United States Court of Appeals

Fifth Circuit 

## FILED

March 31, 2005

Charles R. Fulbruge III Clerk REVISED APRIL 20, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40276

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN RAUL IZAGUIRRE-FLORES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court
for the Southern District of Texas
Criminal No. M-03-840-01

--------------------

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

Defendant-Appellant Juan Raul Izaguirre-Flores (“Izaguirre”)

asks us, inter alia , to resolve a question of first impression in

this circuit: whether taking indecent liberties with a child in

violation of North C arolina General Statute § 14-202.1(a)(1)

constitutes “sexual abuse of a minor” for purposes of the “crime of

violence” sentencing enhancement in United States Sentencing

Guidelines § 2L1.2. The district court answered this question in

the affirmative. We agree and affirm.

I. FACTS AND PROCEEDINGS1 This provision renders

[a] person . . . guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he . . . willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire . . . .

N.C. G EN

. S TAT . § 14-202.1(a)(1).

2 In May 2002, a North Carolina grand jury indicted Izaguirre,

a Honduran citizen, for taking indecent liberties with a child in

violation of North Carolina General Statute § 14-202.1(a)(1). 1

Izaguirre pleaded guilty to the indictment and was sentenced to 16

to 20 months imprisonment. In June 2003, Izaguirre was deported to

Honduras.

In August of that year, United States Border Patrol agents

encountered Izaguirre near Falfurrias, Texas. Izaguirre admitted

to the agents that he is a citizen of Honduras and that he had

illegally entered the United States by crossing the Rio Grande

river.

The government indicted Izaguirre u nder 8 U.S.C. § 1326 for

illegal reentry into the United States following deportation. The

indictment did not allege that Iz aguirre’s June 2003 deportation

was subsequent to a felony or aggravated felony conviction although

the indictment contained a citation to both 8 U.S.C. §§ 1326(a) and2 Section 1326(b) increases Section 1326(a)’s maximum

possible term of imprisonment from two to 20 years for an alien whose prior removal was subsequent to commission of an aggravated felony. See 8 U.S.C. § 1326(b)(2).

3 ( b). 2 In October, Izaguirre pleaded guilty to the indictment in

conformance with a plea agreement.

The district court ordered a Presentence Report (“PSR”). The

probation officer recommended a base offense level of eight under

Sentencing Guidelines § 2L1.2(a). A base offense level of eight,

coupled with Izaguirre’s criminal h istory category of II, would

have set a sentencing range of four to ten months. Citing

Izaguirre’s 2003 North Carolina indecency conviction, the probation

officer recommended that Izaguirre’s base offense level be enhanced

under Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), which provides a

16-level enhancem ent to the base offense level of an alien

convicted under Section 1326 if the alien was previously deported

after conviction for a “crime of violence.” Izaguirre filed an

objection to the PSR, in which he argued that his prior indecency

conviction was not a crime of violence.

After exhaustive briefing by the parties and consideration of

the issue by the district court, it held that a violation of North

Carolina General Statute 14-202.1(a)(1) is a crime of violence for

purposes of Section 2L1.2 b ecause a violation of the statute

constit utes “sexual abuse of a minor,” which is a specificallyenumera ted offense under application note (1)(B)(iii) to Section

2L1.2. Accordingly, the district court determined that Izaguirre’s3 See United States v. Vasquez-Balandran , 76 F.3d 648, 649

(5th Cir. 1996); see also United States v. Villegas , —— F.3d ——, 2005 WL 627963, at * 2 (5th Cir. Mar. 17, 2005) (concluding that “when a district court has imposed a sentence under the Guidelines, this court continues, after Booker , to review the district court’s interpretation and application of the Guidelines

de novo .”). See United States v. Booker , —— U.S. ——, 125 S. Ct. 738 (2005).

4 See U. S. S ENTENCING G UIDELINES M ANUAL § 2L1.2(b)(1)(A)(ii)
(2003). The district court applied the 2003 version of the
Guidelines.

4 base offense level —— after having downwardly departed —— was 21,

which provides a range of 41 to 51 months imprisonment. The

district court sentenced Izaguirre to 41 months imprisonme n t.

Izaguirre timely filed his Notice of Appeal.

II. ANALYSIS

A. Standard of Review

The district court’s characterization of Izaguirre’s prior

conviction is a question of law that we review de novo

. 3

B. Discussion

1. “Sexual Abuse of a Minor”

An alien convicted of illegal reentry into the United States

after deportation is subject to a much longer sentence if, before

his deportation, he had committed a crime a vio lence. 4 The

application note to Section 2L1.2 defines a “crime of violence” as

any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory

rape, sexual abuse of a minor

. . . or any offense under federal, state, or local law that has as an element the5 See id. , cmt. n. 1(B)(iii) (emphasis added).

