In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 14-1994 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ALEJANDRO ZUNIGA-GALEANA, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 13 CR 379 — Samuel Der-Yeghiayan, Judge. 

____________________ 

ARGUED AUGUST 5, 2015 — DECIDED AUGUST 24, 2015 

____________________ 

Before WOOD, Chief Judge, and BAUER and MANION, Circuit Judges. 

PER CURIAM. Defendant-Appellant, Alejandro ZunigaGaleana (“Zuniga”), pleaded guilty to illegal reentry after 

deportation, see 8 U.S.C. § 1326(a), and was sentenced to 41 

months’ imprisonment. He appeals, arguing that the district 

court improperly increased his total offense level by 16 for 

previously having been convicted of a “crime of violence,” 

see U.S.S.G. § 2L1.2(b)(1)(A)(2014)—specifically, a 1991 con-
2 No. 14-1994 

viction in Illinois for aggravated criminal sexual abuse. He 

contends that the categorical approach requires a narrower 

understanding of the generic definitions of “sexual abuse of 

a minor” and “statutory rape,” two crimes of violence enumerated under the guideline, than was held by the district 

court, so his 1991 conviction should not have been considered a crime of violence. For the reasons that follow, we affirm. 

I. BACKGROUND 

Zuniga entered the country unlawfully from Mexico in 

1989. In September 1991, he was convicted in Illinois state 

court of aggravated criminal sexual abuse. See 720 ILCS 

5/11–1.60(d).1

At the time Zuniga, then 30 years old, was in a 

consensual, romantic relationship with a 15-year-old girl. 

The statute criminalizes “an[y] act of sexual penetration or 

sexual conduct with a victim who is at least 13 years of age 

but under 17 years of age [if] the person is at least 5 years 

older than the victim.” Zuniga was sentenced to 80 days’ 

imprisonment. He and the girl maintained their relationship 

for several years and had four children together. 

Shortly after his conviction, Zuniga was deported. He 

soon returned to the United States, again unlawfully, ostensibly to help care for his minor children. He apparently resided in the United States without incident until 2007, when 

he was arrested for domestic battery following an altercation 

with his eldest child. The charges were nolle prossed. 

 

1

 Illinois has reorganized its statute books since 1991, but the definition of 

Zuniga’s particular offense has remained unchanged. We thus use the 

current citation.
No. 14-1994 3

Six years later, in 2013, Zuniga was charged with illegal 

reentry, and he pleaded guilty shortly thereafter. See 8 U.S.C. 

§ 1326(a). The plea agreement contemplated a total offense 

level of 21 and a criminal history category of II. According 

to the plea agreement, Zuniga’s base offense level would be 

8, see U.S.S.G. § 2L1.2(a), and he would receive a 16-level 

upward adjustment because he was previously deported after a “crime of violence”—the 1991 conviction—see 

id. § 2L1.2(b)(1)(A)(ii), and a 3-level reduction for acceptance 

of responsibility, see id. § 3E1.1. He also would receive 2 

criminal-history points for the 1991 conviction. The probation officer’s calculations in the PSR mirrored those in the 

plea agreement. Zuniga never objected to the PSR, and the 

district court adopted it without change. The resulting 

guidelines range was 41 to 51 months. Zuniga argued that 

the 16-level increase vastly overstated the seriousness of his 

1991 conviction and sought a below-guidelines sentence. The 

district court, with no elaboration, rejected that argument 

and concluded that the appropriate term was 41 months. 

II. DISCUSSION 

On appeal Zuniga now contests the 16-level increase in 

his guidelines offense level. A threshold question is whether 

we may even consider this argument. The government contends that we may not reach the merits of Zuniga’s argument because he has waived it. Zuniga counters that he has 

merely forfeited his appellate claim. We resolve this dispute 

at the outset because waiver would preclude further appellate review. See United States v. Olano, 507 U.S. 725, 733–34 

(1993). A litigant waives an argument only through a knowing and intentional decision to forego that argument. Id.; 

United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). But if 
4 No. 14-1994 

the omission of an argument is accidental or neglectful, the 

argument is merely forfeited, subject to plain-error review. 

United States v. Jaimes-Jaimes, 406 F.3d 845, 847–48 (7th Cir. 

