United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1517

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Hector Vasquez-Gutierrez, * [UNPUBLISHED]

*

Appellant. *

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Submitted: February 17, 2012

 Filed: May 3, 2012

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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Hector Vasquez-Gutierrez pled guilty without a plea agreement to illegal

reentry following removal in violation of 8 U.S.C. § 1326(a). The district court

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determined that Vasquez-Gutierrez was subject to a maximum sentence of 20 years’

imprisonment because his illegal reentry was subsequent to a conviction for an

aggravated felony, see 8 U.S.C. § 1326(b)(2), calculated a guidelines range of 41 to

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa.
51 months, and sentenced Vasquez-Gutierrez to 41 months’ imprisonment. VasquezGutierrez appeals his sentence, arguing that the district court erred by subjecting him

to the potential 20-year maximum sentence by classifying his prior conviction as an

aggravated felony. Because any such classification error was harmless, we affirm.

In July 1999, then-18-year-old Vasquez-Gutierrez was charged with sexual

abuse in the third degree for having sexual intercourse with a 13-year-old girl. 

Vasquez-Gutierrez pled guilty to the lesser-included offense of assault with intent to

commit sexual abuse causing no bodily injury in violation of Iowa Code § 709.11

(“Iowa conviction”), and the court imposed a two-year suspended sentence on March

27, 2000. That same day, the Bureau of Immigration and Customs Enforcement

(“ICE”) served Vasquez-Gutierrez with a Notice of Intent to Issue a Final

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Administrative Removal Order. The Notice alleged that Vasquez-Gutierrez was

removable based on his Iowa conviction and his previousillegal entry into the United

States. ICE removed Vasquez-Gutierrez on April 3, 2000. Vasquez-Gutierrez

illegally reentered the United States and was removed again in 2003. 

In July 2010, Vasquez-Gutierrez was arrested again in Iowa for public

intoxication and admitted that he had illegally entered the country a third time in

2009. Based on this most recent entry, Vasquez-Gutierrez was charged with illegal

reentry following removalsubsequent to a prior conviction for an aggravated felony. 

Vasquez-Gutierrez moved to dismiss the indictment, arguing that the 2000 removal

order was invalid because the Iowa conviction did not qualify as an aggravated

felony. See 8 U.S.C. § 1326(d). The district court denied the motion, concluding that

the Iowa conviction qualified as an aggravated felony. Vasquez-Gutierrez

subsequently pled guilty but argued at sentencing that he was not subject to the 20-

year maximum sentence under § 1326(b)(2). The district court rejected VasquezThen known as the Immigration and Naturalization Service. 2

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Gutierrez’s argument and imposed a sentence at the bottomofthe advisory guidelines

range, 41 months.

On appeal, Vasquez-Gutierrez contends that the district court erred in

classifying the Iowa conviction as an aggravated felony for purposes of sentencing,

thus erroneously subjecting himto a potential 20-year maximumsentence. He argues

that the Iowa conviction does not constitute a “crime of violence” under 18 U.S.C.

§ 16, see Johnson v. United States, 559 U.S. ---, 130 S. Ct. 1265 (2010), or “sexual

abuse of a minor,” and thus is not an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(A), (F). However, we need not decide this question as we conclude

that any such error was harmlessin this case. See Fed. R. Crim. P. 52(a) (establishing

that any error that does not affect substantial rights must be disregarded). 

Even if the Iowa conviction does not qualify as an aggravated felony, VasquezGutierrez would still be subject to a 10-year maximum sentence for illegal reentry

following removal subsequent to a felony conviction. See 8 U.S.C. § 1326(b)(1). 