6 See United States v. Zavala–Sustaita , 214 F.3d 601, 603 (5th Cir. 2000). Because Izaguirre was convicted under Section 14- 202.1(a)(1), we need not —— and do not —— consider whether a violation of Section 14-202.1(a)(2) constitutes “sexual abuse of
a minor.” See N.C. G EN S TAT . § 14-202.1(a)(2) (noting that a person is guilty of taking indecent liberties with children if he “willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years”).

7 United States v. Pierce , 278 F.3d 282, 286 (4th Cir.
2002).

8 See id.

5 use, attempted use, or threatened use of physical force against the person of another. 5

Thus, to determine whether the district co urt properly enhanced

Izaguirre’s sentence, we must resolve whether Congress intended the

phrase “sexual abuse of a minor” to include conduct punishable

under North Carolina General Statute § 14-202.1(a)(1). 6 The

question whether an offense falls within Section 2L1.2’s definition

of “crime of violence” is a question of federal law. 7 As the

federal law here includes the possibility that a previous violation

may be one of state law, we look to state law to determine “its

nature and whether its violation is a crime of violence under

federal law.” 8

The parties disagree about the analysis that we are supposed

to employ to deci de whether “taking indecent liberties with9 We note, at the outset, that the Supreme Court’s recent

opinion in Booker does not control our analysis because here we address the application of the Guidelines only as they treat recidivism, expressly excluded under the Supreme Court’s Apprendi line of cases, including Booker

. See Booker , 125 S. Ct. at 756 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (emphasis added)).

10 495 U.S. 575 (1990).

11 See, e.g., United States v. Calderon-Pena , 383 F.3d 254, 257 (5th Cir. 2004) (en banc) (“Prior decisions of this court have accordingly held that the statute of conviction, not the defendant’s underlying conduct, is the proper focus.”); United
States v. Vargas-Duran , 356 F.3d 598, 606 (5th Cir. 2004) (en banc) (“Looking only at the fact of Vargas-Duran’s conviction and the statutory definition of intoxication assault, it is clear that the intentional use of force against the person of another is not a necessary component of the offense.”); United States v. Rodriguez-Rodriguez , 388 F.3d 466, 468-69 (5th Cir. 2004) (same).

6 children” constitutes “sexual abuse of a minor.” 9 Izaguirre urges

us to apply the categorical approach of Taylor v. United States

, 10

which requires us to analyze the elements of the state criminal

statute and then to match them to the elements of the offense of

“sexual abuse of a minor.” Specifically, Izaguirre argues that we

must base our determination on the language of the statute itself

and not the defendant’s underlying conduct, viz. , each element of

the statute of conviction must necess arily be encompassed within

the elements of the enu merated offense in Section 2L1.2, cmt.

(1)(B)(iii) to warrant the 16-level enhancement. 1112 See, e.g., United States v. Zavala-Sustaita , 214 F.3d

601, 604 (5th Cir. 2000) (“The best ‘ordinary, contemporary, common’ reading of the phrase ‘sexual abuse of a minor’ is that it encompasses a violation of Texas Penal Code § 21.11(a)(2) [sexual indecency with a child by exposure].”).

13 The previous Guidelines, under which we decided these three cases, defined “crime of violence” in two parts. The first section defined “crime of violence” as a violation of state,

federal or local law that “has as an element” the use of force.

See U.S. S ENTENCING G UIDELINES , § 2L1.2, cmt. n.1(B)(I) (2002). The
second definition included the enumerated offenses. See id. at cmt. n.1(B)(II). The 2003 Guidelines, under which the district court sentenced Izaguirre, combined the two definitions into one comment, although it kept the same wording. See id. , cmt. n.1(B)(iii) (2003). Thus, although the two sections are now one, there is no substantive change to the definition of “crime of
violence” in the Guidelines.

7 The district court employed a “common sense” approach to

determine whether a violation of Section 14-202.1(a)(1) constitutes

“sexual abuse of a minor.” 12 The district court held that

bas ic language and common sense indicates to you then
indecent liberties with a child is sexual abuse of a minor . . .

And then reading this statute, it would be clear to this

Court that this is sexual abuse of a minor. And that it

would be the common sense to read as to what the actions
would be to violate this statute.

The government ar gues that the district court’s “common sense”

approach is correct and should prevail.

