REVISED JUNE 29, 2000

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-50911

____________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUAN AGUSTIN ZAVALA-SUSTAITA,

Defendant - Appellant.

Appeal from the United States District Court

For the Western District of Texas

June 13, 2000

Before EMILIO M. GARZA, DeMOSS, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Juan Agustin Zavala-Sustaita (“Zavala”) asks us to resolve a question of first impression in

this circuit: whether sexual indecency with a child by exposure constitutes “sexual abuse of a minor”

for purposes of the aggravated felony sen t encing enhancement in Sentencing Guidelines § 2L1.2.

Because we conclude that this offense is an aggravated felony, we affirm Zavala’s sentence.-2- I

In 1990, Zavala pled guilty to two counts of indecency with a child in violation of Texas Penal

Code § 21.11(a)(2). The counts were based on a single episode when he exposed himself in public

and masturb at ed in front of a thirteen-year-old girl and a ten-year-old boy. He looked at the girl

during the episode but he did not have physical contact with either child. Zavala received concurrent

one-year sentences for the convictions, and he was deported later that year.

In 1999, Zavala pled guilty to the instant offense of illegal reentry after removal in violation

of 8 U.S.C. § 1326. Citing Zavala’s 1990 indecency convictions, the government argued that his §

1326 sentence should be enhanced because he had previously committed two “aggravated felonies.”

Zavala objected, arguing that a violation of Texas Penal Code § 21.11(a)(2) i s not an aggravated

felony. Finding that it was, the district court increased Zavala’s offense level by sixteen points and

sentenced him to seventy-seven months imprisonment.

Zavala now appeals the enhancement. The district court’s characterization of Zavala’s prior

convictions is a question of law which we review de novo

. S ee United States v. Vasquez-Balandran

,

76 F.3d 648, 649 (5 th Cir. 1996).

II

A defendant convicted of illegal reentry after removal is subject to a much longer sentence

if he was previously removed “subsequent to a conviction for commission of an aggravated felony.”

8 U.S.C. § 1326( b)(2) (pro viding for up to a twenty-year sentence for former aggravated felons,

increased from the normal sentence of no more than two years). The Sentencing Guidelines

implement this enhancement in § 2L1.2, which increases the base offense level for a § 1326 violation

from eight to twenty-four “[i]f the defendant previously was deported after a criminal conviction

.1 In Zavala’s case, given his criminal history of VI, this increased his sentencing range (without other

adjustments) from 18-24 months to 100-125 months.

2 The government also argues that indecency with a child is an aggravated felony by virtue of being

“a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the

term of imprisonment at [ sic ] least one year.” 8 U.S.C. § 1101(a)(43)(F). As we determine that Zavala’s prior offense

is an aggravated felony because it was “sexual abuse of a minor,” we need not reach the government’s altern ative

argument.

-3- . . for an aggrav at ed felony.” 1 United States Sentencing Commission, G uidelines Manual

, §

2L1.2(b)(1)(A) (1998) (providing a sixteen-level enha ncement for aggravated felons). The

commentary to § 2L1.2 defines the term “aggravated felony” by referencing 8 U.S.C. § 1101(a)(43).

See id. § 2L1.2 comment. (n.1). Section 1101(a)(43), in turn, lists various offenses which constitute

aggravated felonies, one of which is at issue here: (1) “murder, rape, or sexual abuse of a minor.”

8 U.S.C. § 1101(a)(43)(A). 2

Thus, to resolve whether Za v ala’s enhancement was proper, we must determine whether

Congress intended the phrase “sexual abuse of a minor” to inclu de conduct punished under Texas

Penal Code § 21.11(a)(2). In making this determination, we emplo y a categorical approach,

considering whether the elements of a § 21.11(a)(2) offense describe “sexual abuse of a minor” rather

than whether Zavala’s specific conduct constituted “sexual abuse of a minor.” S ee Lopez-Elias v.

