U.S.A. v. Carillo

• Decision Date: 17 May 2001
• Docket Number: No. 00-3919,00-3919
• Citation: 250 F.3d 1101
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Reymundo Martinez-Carillo, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1101

250 F.3d 1101 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Reymundo Martinez-Carillo, Defendant-Appellant.

No. 00-3919

In the United States Court of Appeals For the Seventh Circuit

Argued April 5, 2001

Decided May 17, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 317--Ruben Castillo, Judge.

Before Bauer, Ripple, and Evans, Circuit Judges.

Bauer, Circuit Judge.

Reymundo Martinez- Carillo, a/k/a Raymundo Martinez, appeals from the sentence imposed by the district court based upon his illegal entry into the United States after deportation. Martinez-Carillo takes issue with three of the district court's rulings, which ultimately affected the length of his sentence. We affirm all of the district court's conclusions.

BACKGROUND

Martinez-Carillo, a citizen of Mexico, had been a lawful permanent resident of the United States. In December of 1992, he was convicted of and sentenced for "Criminal sexual assault" under 720 ILCS 5/12-13(a)(3) (formerly Ill. Rev. Stat. 1989, ch. 38, para. 12-13-A(3)) for inserting his finger into his daughter's vagina, who was thirteen years old at the time. Martinez-Carillo was deported to Mexico on December 29, 1999 for having been convicted of an "aggravated felony."

Soon thereafter, on April, 19, 2000, he was found in Winnetka, Illinois. In July, he pled guilty to violating 8 U.S.C. sec. 1326 for unlawfully reentering the United States without the Attorney General's permission, but reserved the right to contest whether his prior Illinois conviction for "Criminal sexual assault" was indeed an "aggravated felony." At his sentencing hearing in November, the district court (1) enhanced his base offense level by sixteen levels because his prior conviction was an "aggravated felony," (2) refused to depart downward under U.S.S.G. sec. 4B1.2 because his prior conviction was a "crime of violence," and (3) refused to depart downward for conditions of confinement based on his status as a deportable alien. The district court set his sentence at forty one months imprisonment. Martinez-Carillo's appeal contests each of these decisions, which are questions of law we review de novo. See United States v. Jaderany, 221 F.3d 989, 995 (7th Cir. 2000); United States v. McMutuary, 217 F.3d 477, 483 (7th Cir. 2000).

DISCUSSION

I. Sexual Abuse of a Minor

Martinez-Carillo challenges the conclusion that his Illinois conviction for "Criminal sexual assault" has beenlabeled as one for "sexual abuse of a minor," and is thus an "aggravated felony." We agree with the district court and hold that a conviction under 720 ILCS 5/12-13(a)(3) (formerly Ill. Rev. Stat. 1989, ch. 38, para. 12-13-A(3)) constitutes an "aggravated felony" under 8 U.S.C. sec. 1101(a)(43).

U.S.S.G. sec. 2L1.2(a) assigns a base offense level of eight to a defendant convicted of unlawfully reentering the United States. However, if the defendant's prior conviction constitutes an "aggravated felony," his or her base offense level will be enhanced by sixteen levels. See U.S.S.G. sec. 2L1.2(b) (1)(A). Application Note 1 of U.S.S.G. sec. 2L1.2 references 8 U.S.C. sec. 1101(a)(43) for the definition of "aggravated felony," and 8 U.S.C. sec. 1101(a)(43)(A) lists "sexual abuse of a minor" as an "aggravated felony." But, the statutory guidance ends here, for "[t]he phrase 'sexual abuse of a minor' is not defined in [sec. 1101(a)(43)(A)] either expressly or by reference to any other statutory provision." Lara-Ruiz v. INS, 241 F.3d 934, 940 (7th Cir. 2001).

We have expressed the need for uniformity in determining whether a conviction falls within the federal understanding of the phrase "sexual abuse of a minor." Uniformity is particularly needed since state and federal classifications and definitions of crimes vary so wildy. For example, Martinez- Carillo argues that his conviction was not for "sexual abuse of a minor" because Illinois labels his conviction as one for "sexual assault" rather than "sexual abuse of a minor." We have held that this of no matter. See Hernandez-Mancilla v. INS, 246 F.3d 1002, 1004-05 (7th Cir.2001)("Since state definitions vary wildly, . . . how states classify crimes is not determinative . . . ."); see also 8 U.S.C. sec. 1101(a)(43) ("The term ['aggravated felony'] applies to an offense described in this paragraph whether in violation of Federal or State law."). While we did not fashion a formal definition of "sexual abuse of a minor" in Lara-Ruiz as we did in Solorzano- Patlan v. INS, 207 F.3d 869, 874 (7th Cir. 2000) (creating a generic federal definition for "burglary" under 8 U.S.C. sec. 1101(a)(43)(G)), and do in Hernandez-Mancilla, 246 F.3d at 1008-09 6 (creating a generic federal definition for "theft offense (including receipt of stolen property)" under 8 U.S.C. sec. 1101(a)(43)(G)), we have deciphered that "Congress intended to give a broad meaning to the term 'sexual abuse of a minor.'" Lara-Ruiz, 241 F.3d at 942; accord United States v. Corona-Sanchez, 234 F.3d 449, 453 (9th Cir. 2000) (recognizing the "differ[ing] approaches [employed in the circuit] to testing a prior conviction for aggravated felony status").

