United States v. Jose Javier Gomez-Colin ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10625
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00080-WKW-SRW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOSE JAVIER GOMEZ-COLIN,
a.k.a. Javier Colin,
a.k.a. Jose Javier Gomez,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
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(August 6, 2012)
Before DUBINA, Chief Judge, BARKETT and MARCUS, Circuit Judges.
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PER CURIAM:
Appellant Jose Gomez-Colin appeals his 57 month sentence, that the district
court imposed at the bottom of the applicable guideline range, after he pled guilty
to one count of reentry of a deported alien, in violation of 8 U.S.C. § 1326(a),
(b)(2). Gomez argues that the district court erred in determining that his prior
conviction under O.C.G.A. § 16-6-4(a) for “child molestation ” qualified as
“sexual abuse of a minor” and therefore, was a “crime of violence” within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He contends that, using the categorical
approach, the elements of his prior child molestation conviction cover conduct
broader than this court’s definition of sexual abuse of a minor, as explained in
United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001).
In considering whether a 16-level enhancement was proper based on a
previous deportation following a conviction for a “crime of violence,” we review
de novo whether the prior conviction qualifies under the Guidelines as a crime of
violence under § 2L1.2(b)(1)(A)(ii). United States v. Palomino Garcia, 606 F.3d
1317, 1326 (11th Cir. 2010).
A 16-level enhancement is imposed under the Guidelines if the defendant
has been previously deported following a felony conviction for “a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined by the
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Guidelines as an offense that includes “sexual abuse of a minor . . . or 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)).
Guidelines commentary “that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S.
36, 38, 113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). The Guidelines were
amended in 2003 to clarify that a “crime of violence” incorporated specific
enumerated offenses, including “sexual abuse of a minor,” “regardless of whether
the prior offense expressly has as an element the use, attempted use, or threatened
use of physical violence against the person of another.” U.S.S.G. App. C, Amend.
658 (2003).
When determining whether a prior conviction qualifies as an enumerated
offense, we use “a categorical approach to determine whether the convicted crime
falls within the generic, federal definition of the enumerated offense.” United
States v. Ramirez-Garcia, 646 F.3d 778, 782 (11th Cir.) cert. denied 132 S. Ct.
595 (2011). Using the categorical approach, “we consider the offense as defined
by the law, rather than considering the facts of the specific violation.” United
States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008). Thus, in analyzing the
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nature and risk of the offense, we consider the ordinary case to determine how the
crime is usually committed, and do not inquire into the specific conduct of the
particular offender. United States v. Proch, 637 F.3d 1262, 1266 (11th Cir. 2011).
“If the scope of acts criminalized by the statutory definition of the prior offense is
broader than the generic definition of the enumerated offense, then, under the
categorical approach, the prior conviction does not fall within the enumerated
offense.” Ramirez-Garcia, 646 F.3d at 782-83.
Our generic, federal definition of “sexual abuse of a minor” was first stated
in Padilla-Reyes, which addressed whether a defendant’s previous conviction in
Florida for “lewd assault” was an “aggravated felony” which qualified for the 16-
level enhancement. 247 F.3d at 1162. We interpreted “sexual abuse of a minor” to
mean “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor
for a purpose associated with sexual gratification.” Id. at 1163. We recognized
that violations of the Florida “lewd assault” statute might not involve any physical
contact with the victim, but concluded that all possible violations involve the
misuse or maltreatment of a child for sexual gratification and, thus, constitute
“sexual abuse of a minor.” Id.Our recent decision in United States v. Ramiz-Garcia reaffirmed the
definition of “sexual abuse of a minor” set forth in Padilla-Reyes, 646 F.3d at 783-
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84. At issue was a North Carolina statute which stated:
A person is 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 either:
(1)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;
or
(2) 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.
N.C. Gen. Stat. § 14–202.1. We noted that the Padilla-Reyes definition “focused
on the perpetrator’s intent in committing the abuse, to seek libidinal gratification.”
Ramiz-Garcia, 646 F.3d at 782 (internal quotation marks and alteration omitted).
Because “misuse” or “maltreatment” are expansive words that include many
different acts, the definition is not limited “to instances where the perpetrator is
present in front of the minor, where the minor is aware of the abuse, or where the
perpetrator makes contact with the minor.” Id. at 784. Accordingly, we found that
the Padilla-Reyes definition of “sexual abuse of a minor” was “at least as broad
and inclusive as § 14–202.1.” Id. at 785.
Georgia’s child molestation statute provides:
A person commits the offense of child molestation when such person:
(1) Does any immoral or indecent act to or in the presence of or
with any child under the age of 16 years with the intent to arouse or
satisfy the sexual desires of either the child or the person.
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O.C.G.A. § 16-6-4(a)(1).
The Georgia child molestation statute tracks the language of the Padilla-
Reyes definition of sexual abuse of a minor. Like the Padilla-Reyes definition,
§ 16-6-4(a) focuses on the intent of the perpetrator to achieve sexual gratification.
The “misuse or maltreatment” requirement of Padilla-Reyes is expansive and is
contemplated by the “immoral or indecent act” language of § 16-6-4(a). Moreover,
this language is almost exactly the same as the “immoral, improper, or indecent
liberties” language of the North Carolina statute that we held was no broader than
the Padilla-Reyes definition. Gomez has failed to point to any Georgia cases
involving facts that do not fit within the contours of the broad Padilla-Reyes
definition. Accordingly, we conclude from the record that the district court did not
err in finding that Gomez’s previous conviction for child molestation constituted
“sexual abuse of a minor” and, therefore, was a “crime of violence” within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
For the aforementioned reasons, we affirm Gomez’s sentence.
AFFIRMED.
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