302 F.3d 314 (5th Cir. 2002), 02-10010, U.S. v. Rayo-Valdez

Docket Nº:02-10010.
Citation:302 F.3d 314
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bulmaro RAYO-VALDEZ, aka Bulmaro Valdez Rayo, Defendant-Appellant.
Case Date:August 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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302 F.3d 314 (5th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,


Bulmaro RAYO-VALDEZ, aka Bulmaro Valdez Rayo, Defendant-Appellant.

No. 02-10010.

United States Court of Appeals, Fifth Circuit

August 12, 2002

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Susan B. Cowger, Dallas, TX, for Plaintiff-Appellee.

Karl Anthony Rupp, Asst. Fed. Pub. Def., Ira Raymond Kirkendoll, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DUHE and DENNIS, Circuit Judges.

DUHE, Circuit Judge:

This is an appeal from a final judgment of conviction for illegal re-entry into the United States after deportation. Because we hold that sexual abuse of a minor is a crime of violence under U.S.S.G. § 2L1.2, and a prior aggravated felony is not an element of the crime of illegal re-entry under 8 U.S.C. § 1326, we AFFIRM the judgment of the district court.


Appellant Bulmaro Rayo-Valdez ("Rayo-Valdez") was removed from the United States in 1999. He unlawfully reentered this country, and was found in April 2001. Rayo-Valdez was indicted on a charge of illegally re-entering the United States after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pled guilty.

The presentence report ("PSR") detailed Rayo-Valdez's prior crimes. In April 1991, he pled guilty to several counts of aggravated sexual assault of a child under 14 years old. The crimes occurred on three different occasions in 1989 and 1990. Rayo-Valdez twice digitally penetrated the female sexual organ of a child, and once penetrated the anus of a child. Although the PSR does not specify the statute on which Rayo-Valdez's conviction for these crimes rested, it appears to have been Section 22.021 of the Texas Penal Code. That law authorizes a conviction for "Aggravated Sexual Assault" against one who "(B) intentionally or knowingly . . . (i) causes the penetration of the anus or female sexual organ of a child by any means . . . and . . . (2) . . . (B) the victim is younger than 14 years of age . . . ."1

Before sentencing, Rayo-Valdez objected to the categorization of his prior conviction as a "crime of violence", which resulted in a recommended sentence enhancement. At the sentencing hearing, the district court heard argument and overruled the objections. Rayo-Valdez was sentenced to 84 months in prison, a three-year term of supervised release, and a $100 special assessment. He timely appealed.


Sentencing Guidelines

Rayo-Valdez claims that the district court erred in enhancing his sentence for prior conviction for a "crime of violence", arguing that his conviction for sexual assault of a young child is not a "crime of violence" under the recently amended U.S.S.G. § 2L1.2. This is an issue of first impression. We review the application of the Sentencing Guidelines de novo. United States v. Goynes, 175 F.3d 350, 353 (5th Cir. 1999).

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The district court enhanced Rayo-Valdez's offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The applicable version of that guideline provides:

If the defendant previously was deported, or unlawfully remained in the United States after,—

(A) *** (ii) a crime of violence; *** increase [the offense level] by 16 levels[.]

The commentary provides a two-pronged definition of "crime of violence":

(I) means an 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; and

(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

Id., comment, application note 1(B)(ii).

Rayo-Valdez argues that because the "use, attempted use, or threatened use of physical force against the person of another" is not a necessary element of his sexual abuse of a minor offense under Texas Penal Code § 22.021, his sentence cannot be enhanced under U.S.S.G. § 2L1.2.

We disagree. The language of § 2L1.2 says that "crime of violence" means that which is in subparagraph I, and includes that which is in subparagraph II. Sexual abuse of a minor—forcible or not—constitutes a crime of violence.2 So do all the other offenses listed in subparagraph II, regardless of their elements under various state laws.