Further, we have explained that

[i]n determining whether Congress intended the phrase 'sexual abuse of a minor' to include conduct punished under a particular state statute, we must generally employ a categorical approach; that is, we consider only whether the elements of the state offense of which the alien was convicted--together with the language of the indictment-- constitute sexual abuse of a minor, rather than whether the alien's specific conduct could be characterized as sexual abuse of a minor.

Id. at 941. In Lara-Ruiz, we applied an exception to the categorical approach and held that the defendant's convictions under 720 ILCS 5/12-13(a)(1) and (a)(2) (formerly Ill. Rev. Stat. 1991, ch. 38, para.para. 12-13(a)(1) & (a)(2)) constituted "sexual abuse of a minor," even though neither the statute nor the charging papers revealed the age of the victim, since the record clearly revealed that the victim was four-years old. See id. at 940-42.

This case is less complicated than Lara- Ruiz since both the statute of conviction and the charging papers reveal that the victim was a minor and that Martinez- Carillo sexually abused that victim. The statute of conviction, entitled "Criminal sexual assault," relevantly states: "(a) The accused commits criminal sexual assault if he or she: . . . (3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member." 720 ILCS 5/12-13(a)(3) (formerly 1989 Ill. Rev. Stat. ch. 38, para. 12-13-A(3)). The charge of conviction, here the Indictment, reads: "Raymundo Martinez committed the offense of Criminal Sexual Assault in that He, committed an act of sexual penetration upon [the victim], to wit: an intrusion in that Raymundo Martinez inserted his finger into [the victim's] vagina, and [the victim] was under 18 years of age when the act was committed and Raymundo Martinez was a family member, to wit: father . . . ."

The conduct that led to conviction in this case, according to the language of the statute as well as the Indictment, was sexual penetration of a victim who was under 18 years of age. Black's Law Dictionary provides a generic understanding of the word "minor." It defines "minor" as "[a]n infant or person who is under the age of legal competence. . . . In most states, a person is no longer a minor after reaching the age of 18 . . . ." Black's Law Dictionary 997 (6th ed. 1990). Martinez-Carillo's state conviction squarely fits within the federal understanding of the phrase "sexual abuse of a minor," which adopts the ordinary, contemporary, and common meaning of the words. See, e.g., Lara- Ruiz, 241 F.3d at 940 (accepting the BIA's creation of a "generic definition of sexual abuse of a minor which was consistent with the ordinary, common- sense meaning of th[e] phrase"); United States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th Cir. 2000) (adopting an "'ordinary, contemporary, common'" meaning of the words by examining their dictionary definitions); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (adopting the "common, everyday meanings of the words 'sexual' and 'minor' [and] 'abuse'"). Therefore, Martinez-Carillo's conviction was of a crime that constitutes an "aggravated felony."

II. Crime of Violence

Martinez-Carillo requested a downward departure under U.S.S.G. sec. 2L1.2, cmt. n.5, which permits a departure if the "aggravated felony" enhancement overstates the seriousness of the defendant's prior offense. Thus, if the "aggravated felony" enhancement is applied,

and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.

U.S.S.G. sec. 2L1.2, cmt. n.5. The district court ruled that Martinez- Carillo was ineligible for such a departure because his prior conviction constituted a "crime of violence." Application Note 1 of U.S.S.G. sec. 2L1.2 refers to U.S.S.G. sec. 4B1.2(a) for a definition of "crime of violence," which defines it as, in part, "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . presents a serious potential risk of physical injury to another."

Relying on our opinions in Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) and United States v. Shannon, 110 F.3d 382 (7th Cir. 1997) (en banc), Martinez-Carillo argues that his conduct did not create a serious potential risk of physical injury since "inserting a finger into a vagina, could not possibly lead to the pregnancy of the child." We understand Martinez-Carillo's...