Izaguirre’s reliance on Calderon-Pena

, Vargas-Duran

, and

Rodriguez-Rodriguez is misplaced. In those cases, we considered

whether the underlying statute of conviction “has as an element the

use, attempted use, o r threatened use of physical force against

another.” 13 Here, we do not decide whether a violation of the North

Carolina child indecency statute has force as an element. Thus, we14 See United States v. Sarmiento–Funes , 374 F.3d 336, 338

(5th Cir. 2004) (“An offense can be a ‘crime of violence’ either because it has as an element the use of force under paragraph (I) or because it fits within the enumerated list in paragraph
(II).”); Rodriguez-Rodriguez , 388 F.3d at 467 (“Because burglary of a building and [unauthorized use of a motor vehicle] are not among the offenses specifically enumerated in Application Note 1(B)(ii)(II), they are crimes of violence only if the statutory definitions have as an element ‘the use, attempted use, or threatened use of physical force against the person of
another.”). Although Izaguirre is correct that we have never condoned an individualized analysis of the defendant’s conduct which lead to the underlying conviction, we have condoned an examination of the underlying charging papers in addition to the analysis we perform on the language of the statute. See, e.g., Calderon-Pena , 383 F.3d at 258 n.5 (“Many sentencing provisions lack the ‘as an element’ language at issue here, and we have permitted broader uses of charging papers in such cases.”); United States v. Rodriguez-Duberney , 326 F.3d 613, 617 (5th Cir. 2003) (“From Taylor and Allen , we therefore conclude that in the case of a statute such as the one at issue here, where the underlying conduct may include conduct that would make the defendant eligible for an enhancement, the district court does not err when it looks to the underlying indictment for guidance.”); cf. Shepard v. United States , —— U.S. ——, 125 S. Ct. 1254, 1257 (2005) (holding that under the Armed Criminal Career Act a district court “determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”). In any event, the state indictment here is of no use to us because it merely tracks the language of Section 14-202.1(a)(1).

8 need not find that the elements of a violation under Section 14-

202.1(a)(1) coincide with those of “sexual abuse of a minor”

because “sexual abuse of a minor” is a specifically enumerated

offense. 1 4 Our analysis is not —— as the underlying statutes at

issue were in cases such as Calderon-Pena

—— contingent on whether15 See, e.g., United States v. Rayo-Valdez , 302 F.3d 314,

316 (5th Cir. 2002) (“Sexual abuse of a minor —— forcible or not
—— constitutes a crime of violence. So do all the other offenses listed in subparagraph II, regardless of their elements under
various state laws .) (emphasis added) (citations omitted).

16 Zavala-Sustaita , 214 F.3d at 604; see also United States v. Dominguez-Ochoa , 386 F.3d 639, 642-43 (5th Cir. 2004) (“ Taylor instructs that where, as here, the enhancement provision does not specifically define the enumerated offense, we must define it according to its generic, contemporary meaning, and should rely on a uniform definition, regardless of the labels employed by the various States criminal codes.”) (citations and quotations omitted).

17 Vargas-Duran , 356 F.3d at 602.

18 B LACK ’ S L AW D ICTIONARY 10 (8th ed. 2004). Black’s does not
define “sex act.”

9 a particular element is encompassed within the underlying statute. 15

Thus, a common sense approach to the question satisfies us here.

In other words, we must determine whether a violation of Section

14-202.1 constitutes “sexual abuse of a minor” as that term is

understood in its “ordinary, contemporary, [and] common” meaning. 16

The parties do not dispute that a violation of Section 14-

202(a)(1) invol ves a minor. The dispute here turns on the term

“sexual abuse.” As “sexual abuse” is not defined by the Sentencing

Guidelines, we look first to its plain, ordinary meaning. 17 Black’s

Law Dictionary def ines “sexual abuse” as “[a]n illegal sex act,

esp[ecially] one performed against a minor by an adult.” 1 8

Webster’s Thi rd New International Dictionary defines “sexual” as

“of, relating to, or associated with sex as a characteristic of an19 W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 2082 (1986).

20 See N.C. G EN

. S TAT . § 14-202.1(a)(1) (“. . . for the purpose of arousing or gratifying sexual desire.”).

21 W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 8 (1986)

22 214 F.3d at 605.