Reno

, 209 F.3d 788, 791 (5 th Cir. 2000); cf. Taylor v. United States

, 495 U.S. 575, 599-602, 110 S.

Ct. 2143, 109 L. Ed. 2d 607 (1990) (looking to the statutory definition of an offense to determine

whether it was a “burglary” within the meaning of the Anti-Drug Abuse Act of 1986). At the time

of Zavala’s convictions, Texas Penal Code § 21.11(a)(2) punished someone who “exposes his anus

or any part of his genitals, knowing the child [under 17] is present, with intent to arouse or gratify3 By contrast, § 21.11(a)(1) punishes someone who actually “engages in sexual contact with the child.”

Id. § 21.11(a)(1). Whereas indecency by contact under § 21.11(a)(1) is a second degree felony, indecency by exposure

under § 21.11(a)(2) is a third degree felony

. See id. § 21.11(c) (formerly § 21.11(d)).

Had Zavala’s prior offenses been § 21.11(a)(1) offenses involving physical contact, we would clearl y treat

them as aggravated felonies. In U nited States v. Velazquez-Overa

, 100 F.3d 418 (5 th Cir. 1996), we held “categorically

that indecency with a child involving sexual contact, under Section 21.11(a)(1) of the Texas Penal Code, is a crime

of violence within the meaning of 18 U.S.C. § 16(b). The offense is therefore an aggravated felony as defined in

Section 2L1.2 of the Sentencing Guidelines.” Id. at 422-23. We did not reach the question presented here, whether

indecency with a child under § 21.11(a)(2) is an aggravated felony. S ee id. at 421 n.3 (“We are not called upon to

decide and do not reach the question whether an offense of indecency with a child not invol ving sexual contact

inherently involves a substantial risk of force.”).

4 These elements limit the conduct which will support an indecency conviction. S ee, e.g.

, Bermudez

v. State

, 878 S.W.2d 227, 230 (Tex. App. 1994) (finding insufficient evidence to support an indecency conviction when

the child only stated that she saw the defendant’s “private parts”); Castillo v. State

, 771 S.W.2d 239, 240-42 (Tex.

App. 1989) (finding insufficient evidence that the defendant knew the child was present when the child testified that

she saw the defendant walking around naked outside her house late at night; noting that “the record is devoid of any

attention getting conduct by the appellant such as pointing, gesturing, play ing with genitals, masturbating, smiling,

laughing, beckoning, etc.”)

.

-4- the sexual desire of any person.” Tex. Penal Code § 21.11(a)(2). 3 We therefore consider whether

a person convicted of (1) exposing himself to a minor, (2) knowing that the minor is present, (3) with

the intent to arouse or gratify anyone’s sexual desire, has committed “sexual abuse of a minor.” 4 S ee

Tex. Penal Code § 21.11(a)(2) (defining the offense); Johnson v. Texas

, 967 S.W.2d 848, 850 (Tex.

Crim. App. 1998) (stating that the defendant need only know the child is present, not what the child’s

age is); McKenzie v. Texas

, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (stating that the “requisite

specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's

conduct, his remarks and all surrounding circumstances”).

Our starting point is the language Congress employed in § 1101(a)(43)(A). S ee Lara v.

Cinemark USA, Inc.

, 207 F.3d 783, 787 (5 th Cir. 2000) (“In interpreting a statute or regulation, we

first look to the statute or regulation's plain language.”); United States v. Baron-Medina , 187 F.3d

1144, 1146 (9 th Cir. 1999) (applying a “common meaning” reading of the phrase “sexual abuse of a

minor” in § 1101(a)(43)(A)). We “properly assume, absent sufficient indication to the contrary, that-5-

Congress i nt ends t he words in its enactments to carry ‘their ordinary, contemporary, common

meaning.’” P ioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership

, 507 U.S. 380, 388, 113

S. Ct. 1489, 123 L. Ed. 2d 74 (1993) (internal quotati ons omitted), quoted in Matter of England

, 153

F.3d 232, 235 (5 th Cir. 1998). If these words are unambiguous, we end our inquiry with them. S ee

Republic of Kazakhstan v. Biedermann Int’l , 168 F.3d 880, 881 (5 th Cir. 1999).

