applying a narrow reading of the phrase. Congress used words--"sexual abuse of a minor"--which lack legal specificity, arguing against a technical legal meaning of the phrase. Congress grouped these words with the words "murder" and "rape,"⁷ both generic terms which are traditionally defined under varied state rather than specific federal law. See Baron-Medina, 187 F.3d at 1146 (rejecting an attempt to incorporate a limited definition of "sexual abuse of a minor" into § 1101(a)(43)(A) from another part of the United States Code, in part...