Because such interpretation of U.S.S.G. § 2L1.2 is an issue of first impression, to reach this conclusion we consider it by way of analogy to similar language in other contexts.

(1) U.S.S.G. § 4B1.2

In United States v. DeLuca, 17 F.3d 6 (1st Cir. 1994), the First Circuit construed U.S.S.G. § 4B1.2, which defines "crime of violence" for purposes of applying a career-offender enhancement.3 The DeLuca

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court held the express listing of extortion was a "formidable obstacle" to an argument that it should not be considered a "crime of violence", even if the particular extortion statute does not require use of force. Id. at 8. The First Circuit held that "the wording of the guideline tells us unequivocally that the Sentencing Commission believed that extortion, by its nature, should be classified as a crime of violence. A defendant who seeks to exclude a specifically enumerated offense from the sweep of section 4B1.2 must shoulder a heavy burden of persuasion." Id.; see also United States v. Shane Clements, 144 F.3d 981, 983 (6th Cir. 1998) (comparable analysis of extortion offense as "crime of violence" under § 4B1.2).

This court has held similarly. In United States v. Hornsby, 88 F.3d 336 (5th Cir. 1996), we held burglary of a habitation is a "crime of violence" under § 4B1.2 because "burglary of a dwelling" is listed therein. Id. at 339. The panel did not consider whether the particular crime involved any use of threat or force. Id. In an earlier case, this court was explicit that no such inquiry is necessary when the prior offense is specifically listed in the guideline. United States v. Guerra, 962 F.2d 484, 485-36 n. 4 (5th Cir. 1992).

These are not isolated holdings. See also United States v. Fry, 51 F.3d 543, 546 (5th Cir. 1995) (holding manslaughter, because it was specifically listed in the commentary to § 4B1.2 as a "crime of violence," is such); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989) (same, regarding burglary of dwelling); United States v. Coleman, 38 F.3d 856, 859 (7th Cir. 1994) (same, noting "clear language" of guideline and "conclusive[ness]" of meaning); United States v. McVicar, 907 F.2d 1, 1 (1st Cir. 1990) (Breyer, J.) (the "short, conclusive answer" negating claim that robbery was not a crime of violence is that the guideline lists it as one); United States v. Claiborne, 132 F.3d 253, 254-55 (5th Cir. 1998) (Louisiana crime of attempted unauthorized entry of an inhabited dwelling would be "crime of violence" under § 4B1.2 if it were equivalent to "burglary of a dwelling", because that is an "enumerated crime[ ] listed in" that guideline).

By comparison, the application note to § 2L1.2 means that the offenses listed in subparagraph II need not show actual, attempted, or threatened use of force, for the precise reason that they are explicitly listed. The Commission has predetermined that, regardless of their circumstances or the way they are defined by state laws, the listed offenses are inherently violent and forceful, or inherently risk violence and use of force. Thus, their enumeration in the commentary ensures that they are treated as "crimes of violence". As the Seventh Circuit stated in United States v. Rutherford, 54 F.3d 370, 378 (7th Cir. 1995), "the Commission has dispensed with the need for judicial classification" of offenses such as burglary, arson, and extortion, because it has already decided that they entail a high enough degree of risk to classify them in advance as violent.4 In other words, it has "determined that certain crimes—regardless of the precise conduct—are inherently violent. Thus, for purposes of determining career offender status under the Guidelines, there is no such thing as a nonviolent kidnapping or a non-violent burglary of a dwelling." United States v. Telesco, 962 F.2d 165, 166 (2d Cir. 1992) (construing § 4B1.2). Likewise, for purposes of determining "crime of violence" under § 2L1.2, there is no such thing as nonviolent sexual abuse of a minor.

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It is of no consequence that the structure and syntax of the definitions of "crime of violence" in § 2L1.2 and § 4B1.2 differ slightly. While the § 2L1.2 definition has eliminated the possibility that a non-enumerated crime risking use of physical force could qualify as a "crime of violence", that is not relevant here, and in all other substantive...

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