23 Id.

24 See id.

10 organic being.” 19 It is therefore clear that a Section 14-

202.1(a)(1) violation is sexual because it must have sexual arousal

or gratification as its purpose. 20

Less clear is whether every violation of Section 14-

202.1(a)(1) constitutes “abuse.” Webster’s defines “abuse” as to

“take unfair or u ndue advantage of” or “to use or treat so as to

injure, hurt, o r damage.” 2 1 In Z avala-Sustaita

, we held that a

violation of Texas Penal Code § 21.11(a)(2)

—— the Texas indecency

by exposure statute —— constituted “sexual abuse of a minor” even

though the defendant, by exposing himself, did not physically touch

the minor. 22 There, we reasoned that, even though the defendant

never caused physical harm, “[t]he act [was] ‘abusive’ because of

the psychological harm inflicted irrespective of the pr esence of

physical injury.” 23 Thus, we reasoned that “abuse” involved either

physical or psychological harm to the minor. 24

We hold that the conduct criminalized by Section 14-

202.1(a)(1) constitutes “sexual abuse of a minor,” as we generally

understand that term. Gratifying or arousing one’s sexual desires25 See, e.g., United States v. Baron-Medina , 187 F.3d 1144,

1147 (9th Cir. 1999) (“The use of young children for the gratification of sexual desires constitutes an abuse.”).

26 We note that the Eleventh Circuit’s definition of “sexual abuse of a minor” is equally applicable here: “[T]he phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” United States v. PadillaReyes , 247 F.3d 1158, 1163 (11th Cir. 2001).

27 See State v. McClees , 424 S.E.2d 687, 689-91 (N.C. 1993) (holding that defendant who videotaped minor in dressing room violated Section 14-202.1 even though minor did not know of videotaping).

11 in the actual or constructive presence of a child is sexual abuse

of a minor. 25 Taking indecent liberties with a child to gratify

one’s sexual desire constitutes “sexual abuse of a minor” because

it involves taking undue or unfair advantage of the minor and

causing such minor psychological —— if not physical —— harm. 26

Izaguirre concedes that a physical act is not required for

conduct to be violative of the North Carolina statute. He contends,

however, that Section 14-202.1(a)(1) encompasses a broader range of

conduct than that prohibited by the Sentencing Guidelines. In sum,

Izaguirre argues that, in addition to criminalizing condu ct that

constitutes “sexual abuse of a minor,” Section 14-202.1(a)(1) also

encompasses conduct that does not. Izaguirre cites to several North

Carolina decisions to support this argument. 27 Attempting to

distinguish our prior holding in Zavala-Sustaita

, Izaguirre argues

that there is no requirement under Section 14-202.1(a)(1) “that the

sexual content of the act, or, indeed, the act itself be made known28 State v. Etheridge , 352 S.E.2d 673, 682 (N.C. 1987);

State v. Every , 578 S.E.2d 642, 648 (N.C. Ct. App. 2003) (citing Etheridge ).

29 See State v. Hartness , 391 S.E.2d 177, 180 (N.C. 1990) (“The evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child ‘for the purpose of arousing or

12 to the mi nor victim.” Thus, he urges that because there exists

conduct that violates Section 14-202.1(a)(1) but causes no physical

or psychological harm to the minor, Section 14-202.1(a)(1) sweeps

too broadly and the conduct prohibited by the North Carolina

statute cannot constitute “sexual abuse of a minor” as a matter of

law. To support this asertion, Izaguirre proffers the example a

shoe- or foot-fetishist who steals “a teenage girl’s shoe while she

s[its] barefoot o n the grass. This act would be an ‘improper’

‘liberty,’ committed in the presence of the min or, which act

provided sexual gratifications to the perpetrator —— but it would

not be what most people understand as ‘sexual abuse of a minor.’”

Izaguirre also points out that the North Carolina courts that

have interpreted Sec t ion 14-202.1(a)(1) have done so broadly,

specifically noting that the indecent liberties statute was enacted

“to encompass more types of deviant behavior, giving children

broader protection than available under other statutes proscribing

sexual acts.” 28 Indeed, as Izaguirre observes, the North Carolina

courts have interpreted Section 14-202.1(a)(1) so broadly as to

include almost any indecent or improper act that pr ovides sexual

gratification to the actor. 29gratifying sexual desire.’”); Every , 578 S.E.2d at 648 (“Not only

do these decisions demonstrate that a variety of acts may be considered indecent and may be performed to provide sexual gratification to the actor, they also demonstrate the scope of the statute’s protection: to encompass more types of deviant behavior and provide children with broader protection than that available under statutes proscribing other sexual acts.”) (citations and quotations omitted).

30 See United States v. Sarmiento-Funes , 374 F.3d 336, 345 (5th Cir. 2004) (holding that enumerated offense “forcible sex offense” encompassed narrower conduct than that prohibited by
state statute and thus court could not affirm sentence on that basis); see also United States v. Palomares-Candela , 104 Fed. Appx. 957, 960-61, 2004 WL 1570359, at *3 (5th Cir. Jul 14, 2004) (unpublished disposition) (following Sarmiento-Flores to hold that Colorado second-degree sexual assault conviction not “forcible sex offense” because state violation encompassed broader conduct than “forcible sex offense.”).