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). The victim of a § 21.11(a)(2)

offense, “a child younger than 17 years,” is clearly a “minor.” Less clear is whether intentionally and

knowingly exposing one’s genitals to a minor for sexual arousal or gratification constitutes “sexual

abuse.” Considering each word in isolation, a § 21.11(a)(2) violation is clearly “sexual abuse.” T he

American Heritage Dictionary defines sexual as “[o]f, pertaining to, affecting, or characteristic of

sex, th e sexes, o r the sex organs and their functions,” and it defines abuse as, i nter alia

, “[t]o use

wrongly or improperly” or “[t]o hurt or injure by maltreatment .” T H E A MERICAN H ERITAGE

D ICTIONARY 70, 1124 (2d College ed. 1982). A § 21.11(a)(2) violation is “sexual” because it must

have sexual arousal or gratification as its purpose. It is abusive because it requires exposure with

kno wledge of the child’s presence, thereby wrongly and improperly using the minor and thereby

harming the minor. Cf. Uribe v. Texas

, 7 S.W.3d 294, 297 (Tex. App. 1999, pet. ref’d 2000) (“The

obvious intent of indecency laws is to protect children.”); California v. Stoddard

, 227 Cal. App. 2d

40, 41-42 (1964) (upholding a commitment order against a person who was predisposed to commit

indecent exposure to girls with “no likelihood of physical contact with them,” because the resulting

“threat of psychological trauma is qu it e as much a ‘menace to the health or safety of others’ as is

probable physical injury”).5 Zavala cites a definition of “sexual abuse” from Black’s Law Dictionary which he argues supports

a narrower reading: “Illegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance.”

B LACK ’ S L AW D ICTIONARY 1375 (6 th ed. 1990). Putting aside this definition’s requirement that there be some minimal

relationship between the abuser and the abused, which would lead to a n entirely implausible reading of the phrase

“sexual abuse of a minor,” cf., e.g.

, Arthur J. Lurigio, et al.

, Child Sexual Abuse: Its Causes, Consequences, and

Implications for Probation Practice

, 59 F ED

. P ROBATION 69, 69 (1995) (“Victims and offenders may be relatives,

acquaintances, or absolute strangers to each other.”), this definition does not significantly help Zavala. The definition

requires acts “performed against a minor,” but this arguably encompasses exposure in the presence of a minor for the

purpose of sexual gratification; the act is performed “against” the minor because it requires the minor’s presence and

the defendant’s knowledge of the minor’s presence. This reading is bolstered by the more expansive B lack’s definition

of “child abuse,” which would clearly cover a violation of Texas Penal Code § 21.11(a)(2): “Any form of cruelty to

a child’s phy sical, moral or mental well-being.” Id. at 239.

-6- Z avala argues that the phrase “sexual abuse” means something more limit ed than its

constituent parts suggests; i.e.

, that “sexual abuse” requires more than just s o me kind of “abuse”

which is “sexual” in nature. 5 We conclude that any narrower definition of the phrase lacks support

in reason or in the structure of § 1101(a)(43).

Zavala attem

pts to limit the phrase “sexual abuse o f a minor” to abuse involving physical

contact. Admittedly, in most cases, abuse involving physical contact will be more severe than abuse

which involves no physical contact. However, reading “sexual abuse” as limited to abuse involving

physical contact would exclude some clear acts of sexual abuse while including other arguably less

abusive acts. A distinction that treats a stranger’s brief groping of a child in a public sho wer as

qualitatively more serious than the conduct of an adult who verbally forces a child to watch him

repeatedly engage in sex acts is unjustifiable. Both acts are clearly forms of “sexual abuse” as that

phrase is commonly understood. S ee Baron-Medina

, 187 F.3d at 1147 (“The use of young children

for the gratification of sexual desires constitutes an abuse.”); cf. Arthur J. Lurigio, et al.