2005). When, as here, the record contains no evidence of an 

explicit waiver, we will consider whether waiver may be 

nonetheless inferred because the party had an identifiable, 

strategic reason to have foregone a particular argument. 

United States v. Butler, 777 F.3d 382, 386–87 (7th Cir. 2015). 

Applying these principles, we conclude that Zuniga’s argument is merely forfeited, and not waived. The government offers two potential strategic explanations for Zuniga’s 

failure to object to the 16-level increase, but neither withstands scrutiny. First, the government notes that two decisions of this court, United States v. Martinez-Carrillo, 250 F.3d 

1101 (7th Cir. 2001), and United States v. Ramirez, 675 F.3d 634 

(7th Cir. 2011), rejected similar challenges to application of 

the 16-level adjustment under § 2L1.2. The government’s 

point, presumably, is that counsel’s strategy was to avoid 

pressing a frivolous argument and instead to ask the district 

court for leniency. But an intervening decision from the 

Ninth Circuit, United States v. Acosta-Chavez, 727 F.3d 903, 

908 (9th Cir. 2013), shows that an objection to the 16-level 

increase would not have been frivolous. Acosta-Chavez categorically rejected application of the 16-level increase for convictions under the very same Illinois statute. So whether or 

not a plea for leniency was a more promising argument than 

an objection to the 16-level increase, we see no strategic reason for failing even to preserve the issue for appellate review. The government’s second argument about waiver 

fares no better. The government contends that Zuniga’s trial 

counsel may have deliberately refrained from objecting to 

the 16-level increase to keep the district court from focusing 
No. 14-1994 5

on the facts of Zuniga’s past crime. The record refutes the 

premise of this argument: at sentencing, counsel did highlight the facts underlying Zuniga’s 1991 conviction when arguing that it overstated his criminal history. 

Far from an instance of waiver, this case is similar to Butler, where we concluded that the defendant had forfeited, 

rather than waived, a challenge to his guidelines calculation. 

In Butler, the defendant’s trial lawyer had framed his disagreement with a 2-level increase in the guidelines calculation 

as an argument in mitigation under 18 U.S.C. § 3553(a). 777 

F.3d at 386–87. We concluded that counsel’s failure to frame 

his argument as a direct objection to the guidelines calculation was the result of an oversight. Id. at 388. The same is 

true here. Counsel argued to the district court that, in determining the sentence, the 16-level increase should be mitigated by the actual details of his past criminal history. Furthermore, as in Butler, and as we have already observed, we 

cannot conceive of any strategic reason for bypassing a direct objection to the 16-level increase, and instead arguing 

only in mitigation. We will therefore review Zuniga’s argument for plain error. 

Zuniga argues that the district court’s application of the 

16-level increase for his 1991 conviction was plainly erroneous because 720 ILCS 5/11–1.60(d), the Illinois statute for aggravated criminal sexual abuse, is categorically overbroad. A 

state offense is categorically overbroad if the crime is defined in such a way that it punishes more conduct than does 

the offense as commonly, or “generically,” understood. The 

commentary to U.S.S.G. § 2L1.2 defines “crime of violence” 

to include a long list of offenses, including “sexual abuse of a 

minor,” and “statutory rape.” See U.S.S.G. § 2L1.2 cmt. 
6 No. 14-1994 

n.1(B)(iii). But according to Zuniga, neither of those enumerated offenses should apply here because the Illinois statute 

criminalizes a broader swath of conduct than the “generic” 

versions of those crimes. 

Zuniga’s focus on the generic versions of these two 

crimes is a byproduct of the so-called categorical approach 

to assessing the consequences of state convictions for federal 

sentencing. See Descamps v. United States, 133 S. Ct. 2276 

(2013). Under the categorical approach, which every circuit 

has held applies when comparing state convictions to the 

offenses enumerated in the commentary to U.S.S.G. § 2L1.2, 

an enumerated predicate offense sweeps only as broadly as 

the “generic, contemporary” understanding of that crime. 

See Taylor v. United States, 490 U.S. 575, 598 (1990). To determine whether a previous state conviction qualifies as a 

“crime of violence,” a federal court therefore asks whether 

the elements of the state offense of conviction align with the 

elements of the generic version of any enumerated predicate 

offense. A state crime may qualify as a predicate conviction 

only if the elements of the state crime mirror, or are narrower than, the elements of the generic crime. Descamps, 133 S. 