31 Sarmiento-Flores , 374 F.3d at 345.

13 In similar cases, when we have been called on to determine

whether a violation of a state statute constitutes a specifically

enumerated offense under Application Note (1)(B)(iii), we have held

that when the enumerated offense under the Guidelines encompasses

a narrower range of conduct than that prohibited by the state

statute, we cannot hold as a matter of law that the s entencing

enhancement is proper. 30 In other words, when the statute of

conviction encompasses prohibited behavior that is not within the

plain, ordinary meaning of the enumerated offense, we cannot uphold

a sentence on that ground alone. 31

Nevertheless, Izaguirre’s foot-fetishist example, although

superficially persuasive, misses the mark and reads too much into

Section 14-202.1(a)(1). Izaguirre’s example fails because he reads32 See State v. Every , 578 S.E.2d 642, 648 (N.C. Ct. App.

2003) (“The breadth of the conduct that has been held violative of the statute indicates a recognition by our courts of ‘the significantly greater risk of psychological damage to an impressionable child from overt sexual acts . . . )(quoting State
v. Hicks , 339 S.E.2d 806, 809 (N.C. Ct. App. 1986)) (emphasis
added).

33 Hartness , 391 S.E.2d at 567.

34 See United States v. Female Juvenile , 103 F.3d 14, 16-17 (5th Cir. 1996)(“Axiomatic in statutory interpretation is the principle that laws should be construed to avoid an absurd or
unreasonable result.”).

35 Our conclusion is buttressed by the Eleventh Circuit’s finding in Bahar v. Ashcroft that a violation of Section 14-202.1 constitutes “sexual abuse of a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A). 264 F.3d 1309 (11th Cir. 2001); see also United
States v. Gonzalez-Michel , 112 Fed. Appx. 261, 262, 2004 WL

14 too broadly the statutory language “for the purpose of arousing or

gratifying sexual desire.” The North Carolina courts that have

treated Section 14- 202.1(a)(1) have noted that its purpose is to

protect children from “overt sexual acts,” not merely some vague,

ethereal sentiment on the part of the perpetrator. 32 Indeed, as the

North Carolina Supreme Court has said, “[d]efendant’s purpose for

committing such act is the gravamen of this offense.” 33 If we were

to adopt Izaguirre’s argument, we would be hard-pressed to find an

act that did not violate Section 14-202.1(a)(1); but we will not

interpret a statute in a fashion that will produce absurd results. 34

For this reason, we reject Izaguirre’s argument and hold that a

violation of Section 14-202.1(a)(1) constitutes “sexual abuse of a

minor” for purposes o f the sentencing enhancement in Sentencing

Guidelines § 2L1.2. 352321971, at *1 (4th Cir. Oct. 14 2004) (noting that “GonzalezMichel does not dispute that the offense [a violation of Section 14-202.1] constitutes sexual abuse of a minor.”).

36 530 U.S. 466 (2000).

37 523 U.S. 224 (1998).

38 See Apprendi , 530 U.S. at 489-90; United States v. Garcia-Mejia , —— F.3d. ——, 2004 WL 2937670, at *2 (5th Cir. Dec.
20, 2004); United States v. Dabeit , 231 F.3d 979, 984 (5th Cir.
2000).

39 Dabeit , 231 F.3d at 984 (internal quotation marks and citation omitted).

15 2. Unconstitutionality of 8 U.S.C. §§ 1326(b)(1) & (2)

Izaguirre also insists that 8 U.S.C. §§ 1326(b)(1) and (2) are

unconstituti onal in light of A pprendi v. New Jersey

. 36 Izaguirre

concedes that this argument is foreclosed by Almendarez-Torres v.

United States

. 37 A pprendi did not overrule Almendarez-Torres

, 38 and

we are required to foll ow it “unless and until the Supreme Court

i tself determines to overrule it.” 3 9 Thus, this argument has no

merit.

III. CONCLUSION

We affirm the district court’s enhancement of Izaguirre’s

sentence and hold that a violat ion of North Carolina General

Statute § 14-202.1(a)(1) constitutes “sexual abuse of a minor” for

purposes of the “crime of violence” enhancement in Sentencing

Guidelines § 2L1.2. We further reject Izaguirre’s A pprendi

argumen t as foreclosed by the Supreme Court’s opinion in

Almendarez-Torres

.16

AFFIRMED.