, Child Sexual

Abuse: Its Causes, Consequences, and Implications for Probation Practice

, 59 F ED

. P ROBATION

69, 69 (1995) (“Child sexual abuse is sexual behavior between children and adults with or without

coercion or force.”).6 Other efforts to provide a narrower definition of “sexual abuse” suffer similar problems. A definition

limited to repeated contact would exclude, without good reason, single egregious acts of abuse which are clearly “sexual

abuse.” A definition limited (as is the case with the B lack’s Law Dictionary definition discussed above) by the

relationship between the child and adult would lead to arbitrary distinctions punishing egregious crimes committed

by acquaintances but not by strangers.

7 Zavala might argue that grouping “sexual abuse of a minor” with the very serious offenses of murder

and rape indicates an intent to punish only comparably severe acts of sexual abuse. This argument would find no

support in the rest of the statute, which includes numerous offenses within the definition of an “aggravated felony”

which, while serious, are less severe than murder and rape. Cf., e.g.

, Lopez-Elias

, 209 F.3d at 792-93 (holding that

burglary of a vehicle is an aggravated felony); Ruiz-Romero v. Reno , 205 F.3d 837, 840 (5 th Cir. 2000) (concluding

that illegally transporting aliens within the United States is an aggravated felony, even though the defendant never

crossed the border); United States v. Delgado-Enriquez , 188 F.3d 592, 595 (5 th Cir. 1999) (concluding that criminal

trespass is an aggravated felony); United States v. Santana-Castellano

, 74 F.3d 593, 595 (5 th Cir. 1996) (noting that

the defendant’s prior conviction for importing 70 pounds of marijuana was an aggravated felony ).

-7- Additionally, in many acts of sexual abuse invo lving physical contact, the psychological harm

the child suffers equals or outweighs any physical injury. C f. Lurigio, 59 F ED

. P ROBATION at 70-71

(discussing studies detailing the psychological effects of child sexual abu se). The act is “abusive”

because of

t he psychological harm inflicted irrespective of the presence of physical injury. Since

psychological harm can occur without physical contact, a distinction based only on physical contact

would miss the essential nature of “sexual abuse.” 6

More importantly, the structure of § 1101(a)(43) counsels against applying a narrow reading

of the phrase. Co ngress used words—“sexual abuse of a minor”—which lack legal specificity,

arguing against a technical legal meaning of the phrase. Congress grouped these words wi th the

words “murder” and “rape,” 7 both generic terms which are traditionally defined under varied state

rather than specific federal law. S ee Ba ron-Medina , 187 F.3d at 1146 (rejecting an attempt to

incorporate a limit

ed definition of “sexual abuse of a minor” into § 1101(a)(43)(A) from another part

of the United States Code, in part for this reason).

Additionally, Congres s did not expressly limit the meaning of “sexual abuse of a minor” in8 Zavala specifically urges us to adopt the definition of “sexual abuse of a minor” contained in 18

U.S.C. § 2243, which creates a federal offense of “sexual abuse of a minor or ward” and which premises that offense

on physical contact. S ee 18 U.S.C. § 2243(a) (requiring a knowing “sexual act”); id. § 2246(2) (defining “sexual act”

in terms of “co ntact,” “penetration,” or “intentional touching”). Given that “Congress must be presumed to have

knowledge of its previous legislation when making new laws,” Garc ia v. United States , 88 F.3d 318, 334 (5 t h Cir.

1996) (Garza, J., concurring), and therefore must be presumed to have knowledge of § 2243, its failure to expressly

reference this section when it did reference other sections suggests an intent to not incorporate § 2243's definition of

sexual abuse into § 1101(a)(43)(A).