Ct. at 2283. If a state law sweeps more broadly than the generic crime, the categorical approach provides that a conviction under that law may not serve as a predicate offense. 

Moncrieffe v. Holder, 133 S. Ct. 1678, 1686–87 (2013). There is 

another possibility: a state law may set forth a number of alternative sets of elements for a crime. In that situation only, 

the categorical approach is modified, and a court is permitted to consult a limited number of documents to determine 

which set of elements formed the basis of the defendant’s 

previous conviction. Descamps, 133 S. Ct. at 2284–85. But under either method, the defendant’s actual conduct is irrele-
No. 14-1994 7

vant. The inquiry is limited to whether the elements of the 

crime of conviction categorically fit within the “generic” federal definition of a corresponding predicate felony. 

Moncrieffe, 133 S. Ct. at 1684. 

Under this rubric, Zuniga asserts that his 1991 conviction 

may not be used to increase his offense level by 16. He contends the “generic” versions of both sexual abuse of a minor 

and statutory rape place the age at which consent is valid at 

16, while the Illinois statute places it at 17. Thus, he says, the 

Illinois crime cannot be a “crime of violence.” (The government does not suggest that Zuniga’s conviction qualifies as a 

crime of violence for any other reason.) 

In considering this question, we do not write on a blank 

slate. In United States v. Martinez-Carrillo we concluded that 

the defendant had committed “sexual abuse of a minor,” 

and thus qualified for the 16-level increase under U.S.S.G. 

§ 2L1.2, in part because the victim of his earlier crime was 

younger than 18. 250 F.3d 1101, 1103–05 (7th Cir. 2001). We 

wrote that the “ordinary, contemporary, and common meaning” of the word “minor”—and thus the meaning relevant to 

a generic offense—is one who has not reached the age of 18. 

250 F.3d at 1104 (citing BLACK’S LAW DICTIONARY (6th ed. 

1990)). So under Martinez-Carrillo, Zuniga loses: section 5/11–

1.60(d) defines the age of consent more narrowly than the 

generic versions of sexual abuse of a minor and statutory 

rape, and Zuniga’s conviction is for a crime of violence. 

Zuniga submits that Martinez-Carrillo is distinguishable, 

but we are not persuaded. He contends that Martinez-Carrillo

was concerned only with whether § 5/11–1.60(d) was an 

“aggravated felony” rather than a crime of violence. Thus, 

he continues, Martinez-Carrillo can justify only increasing his 
8 No. 14-1994 

offense level by 8, not 16. See U.S.S.G. § 2L1.2(b)(1)(C). Addressing this contention requires some brief background: At 

the time Martinez-Carrillo was decided, U.S.S.G. 

§ 2L1.2(b)(1)(A) required a 16-offense-level increase if the 

defendant previously had been convicted of an “aggravated 

felony” as that term was defined in the Immigration and Nationality Act. See id. cmt. n.1 (2000). The INA defines “aggravated felony” to include “sexual abuse of a minor.” 8 U.S.C. 

§ 1101(a)(43)(A). The Sentencing Commission amended the 

guideline, effective November 2001, to require a 16-level increase for a “crime of violence” and an 8-level increase for 

having previously committed an “aggravated felony.” 

U.S.S.G. Amdt. 632, App. C, Vol. II, at 217–19. Zuniga essentially argues that these amendments effectively limited Martinez-Carrillo. 

He is incorrect. We concluded in Martinez-Carrillo that 

the defendant had been convicted of sexual abuse of a minor 

specifically, not an aggravated felony generally. See 250 F.3d 

at 1104. And after the amendment, the new commentary defined “crime of violence” to include “forcible sexual offenses 

(including sexual assault of a minor).” A further amendment 

made “sexual assault of a minor” and “statutory rape” 

standalone enumerated crimes of violence. U.S.S.G. Amdt. 

658, App. C, Vol. II, at 397–98. “And an enumerated offense 

always is a crime of violence for purposes of 

§ 2L1.2(b)(1)(A)(ii).” United States v. Ramirez, 675 F.3d 634, 

639 (7th Cir. 2011). 

