U.S. v. Diaz-Ibarra

• Decision Date: 11 April 2008
• Docket Number: No. 07-4420.,07-4420.
• Citation: 522 F.3d 343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul DIAZ-IBARRA, a/k/a Raul Diaz Ibarra, a/k/a Raul Diaz, a/k/a Raul Ibarra-Diaz, a/k/a Raul Gonzales, a/k/a Ivarra Raul Diaz, a/k/a Rafael Diaz-Iberra, a/k/a Raul Moralez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

522 F.3d 343

UNITED STATES of America, Plaintiff-Appellee, v. Raul DIAZ-IBARRA, a/k/a Raul Diaz Ibarra, a/k/a Raul Diaz, a/k/a Raul Ibarra-Diaz, a/k/a Raul Gonzales, a/k/a Ivarra Raul Diaz, a/k/a Rafael Diaz-Iberra, a/k/a Raul Moralez, Defendant-Appellant.

No. 07-4420.

United States Court of Appeals, Fourth Circuit.

Argued: January 31, 2008.

Decided: April 11, 2008.

ARGUED: Nia Ayanna Vidal, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Kyle Hansen, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alan H. Yamamoto, Assistant Federal Public Defender, Sapna Mirchandani, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge MOTZ and Judge KING joined.

OPINION

WILLIAMS, Chief Judge:

In this appeal we must determine whether a conviction under former Georgia Code Ann. § 16-6-4 (1992) for felony attempted child molestation qualifies as a "crime of violence" within the meaning of U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2006). We hold that it does. A violation of former Georgia Code Ann. § 16-6-4 categorically constituted "sexual abuse of a minor," which the Sentencing Guidelines define as a "crime of violence." We therefore affirm Diaz-Ibarra's sentence.

I.

Raul Diaz-Ibarra is a native and citizen of Mexico and an illegal alien in''the United States. In August 1992, a Clayton County, Georgia grand jury indicted him on two counts of felony attempted child molestation, in violation of Ga.Code Ann. § 16-6-4. At the time, § 16-6-4 provided that "[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person." Ga.Code Ann. § 16-6-4 (1992).¹ The indictment charged that, on two occasions and with two different children, Diaz-Ibarra "attempted an immoral and indecent act" with a "child under 14 years of age, with intent to arouse and satisfy the sexual desires of said accused by offering [the child] a cigarette if she would remove her clothes and show the accused her`p-ssy.'" (J.A. at 30.) Diaz-Ibarra pleaded guilty to both counts, and the state court sentenced him to one year imprisonment for each conviction, with the sentences to be served concurrently.

On January 24, 1995, an Immigration Judge ordered that Diaz-Ibarra be deported to Mexico. Diaz-Ibarra was deported the next day, but between 1995 and 2006, he illegally reentered the United States at least twice. During his illegal tenures in the United States, Diaz-Ibarra was convicted of a number of state crimes, including: (1) shop-lifting (in both Georgia and South Carolina); (2) simple battery (Georgia); (3) possession of cocaine (Virginia); (4) theft (Maryland); and (5) taking indecent liberties with a child (Virginia).²

On November 1, 2006, the Virginia Department of Corrections contacted federal immigration agents and informed them that Diaz-Ibarra was in Virginia's custody but would soon be released. On December 7, 2006, a federal grand jury sitting in the Eastern District of Virginia indicted Diaz-Ibarra, charging him with being found in the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C.A. §§ 1326(a) and (b)(2) (West 2005). Diaz-Ibarra pleaded guilty to the indictment with-out the benefit of a written plea agreement.

Thereafter, a probation officer prepared a presentence report ("PSR") for Diaz-Ibarra. The PSR recommended an advisory Guidelines range of 70 to 87 months' imprisonment. As part of the Guide-lines range calculation, the probation officer applied a sixteen-level enhancement to Diaz-Ibarra's base offense level based on his conclusion that Diaz-Ibarra's 1992 Georgia convictions for felony attempted child molestation constituted "crimes of violence" under Guideline § 2L1.2(b)(1)(A)(ii).

