U.S. v. Padillo-Reyes

• Citation: 247 F.3d 1158
• Decision Date: 11 April 2001
• Docket Number: D,No. 00-10504,PADILLA-REYE,00-10504
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Brijidoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1158

247 F.3d 1158 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Brijido PADILLA-REYES, Defendant-Appellant.

No. 00-10504.

United States Court of Appeals, Eleventh Circuit.

April 11, 2001.

April 23, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 99-00246-CR-ASG), Alan Stephen Gold, Jr., Judge.

Before WILSON, KRAVITCH and COX, Circuit Judges.

COX, Circuit Judge:

Brijido Padilla-Reyes (Padilla) pleaded guilty to a one-count indictment charging him with reentering the United States after deportation without the consent of the Attorney General of the United States, in violation of 8 U.S.C. 1326. He appeals his sentence.

I. FACTS AND PROCEDURAL HISTORY

Prompted by reports from the Florida Department of Corrections that Padilla was a foreign-born inmate, the Immigration and Naturalization Service (INS) conducted an investigation which revealed that Padilla was in fact a native and citizen of Honduras who had previously been deported from the United States. Following an INS interview in which Padilla admitted the earlier deportation, Padilla was indicted for violation of 8 U.S.C. 1326, which imposes criminal penalties on any alien who has been deported and who thereafter "enters, attempts to enter, or is at any time found in, the United States" without receiving permission of the Attorney General. 8 U.S.C. 1326(a)(2). Padilla pleaded guilty to the charge.

Preparation of Padilla's pre-sentence investigation report revealed additional facts. Prior to his earlier deportation, Padilla was charged by information with violation of Florida Statute 800.04, "Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery." See Fla. Stat. Ann. 800.04 (1987). Padilla pleaded nolo contendere to the charge, a second degree felony under Florida law, and he was sentenced to one year probation with the requirement that he serve sixty days in jail. Concluding that Padilla's conviction¹ for lewd assault was an "aggravated felony" because it constituted "sexual abuse of a minor" under 8 U.S.C. 1101(a)(43)(A), the district court applied a sixteen-level enhancement to Padilla's base offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A). Padilla objected to the enhancement, arguing that his lewd assault conviction did not fit within the "sexual abuse of a minor" category. The district court overruled Padilla's objections, applied a three-level reduction for acceptance of responsibility, and sentenced Padilla to ninety months imprisonment.

II. ISSUES ON APPEAL

Padilla presents two issues on appeal. Padilla challenges the district court's determination that he is subject to a sixteen-level enhancement to his base offense level based on a previous conviction for an aggravated felony. See United States Sentencing Commission, Guidelines Manual, 2L1.2(b)(1)(A) (Nov. 1998). In order to resolve this issue, we must determine whether Florida Statute 800.04 constitutes the aggravated felony "sexual abuse of a minor" under 8 U.S.C. 1101(a)(43)(A), as referenced by U.S.S.G. 2L1.2. Padilla also argues that because his ninety-month sentence exceeds 8 U.S.C. 1326(a)'s statutory maximum, the sentence violates the rule established by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

III. STANDARD OF REVIEW

We review de novo the district court's interpretation of criminal statutes and sentencing guidelines. United States v. Lazo-Ortiz, 136 F.3d 1282, 1284 (11th Cir.1998).

IV. CONTENTIONS OF THE PARTIES

A. The Aggravated Felony Issue

Padilla contends that in order to determine whether violation of Florida Statute 800.04 constitutes an aggravated felony for purposes of the sentencing enhancement of U.S.S.G. 2L1.2(b)(1)(A), we must consider only the statutory definition of the prior conviction, and determine if the full range of conduct encompassed by the Florida lewd assault statute fits within the aggravated felony category "sexual abuse of a minor." Padilla maintains that "sexual abuse of a minor" is an ambiguous term, primarily because the language does not indicate whether physical contact is a necessary element of the offense. Because of this, Padilla argues we must look beyond the plain language to alleviate the ambiguity.

