United States v. Alejandro Zuniga-Galeana , 799 F.3d 801 ( 2015 )

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, Cir-
cuit Judges.
PER CURIAM. Defendant-Appellant, Alejandro Zuniga-
Galeana (“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 enu-
merated under the guideline, than was held by the district
court, so his 1991 conviction should not have been consid-
ered a crime of violence. For the reasons that follow, we af-
firm.
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, osten-
sibly to help care for his minor children. He apparently re-
sided 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 af-
ter 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 proba-
tion 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 con-
tends that we may not reach the merits of Zuniga’s argu-
ment 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 appel-
late review. See United States v. Olano, 507 U.S. 725, 733–34
(1993). A litigant waives an argument only through a know-
ing 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 ar-
gument is merely forfeited, and not waived. The govern-
ment offers two potential strategic explanations for Zuniga’s
failure to object to the 16-level increase, but neither with-
stands scrutiny. First, the government notes that two deci-
sions 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 cate-
gorically rejected application of the 16-level increase for con-
victions 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 rea-
son for failing even to preserve the issue for appellate re-
view. 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 high-
light the facts underlying Zuniga’s 1991 conviction when ar-
guing that it overstated his criminal history.
Far from an instance of waiver, this case is similar to But-
ler, 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 disa-
greement 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 calcula-
tion was the result of an oversight. Id. at 388. The same is
true here. Counsel argued to the district court that, in deter-
mining the sentence, the 16-level increase should be mitigat-
ed by the actual details of his past criminal history. Further-
more, as in Butler, and as we have already observed, we
cannot conceive of any strategic reason for bypassing a di-
rect objection to the 16-level increase, and instead arguing
only in mitigation. We will therefore review Zuniga’s argu-
ment for plain error.
Zuniga argues that the district court’s application of the
16-level increase for his 1991 conviction was plainly errone-
ous because 720 ILCS 5/11–1.60(d), the Illinois statute for ag-
gravated criminal sexual abuse, is categorically overbroad. A
state offense is categorically overbroad if the crime is de-
fined 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 enumer-
ated 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 deter-
mine 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 narrow-
er than, the elements of the generic crime. Descamps, 133 S.
Ct. at 2283. If a state law sweeps more broadly than the ge-
neric crime, the categorical approach provides that a convic-
tion 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 al-
ternative sets of elements for a crime. In that situation only,
the categorical approach is modified, and a court is permit-
ted 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 un-
der 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” fed-
eral 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 con-
tends 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 govern-
ment 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 mean-
ing” 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). Ad-
dressing 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 Na-
tionality Act. See id. cmt. n.1 (2000). The INA defines “aggra-
vated 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 in-
crease 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 essen-
tially argues that these amendments effectively limited Mar-
tinez-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 de-
fined “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 defini-
tion of “sexual abuse of a minor” adopted by the Board of
No. 14-1994 9
Immigration Appeals (the agency responsible for adminis-
tering 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 Martinez-
Carrillo, 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 ambigu-
ous.”).
Unable to distinguish Martinez-Carrillo, Zuniga lastly ar-
gues 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 con-
cluded that the phrase is susceptible to multiple interpreta-
tions. 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) (conclud-
ing that Tennessee’s statutory rape law is overbroad). What
is more, thirty-three states, the District of Columbia, the fed-
eral 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 pur-
poses, 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 con-
sent at 17 or 18. See Rodriguez, 711 F.3d at 567 (Owen, J., con-
curring); 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 Illi-
nois], 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 re-
peatedly 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 Zun-
iga 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.