Relying on the same historical foundation, Zuniga next 

disparages the precedential weight of Martinez-Carrillo. He 

suggests that in that case we merely deferred to the definition of “sexual abuse of a minor” adopted by the Board of 
No. 14-1994 9

Immigration Appeals (the agency responsible for administering the INA). But his premise is mistaken. We defer to an 

administering agency’s interpretation of a statute only if the 

statute is ambiguous. See City of Arlington v. F.C.C., 133 S. Ct. 

1863, 1868 (2013); Brumfield v. City of Chicago, 735 F.3d 619, 

626 (7th Cir. 2013). And at the time we decided MartinezCarrillo, we did not find the relevant provision of the INA to 

be ambiguous. See Lara-Ruiz v. INS, 241 F.3d 934, 942 (7th 

Cir. 2001) (“We find that § 1101(a)(43)(A) is not ambiguous.”). 

Unable to distinguish Martinez-Carrillo, Zuniga lastly argues that we should reject it. He maintains that we were 

wrong to conclude that the “ordinary, contemporary, and 

common meaning” of the word “minor” is one younger than 

18, as opposed to someone younger than 16. That contention 

has some force. Although in 2001 we held that the term 

“sexual abuse of a minor” was clear cut, we recently concluded that the phrase is susceptible to multiple interpretations. See Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th Cir. 

2014). And both the Fourth and Ninth Circuits have held 

that, as a categorical matter, a “minor” for the purpose of 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) is someone under the age of 

16. See Acosta-Chavez, 727 F.3d at 908 (concluding that 720 

ILCS 5/11–1.60(d) is categorically overbroad); United States v. 

Rangel-Castaneda, 709 F.3d 373, 378 (4th Cir. 2013) (concluding that Tennessee’s statutory rape law is overbroad). What 

is more, thirty-three states, the District of Columbia, the federal government, and the Model Penal Code place the age of 

consent at 16. See 18 U.S.C. § 2243(a); Velasco-Giron, 773 F.3d 

at 782 (Posner, J., dissenting); see also Taylor, 495 U.S. at 598 

(“We believe that Congress meant by ‘burglary’ the generic 
10 No. 14-1994 

sense in which the term is now used in the criminal codes of 

most States.”). 

But we are not alone in defining “minor,” for these purposes, to include anyone under the age of 18. Our definition 

is in harmony with decisions of both the Fifth and Eighth 

Circuits. See United States v. Rodriguez, 711 F.3d 541, 560 (5th 

Cir. 2013) (en banc); United States v. Medina-Valencia, 538 F.3d 

831, 834 (8th Cir. 2008). Moreover, the five most populous 

states in the union—California, Texas, New York, Florida, 

and Illinois—have, along with 12 others, set the age of consent at 17 or 18. See Rodriguez, 711 F.3d at 567 (Owen, J., concurring); United States v. Viezcas-Soto, 562 F.3d 903, 914 (8th 

Cir. 2009) (Gruender, J., dissenting) (“It seems to me that a 

definition of ‘statutory rape’ that excludes the statutory rape 

laws of seventeen states, including the most populous state 

in the Union, along with [Texas, New York, Florida, and Illinois], cannot reasonably be classified as ‘generic.’”). 

At bottom, then, Zuniga’s argument is a request that we 

move from one side of a circuit split to another. We have repeatedly incanted that we require “compelling reasons” to 

depart from our precedent. See Santos v. United States, 461 

F.3d 886, 891 (7th Cir. 2006) (quoting McClain v. Retail Food 

Employers Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 

2005)). And we often have refused to alter our position even 

when every other circuit to consider a particular question 

disagrees with our conclusion. See Grandberry v. Keever, 735 

F.3d 616, 618–19 (7th Cir. 2013); Santos, 461 F.3d at 891–93. 

The situation here is not remotely one-sided. Zuniga has 

demonstrated that the definition of “minor” is debatable. 

“However, simply showing that a point is debatable is not 

enough to meet the compelling-reasons standard for over-
No. 14-1994 11

turning circuit precedent.” Santos, 461 F.3d at 893. And Zuniga does not present us with any other reason, compelling or 

otherwise, to disregard what we said in Martinez-Carrillo. 

III. CONCLUSION 

For the foregoing reasons, Zuniga’s sentence is 

AFFIRMED.