Although the Iowa conviction is classified by the State of Iowa as an aggravated

misdemeanor, it carries a maximum sentence of two years’ imprisonment. United

States v. Quiroga, 554 F.3d 1150, 1158 (8th Cir. 2009) (holding that a conviction

under Iowa Code § 709.11 constitutes an aggravated felony for sentencing guidelines

purposes). The Iowa conviction thus falls within the plain meaning of the word

felony. SeeCarachuri-Rosendo v. Holder, 560 U.S. ---, 130 S. Ct. 2577, 2585 (2010)

(“A ‘felony,’ we have come to understand, is a ‘serious crime usu[ally] punishable by

imprisonment for more than one year or by death.’” (alteration in original) (quoting

Black’s Law Dictionary 694 (9th ed. 2009))); see also 18 U.S.C. § 3559(a)

(establishing presumption that federal crimes carrying a maximum sentence

exceeding one year of imprisonment are felonies). Moreover, Vasquez-Gutierrez

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This definition is consistent with Congress’s usage of the word felony in Title 3

8 of the United States Code, see 8 U.S.C. § 1101(a)(43)(F), (G) (providing that a

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offers no meaningful argument as to why the Iowa conviction would not be

considered a felony conviction within the meaning of 8 U.S.C. § 1326(b)(1) and has

thus waived the argument. See United States v. Stanko, 491 F.3d 408, 415 (8th Cir.

2007) (holding that a claimwas waived because it was not meaningfully argued in the

opening brief). Because Vasquez-Gutierrez’s 41-month sentence is well within the

otherwise applicable statutory maximum for unlawful reentry following removal

subsequent to a felony conviction, the increased potential statutory maximum did not

affect Vasquez-Gutierrez’s substantial rights, and any such error is harmless. See

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United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir. 2000) (holding that

an Apprendi error increasing the maximum sentence from twenty years to life

imprisonment “had no effect” on the 168-month sentence the defendant received

where the defendant was sentenced at the low end of the guidelines range and the

actual sentence was “substantially less” than the correct statutory maximum).

Vasquez-Gutierrez also contends that, if the Iowa conviction is not an

aggravated felony, we should remand to the district court to reconsider for purposes

crime of violence, theft offense, or burglary offense is an aggravated felony if the

term of imprisonment is at least one year), as well as its usage of the word generally

in the criminal context, see 21 U.S.C. § 802(44) (defining “felony drug offense” as

a drug crime “punishable by imprisonment for more than one year”); United States

v. Garrett, 648 F.3d 618, 621-22 (8th Cir. 2011) (explaining that to be a “felon” in

possession a firearm a defendant must have “previously been convicted of a crime

punishable by imprisonment of more than one year”). 

Although Vasquez-Gutierrez objected before the district court to a 16-level

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increase to his offense level for being deported after conviction for a “crime of

violence,” see U.S.S.G. § 2L1.2(b)(1)(A), he does not challenge the district court’s

calculation of the advisory sentencing guidelines range on appeal. Perhaps this is

because a “crime of violence” for the purposes of the guidelines enhancement

includes statutory rape, sexual abuse of a minor, and “any other offense . . . 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. n.1(B)(iii). 

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of sentencing its denial of his motion to dismiss based on a collateral attack on the

2000 removal order. An alien charged with illegal reentry following removal may

collaterally attack the validity of his removal order in a subsequent criminal

prosecution if he demonstrates that the removal proceeding was so defective as to

effectively foreclose his right to obtain judicial review of his removal order and “that

he suffered actual prejudice from those defects.” United States v. Perez-Ponce, 62

F.3d 1120, 1122 (8th Cir. 1995). Vasquez-Gutierrez does not identify any sentencing

prejudice he suffered in this case from the purported misclassification of the Iowa

conviction as an aggravated felony for the purposes of his 2000 removal proceeding. 

As discussed above, even if the Iowa conviction is not an aggravated felony,

Vasquez-Gutierrez’s sentence was well within the 10-year statutory maximum

sentence for illegal reentry following removal subsequent to a felony conviction. 

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For the foregoing reasons, we affirm.

_____________________________

To the extent Vasquez-Gutierrez now seeks to invalidate the 2000 deportation 5

order asthe predicate for his conviction, he waived any right to challenge the removal

order for purposes of his conviction when he entered an unconditional guilty plea. 

See United States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007) (“A valid guilty plea

is an admission of guilt that waives all non-jurisdictional defects and defenses” and

is “presumptively unconditional.”). Vasquez-Gutierrez does not challenge the

validity of his guilty plea or assert that the plea was conditional and has thus waived

the argument. See Stanko, 491 F.3d at 415. 

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