Both before and at his sentencing hearing, Diaz-Ibarra objected to the PSR's characterization of his 1992 Georgia convictions as "crimes of violence." Although he conceded that the convictions supported an eight-level enhancement under § 2L1.2(b)(1)(C) because they qualified as "aggravated felonies,"³ Diaz-Ibarra contended that the sixteen-level enhancement was improper because his offenses "involved no physical contact of any kind" and were not "violent in nature." (J.A. at 18.) The district court overruled Diaz-Ibarra's objection, concluding that application of the § 2L1.2(b)(1)(A)(ii) enhancement was warranted because Diaz-Ibarra's 1992 convictions for felony attempted child molestation qualified as "crimes of violence." Accordingly, the district court sentenced Diaz-Ibarra to 78 months' imprisonment, within the recommended advisory Guidelines range.

Diaz-Ibarra timely appealed. We have jurisdiction pursuant to 28 U.S.CA. § 1291 (West 2000) and 18 U.S.CA. § 3742(a) (West 2000 & Supp.2006).

II.

A.

If the end point of a sentencing proceeding is the district court's selection of a "reasonable" sentence, the starting point, as the Supreme Court recently reiterated, is the correct calculation of the applicable Guidelines range. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (stating that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range"). An error in the calculation of the applicable Guidelines range, whether an error of fact or of law, infects all that follows at the sentencing proceeding, including the ultimate sentence chosen by the district court, and makes a sentence procedurally unreasonable even under our "deferential abuseof-discretion standard." Gall, 128 S.Ct. at 591; Koon v. United States, 518 U.S. 81, 100,116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("A district court by definition abuses its discretion when it makes an error of law.").

This appeal focuses on the starting point of Diaz-Ibarra's sentencing: he claims that the district court incorrectly calculated his advisory Guidelines range. Specifically, Diaz-Ibarra contends (as he did below) that the district court erred in applying the sixteen-level enhancement under Guideline § 2L1.2(b)(1)(A)(ii) because his 1992 Georgia convictions for felony attempted child molestation do not qualify as "crimes of violence." Of course, whether the district court erred in its characterization of Diaz-Ibarra's crimes as "crimes of violence" is a question of law that we review de novo. United States v. Smith, 359 F.3d 662, 664 (4th Cir.2004).

B.

For defendants like Diaz-Ibarra who are convicted of unlawfully entering or remaining in the United States, the Sentencing Guidelines mandate a sixteenlevel offense level enhancement if the defendant previously was deported, or unlawfully remained in the United States, after a conviction for a felony that is a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Application Notes to § 2L1.2 define "crime of violence" as follows:

any of the following: 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).

On appeal, as they did below, the parties focus their arguments on whether Diaz-Ibarra's 1992 Georgia convictions for felony attempted child molestation amounted to "sexual abuse of a minor." We think this focus on "sexual abuse of a minor" is appropriate, for violations of Ga.Code Ann. § 16-6-4 do not fit within any other specific criminal conduct listed in the Guidelines definition of "crime of violence." Our discussion will thus center on whether Diaz-Ibarra's crimes constituted "sexual abuse of a minor."

To make this determination, we apply the categorical approach set forth in the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See also Shepard v. United States, 544 U.S. 13, 17-18, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (describing Taylor's categorical approach). Under Taylor, 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 innbcent conduct, qualifies as a "crime of violence." Taylor, 495 U.S. at 599-601, 110 S.Ct. 2143. Taylor does not require that we strain credulity or apply our "legal imagination" to the statute's language to arrive at some violation of the statute that would not qualify as a "crime of violence." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). Rather, there must be "a realistic probability, not a theoretical possibility," that the state would apply its statute to conduct that falls outside the definition of "crime of violence." Id.; James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007).

In a "narrow range of cases," however, resort to the statute of offense and fact of conviction will not confirm the predicate nature of the state crime. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. In those cases where the state statute is categorically overbroad — that is, where it is evident from the statutory definition of the state crime that some violations of the statute are "crimes of violence" and others are not — we apply what sometimes is referred to as the "modified" categorical approach, which was also...