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w . v i l l a no va . e du/thir dc ir c uit_2004/851* The Honorable John R. Gibson, Senior Cir cuit J udge for the United Stat es Court of Appeals for t

he Eighth Cir cuit, sitting by designat ion
. NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 03-2249

___________ UNIT ED STA TES OF AMERI CA, Appellee

v. WA NGU E BILLY , a/k/a Bil ly Wangue Appellant

___________ On A ppeal from the Un ited States District Co urt

of the Virgin Islands Distri ct Court J

udge: The H onorab le Thom as K. M oore (No. 02-cr -00126-01 )

___________ Submitte d Under Third Circ uit L. A.R. 34.1( a)

March 26, 2004 Before: FU EN TE S, S M ITH & GI BS ON , Circuit Judges
. * (Opinion Fi led: Apri l 8, 2004 )

_______2 _______________________ OPINI ON OF THE COURT

________________________ FUEN TES, Circuit

Judge: Appellant Wangue Billy

(“Bill y”) was convi cted in Fl orida st ate cour t in 1999 of perform ing lewd and l ascivi ous acts in the pre sence of a

minor after ple ading nolo contendere to the cha

rges. The state of Florida charged tha

t Billy , then 27, t

ook a 14- yea r old girl to two motels betwee n April and May 1999 and on both occasions had
consensua

l sexual interc ourse wit

h her. Billy

was deported to his na

tive Hai ti followi ng this convi ction, but

was arr ested i n St. Thomas, U.S. Vi

rgin Isl ands in 2002 whil e try ing to reent er the c ontinenta

l United St

ates. Billy

did not conte st the fa

ct that he did not have permi ssion from

the Attor ney General to reent er the c ountry . In sent

encing Billy

for illegal reentry, the District Cour t applied an eig ht level increase set f orth in U.S .S.G. § 2L1.2(b)(1)(C), which allows for such an increase when a defendant has been “previous ly

deported, or unlawfull

y r emai ned in the Uni

ted Stat es, aft er a convi ction for an aggrav ated felony.” Billy appeals from thi s eight l evel increase because , he argue s, the unde rly ing Florida c onviction was not an “a ggravate d felony

” under the

United Sta

tes Sent encing Guidelines or 8 U.S.C. § 1101, a statute classi fying cert ain crimes

as aggravated felonies for the purpos es of im

migra tion and depor

tation ( and which defi

nes an aggr

avated fe lony3

as, among other things, sexual a buse of a minor). Because we disagre e with Billy ’s arguments, we w ill affirm the sentenc e imposed by the District Cou rt. In 1999, when Billy

was convicted in Flor

ida, the releva nt stat ute sta ted: A person who:

. . . (4) Knowingly

comm its any lewd or lascivious

act in t he prese nce of any child under the age of 16 years; without committi ng the crime of sexual battery, commits a felony. Fla. Stat. ch. 80 0.04(4)(1 998). In su pport of his argument that co nviction u nder this statut e does not c onstitut

e an aggra

vated fel ony,Billy

notes tha t the Sent encing Gu id el in e a pp li ed by t he Di st ri ct Co ur t i nc or po ra te s t he de fi ni ti on of “a gg ra va te d f

el on y” from 8 U.S.C. § 1101(a)(43)(A), which includes in its definition “m urder, rape, or sexual abuse of a minor.” Billy points out th at although Congress d id not def ine sexual abu se in this provi sion, it

did define t

he term in 1986 when it create d the offense “sexual abuse of a minor or ward” in 18 U.S.C. § 2243. Billy a rgues that because the definiti on of sexual abuse in § 2243 c ontains a requirement t

hat ther e be physical

sexual c ontact wi

th a minor, and because the Florida provisi on under which he was convicted did not require such proof, hi s convict

ion does not fa

ll withi n the defini

tion of sexua

l abuse s et forth by Congress. Although this is a clever argume nt, we find it unconvincing, and instead are4

persuade d by t

he reas oning of the Court of Appeals for

the Eleve

nth Circui

t in United States v. Padilla-Rey

es , 247 F.3d 1158 (11th Ci r. 2001). Pa

dilla,a native

and citizen of Hondu ras who had previously been de ported and illegally returned to the Un ited States, pleaded gu ilty to illegal reentry. Prior to his deportatio n, Padilla was ch arged with violati on of Florida St

atute § 800. 04, “Lewd, l ascivi ous, or inde cent as sault or act upon or in presenc e of child; sex ual battery,” the same statute at issue here. Lik e Billy, Padilla pleaded nolo con tendere to the cha rge. The di strict court c oncluded tha t the convi ction for lewd as sault c onstitut ed an aggra

vated fel ony a

nd therefor

e applie d an enhancement to Padilla’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (the court was applying an older v ersion of th e Guidelines). 2 47 F.3d at 1159. T he Eleventh Circuit held that the d efinition o f “sexual ab use of a minor” in 8 U.S.C. § 1101(a)(4 3) includes a violati on of Florida St

atute § 800. 04, regar

dless of whether the

re is e vidence i n the record that the defenda nt actually physically touched th e victim. Id. at 1164. Padilla had made the same argument that B illy raises here, that the courts should look to Congress’s definiti on of sexual a

buse in 18 U.S. C. § 2241 et seq., but the Eleventh Circuit rejected that argument, noting that in 8 U.S.C. § 1101(a)(43), where Congress intended an aggravated felony t

o depend on federal statutory law, it explicitl

y incl uded the statutory
cross-refere

nce in the subsect ion. It di d not make

any refere nce to 18 U.S. C. § 2241, and therefore th e Eleventh C ircuit conclud ed that Con gress did no t intend such a crossreference. We fin d this appro ach persuasiv e, and also no te that Cong ress was proba bly5

aware that many of the un derlying deportable conviction s for sexual a buse wou ld be state convictions, and perhaps for that reason purposefully omitted a refer

ence to federal substantive law
. We also agree with the Eleventh Circuit that the lan guage in § 1101(a)(4 3) is “fairly self-evident,” thereb y obviating the need to resort to oth er statutory language. Padilla-Rey

es , 247 F.3 d at 1163 . While we agree w ith Billy that the Florida statu te encompasses acts involving physical contact as well as

acts that do not, we disagree t hat a conviction under the statu te does not th erefore con stitute sexual abu se of a minor. Rather,the words “ sexual a buse” conve

y t hat the pe rpetra tor’s i ntent in c ommi

tting the offense is to achieve “libidinal gra tification,” which does not necessa rily require phys ical contact. Id. For these

reasons , we are

not persua

ded that we

must l ook outside t

he language of § 1101( a)(43) i n this case, and we

conclude t

hat Flori da’s le

wd and lascivious con duct statute do es encompass sexu al abuse. Beca use a viola tion o f Flor

ida St atute § 800. 04 qual ifie s as“sexual a buse o f a minor” under 8 U.S.C. § 1101(a)(43)(A), the District Court did not err i n applying an eight-level enh ancement for a p rior aggrav ated felony conv iction pursu ant to U.S.S .G. § 2L1.2(b )(1)(C). The judgment o f the District Co urt is therefore affirmed.