Padilla locates the meaning of "sexual abuse of a minor" in federal law, noting that before Congress amended 1101(a)(43) to include this offense, it had created a comprehensive set of sexual abuse statutes elsewhere in the Code. See 18 U.S.C. 2241 et seq. Padilla deduces that Congress had the older sexual abuse statutes in mind when it amended the aggravated felony category, and intended the meaning of "sexual abuse of a minor" to adopt the definitions in these statutes. Padilla also notes that there is no plain language in 1101(a)(43)(A) indicating that this body of law should not apply. Finally, because the federal sexual abuse statutes all require physical contact with the victim, whereas the Florida lewd assault statute does not, Padilla concludes that 800.04 does not categorically constitute "sexual abuse of a minor" under 8 U.S.C. 1101(a)(43).²

The Government responds that there is no federal definition of "sexual abuse of a minor" in the context of aggravated felonies in the immigration laws. In support of this argument, the Government notes that over half of the listed aggravated felonies in 1101(a)(43) contain cross-references to other sections of the United States Code, whereas the "sexual abuse of a minor" subsection does not. See 8 U.S.C. 1101(a)(43)(A). From this the Government concludes that where Congress intended an aggravated felony subsection to depend on federal statutory law, it explicitly included the statutory cross-reference in the subsection. In the Government's view, absence of a cross-reference indicates an intention to rely on the plain meaning of the terms. The Government concludes that 800.04 clearly meets the plain meaning of "sexual abuse of a minor."

B. The Apprendi Issue

Padilla contends that the statutory scheme of 8 U.S.C. 1326 creates two separate offenses under two sections. In Padilla's view, 1326(a) makes it illegal for a previously deported alien to reenter the United States, with a statutory maximum of two years, whereas 1326(b)(2) makes it illegal for a previously deported alien with a prior aggravated felony conviction to reenter the United States, with a statutory maximum of twenty years. Padilla argues that the indictment simply charged him with illegally reentering the United States after having been deported, but did not charge that the deportation was subsequent to a conviction for an aggravated felony.³ Padilla concludes that the indictment necessarily charged the 1326(a) offense, and not the 1326(b)(2) offense. Because Padilla's ninety month sentence exceeds the two year statutory maximum of 1326(a), he contends that his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. Padilla argues that Apprendi requires vacatur of his sentence and a remand for re-sentencing within the two-year statutory maximum contained in 1326(a).

The Government's response is simply that Padilla has left out the exception to the Apprendi rule, which, when the first clause is properly appended, reads "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. (emphasis added). The Government contends that the Apprendi exception applies, and not the rule, because the alleged omission is in fact the fact of a prior conviction. Most significantly, the Government notes that the Supreme Court has previously rejected the argument that 1326 contains two separate offenses with separate statutory maximums rather than a single offense with a sentencing factor. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998).

Anticipating this argument, Padilla notes that a sentence in Apprendi states that "it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested." Apprendi, 120 S.Ct. at 2362. While acknowledging that Apprendi explicitly held that its decision does not extend to cases where the fact is a prior conviction, see id., Padilla invites us to anticipate the death-knell of Almendarez-Torres, and extend the logic of Apprendi to cases where the omitted fact is a prior conviction.

V. DISCUSSION

A. The Aggravated Felony Issue

The Sentencing Guidelines give a base offense level of eight for violation of 8 U.S.C. 1326(a), unlawfully entering or remaining in the United States. U.S.S.G. 2L1.2(a). If the defendant previously was deported after a criminal conviction, whether or not the deportation was as a result of that criminal conviction, 2L1.2 requires application of a sentencing enhancement. The enhancement is four levels if the conviction was either for a felony other than an aggravated felony or for three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses. U.S.S.G. 2L1.2(a)(b)(1)(B). The enhancement is sixteen levels if the conviction was for an "aggravated felony." Id. 2L1.2(a)(b)(1)(A). "Felony offense" is defined in 2L1.2 as any federal, state, or local offense punishable by imprisonment for a term exceeding one year; "aggravated felony," however, is defined by statutory reference to a subsection of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43). U.S.S.G. 2L1.2 comment.(n. 1).

The "aggravated felony" category was created in 1988, and initially included only murder, drug trafficking...