This conclusion is not unreasonable in light of the good reasons Congress might have had for adopting

different definitions of “sexual abuse of a minor” in § 1101(a)(43)(A) and § 2243. The latter section creates a

substantive federal offense, while the former attaches consequences, in the immigration context, to offenses already

committed. S ee, e.g.

, 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time

after admission is deportable.”); 8 U.S.C. § 1326. Congress could reasonably have determined that a narrow definition

of the phrase “sexual ab use of a minor” was appropriate in creating a new substantive offense, whereas a more

expansive definition was appropriate in determining what future consequences should attach to a previously-committed

state or federal offense.

Additionally, “sexual abuse” is defined in broader ways in another part of the United States Code. In 18

U

. S.C. § 3509, Congress defined sexual abuse as “includ[ing] the employment, use, persuasion, inducement,

enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the

rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children

. . . .” This

definition would seem ingly cover an offense under Texas Penal Code § 21.11(a)(2), as this offense involves the

“employment [and] use

. . . of a child to

. . . assist another person to engage in[] sexually explicit conduct.” 18 U.S.C.

§ 3509(a)(9). Indeed, the Board of Immigration Appeals recently looked to this statute to determine that a §

21.11(a)(2) offense is an aggravated felony under § 1101(a)(43)(A). S ee In re Rodriguez-Rodriguez

, Interim Decision

(BIA) 341 (BIA 1999). Zavala offers no reason why, if we were to turn to another part of the United States Code for

a definition of the phrase “sexual abuse of a minor,” we would turn to § 2243 instead of the more broadly-worded §

3509.

-8- ways it employed in other parts of § 1101(a)(43). Specifically, Congress did not define “sexual abuse

of a minor” by expressly referencing other provisions of the United States Code, as it did in several

o ther parts of § 1101(a)(43). 8 S ee, e.g.

, 8 U.S.C. § 1101 (a)(43)(B) (“[I]llicit trafficking in a

c o nt ro lled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as

defined in section 942(c) of Title 18)

. . . .”); id. § 1101(a)(43)(F) (“[A] crime of violence (as defined

in section 16 o f Tit le 18, but not including a purely political offense) for which the term of

imprisonment at [ sic ] least one year . . . .”); i d. § 1101(a)(43)(P) (“[A]n offense (i) which either is

falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation

of section 1543 of Title 18, or is described in section 1546(a) of such title

. . . .”). Nor did Congress

narrow the definition of “sexual abuse of a minor” by requiring a minimum sentence length, thereby9 We note that the Eighth Circuit recently looked to 18 U.S.C. § 2243 to give content to Sentencing

Guideline § 2G2.2(b)(4), which creates an enhancement for a child pornography trafficker who previously engaged

in “sexual abuse or exploitation of a minor.” See United States v. Pharis , 176 F.3d 434, 436 (8 th Cir. 1999). Doing

this, the Eighth Circuit held that a trafficker’s prior convictions for obscene phone calls and exposure could not be used

to enhance his sentence because they did not involve “sexual abuse or e xploitation of a minor.” S ee id. at 436-37.

Zavala argues that this case favors his position because it limited the definition of sexual abuse to conduct involving

“physical sexual contact.” Id.

Pharis does not apply here. Section 2G2.2 contains a detailed definition of “sexual abuse or exploitation.”

USSG § 2G2.2 comment. (n.1). The Eighth Circuit interpreted this definition narrowly after finding that it tracked

various statutory titles in 18 U.S.C. §§ 2241-46, 2251. S ee Pharis

, 176 F.3d at 436. As noted above, even if we were

persuaded to follow Pharis

, we are not persuaded that Congress intended to adopt § 2243's definition of “sexual abuse

of a minor” in § 1101(a)(43)(A).

-9- ensuring the offense was of a sufficient severi ty. S ee

, e.g., 8 U.S.C. § 1101(a)(43)(G) (“[A] theft

offense (including receipt of stolen property ) or burglary offense for which the term of imprisonment

at [ sic ] least one year

. . . .”); id. § 1101(a)(43)(S) (“[A]n offense relating to obstruction of justice,

perjury or subordination of perjury, or bribery of a witness, for which the term of imprisonment is at

least one year .

. . .”). Congress’s decision to eschew limits like these in § 1101(a)(43)(A) strongly

suggests an intent to give a broad meaning to “sexual abuse of a minor.” C f. Gozlon-Peretz v. United

States , 498 U.S. 395, 404, 111 S. Ct. 840, 112 L. Ed. 2d 919 (1991) (“[W]here Congress includes

particular language in one section of a statu t e but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in th e disparate inclusion or

exclusion.”) (quotati ons omitted and alteration in original); United States v. Preston

, 209 F.3d 783,

784 (5 th Cir. 2000) (holdin g that the absence of an effective date for certain parts of an Act, when

Congress had expressly stated an effective date for other parts o f t he Act, indicates that the

unspecified portions of the Act became effective on passage). 9

In sum, we conclude that because a violation of Texas Penal Code § 21.11(a)(2) is “sexual

abuse o f a minor,” the district court properly enhanced Zavala’s sentence based on his prior10 We note that, although this is not necessary to our disposition, any harshness that our holding might

give rise to in future cases is obviated by the district court’s discretion to depart downward if it finds that the aggravated

felony is not sufficiently severe. S ee USSG § 2L1.2 comment. (n.5). This discretion will allow district courts to effect

Congress’s intent to punish harshly offende r s who previously sexually abused minors while allowing the courts to

depart in rare circumstances where the full aggravated felony enhancement is not warranted by the prior offense.

11 Because we find that the phrase “sexual abuse of a minor” is not ambiguous, we reject Zavala’s

argument that we should read the phrase narrowly under the rule of lenity. This rule applies only when “a reasonable

doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and

motivating policies of the statute.” M oskal v. United States

, 498 U.S. 103, 108, 111 S. Ct. 461, 112 L. Ed. 2d 449

(1990) (internal quotations omitted). We conclude here that § 1101(a)(43)(A) is not ambiguous. “Where Congress

has manifested its intention, we may not manufacture ambiguity in order to defeat that intent.” B ifulco v. United

States , 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980).

-10- convictions. 10 This conclusion is based on the clear language of § 1101(a)(43)(A), the nature of a

§ 21.11(a)(2) offense, and the lack of authority supporting a contrary view. 11 This conclusion also

finds support in the decisions of the only other tribunals which appear to have addressed this question.

See Baron-Medina

, 187 F.3d at 1146; In re Rodriguez-Rodriguez

, Interim Decision (BIA) 3411 (BIA

1999). In B aron-Medina

, the Ninth Circuit was faced with the question of whether a prior conviction

under California’s statute punishing lewd acts against children was “sexu al abuse o f a minor” and

t herefore an aggravated felony . The court noted that, although the statute required some kind of

physical touching, California courts had interpreted the statut e t o cover a defendant’s verbal

inducement of a child to touch him or herself or to cover “innocuous touching, innocently and warmly

received, . . . if effected with lewd intent.” 187 F.3d at 1147. Stating broadly that “[t]he use o f

young chi ldren for the gratification of sexual desires constitutes an abuse,” the court held that the

prior conviction was an aggravated felony. I d. Similarly, in R odriguez-Rodriguez

, the BIA addressed

the exact issue presented here, determining (over two dissents) that a violation of Texas Penal Code

§ 21.11(a)(2) is an aggravated felony. See Rodriguez-Rodriguez , Interim Decision (BIA) 3411.

III-11-

We conclude that the district c o urt properly enhanced Zavala’s sentence under Sentencing

Guidelines § 2L1.2(b)(1)(A). Accordingly, we AFFIRM.