United States v. Avarez-Gutierrez ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10241
Plaintiff-Appellee,
v.  D.C. No.
CR-03-02064-JMR
DANIEL ALVAREZ-GUTIERREZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
November 3, 2004—San Francisco, California
Filed January 14, 2005
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Thompson;
Concurrence by Judge Reinhardt;
Dissent by Judge Berzon
705
708 UNITED STATES v. ALVAREZ-GUTIERREZ
COUNSEL
John D. Kaufmann, Tucson, Arizona, for the defendant-
appellant.
Bruce M. Ferg, Assistant United States Attorney, Tucson,
Arizona, for the plaintiff-appellee.
OPINION
THOMPSON, Circuit Judge:
The defendant-appellant Daniel Alvarez-Gutierrez pleaded
guilty to illegal entry after deportation in violation of 8 U.S.C.
§ 1326 (2003). In imposing sentence, the district court
enhanced Alvarez-Gutierrez’s base offense level by eight
levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2003), which
provides for such an increase when a defendant was previ-
ously deported after conviction of an “aggravated felony.”
Alvarez-Gutierrez had been previously deported after con-
viction of statutory sexual seduction, a gross misdemeanor
under Nevada state law. The district court determined that this
misdemeanor conviction constituted “sexual abuse of a
minor” for purposes of applying the Sentencing Guidelines,
and thus was a conviction of an “aggravated felony” under 8
U.S.C. § 1101(a)(43)(A) (2003).
The district court also classified Alvarez-Gutierrez’s state
misdemeanor offense as an “aggravated felony” under 8
U.S.C. § 1101(a)(43)(F) (2003), which defines “aggravated
felony” as “a crime of violence . . . for which the term of
imprisonment [is] at least one year.”
Alvarez-Gutierrez appeals his sentence, contending that the
district court wrongly enhanced his base offense level by clas-
UNITED STATES v. ALVAREZ-GUTIERREZ 709
sifying his state misdemeanor offense as an “aggravated felo-
ny.” We have jurisdiction under 28 U.S.C. § 1291 and we
affirm. Because we affirm the district court’s enhancement by
its reliance upon the definition of “aggravated felony” in
§ 1101(a)(43)(A), we do not decide whether the enhancement
was also appropriate under § 1101(a)(43)(F).
I
Alvarez-Gutierrez is a citizen of Mexico. In April 2002, at
the age of 19, while residing in Reno, Nevada, he was charged
with statutory sexual seduction, a “gross misdemeanor” under
Nevada law, for having had sexual intercourse with a 14-year-
old girl. Nev. Rev. Stat. §§ 200.364, 368 (2002). That offense
is punishable by a sentence of up to one year. Id. at § 193.140
(2002). Alvarez-Gutierrez pleaded guilty and was sentenced
to 12 months in jail. He was deported to Mexico on Novem-
ber 15, 2002.
Alvarez-Gutierrez attempted to return to this country and
was arrested on September 24, 2003, near Sonoita, Arizona.
He was charged with illegal reentry after deportation, in viola-
tion of 8 U.S.C. § 1326. He pleaded guilty and was sentenced
by the district court to 16 months incarceration to be followed
by 36 months of supervised release. His sentence was calcu-
lated using an eight-level enhancement, because he had a
prior conviction for an “aggravated felony.” See U.S.S.G.
§ 2L1.2(b)(1)(C). The prior “aggravated felony” was the
Nevada misdemeanor offense.
II
[1] The applicable Guideline commentary provides: “For
purposes of [U.S.S.G. § 2L1.2](b)(1)(C), ‘aggravated felony’
has the meaning given that term in . . . 8 U.S.C.
§ 1101(a)(43).” U.S.S.G. § 2L1.2(b)(1)(C), cmt n. 3(A).
Under 8 U.S.C. 1101(a)(43)(A), the term “aggravated felony”
is defined as including “sexual abuse of a minor.”
710 UNITED STATES v. ALVAREZ-GUTIERREZ
[2] The first issue we confront is whether, for Sentencing
Guidelines purposes, Alvarez-Gutierrez’s Nevada conviction
for statutory sexual seduction constitutes a conviction for
“sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A).
Our resolution of this issue is governed by our decision in
United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir.
2003). In Pereira-Salmeron we held that a state felony con-
viction for “carnally know[ing] . . . a child . . . under fifteen
years of age” constitutes a conviction of “sexual abuse of a
minor” for purposes of applying the Guidelines. Id. at 1155
(analyzing Va. Code § 18.2-63). We stated that “the conduct
covered by the Virginia law ‘indisputably falls within the
common, everyday meanings of the words ‘sexual’ and
‘minor.’ . . . The use of young children for the gratification
of sexual desires constitutes an abuse.’ ” Id. at 1155 (quoting
United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.
1999), cert. denied, 531 U.S. 1167 (2001)).
[3] The Nevada sexual seduction statute under which
Alvarez-Gutierrez was convicted criminalizes sexual acts by
a person 18 years of age or older with a person under the age
of 16 years. Nev. Rev. Stat. § 200.364. Applying Pereira-
Salmeron, we conclude that, for federal sentencing purposes,
Alvarez-Gutierrez’s conviction under Nevada state law for
statutory sexual seduction constitutes a conviction for “sexual
abuse of a minor” as that term is used in 8 U.S.C.
§ 1101(a)(43)(A).
III
[4] Alvarez-Gutierrez’s state law conviction, however, was
not a conviction of a felony as that term is traditionally under-
stood. See Black’s Law Dictionary 555 (5th ed. 1979); United
States v. Gonzalez-Tamariz, 310 F.3d 1168, 1172 (9th Cir.
2002) (Berzon, J., dissenting) (“long-established usage” of the
term “felony” means “crimes as to which the maximum sen-
tence is more than one year”). Alvarez-Gutierrez’s conviction
was of a gross misdemeanor, for which the punishment under
UNITED STATES v. ALVAREZ-GUTIERREZ 711
Nevada law is imprisonment for up to one year. Nev. Rev.
Stat. § 193.140. The issue thus becomes whether a crime,
which is not a traditional felony and which is classified as a
misdemeanor under state law, may nonetheless be classified
as an aggravated felony under 8 U.S.C. § 1101(a)(43).
[5] In Gonzalez-Tamariz we analyzed this issue under 8
U.S.C. § 1101(a)(43)(F)1 in relation to a state misdemeanor
conviction of a crime of violence (battery causing substantial
bodily harm) for which the defendant was sentenced to
imprisonment for one year. Gonzalez-Tamariz, 310 F.3d at
1170-71. We held that “a crime may be classified as an
‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)[(F)] with-
out regard to whether, under state law, the crime is labeled a
felony or a misdemeanor,” when the crime is a crime of vio-
lence and the sentence imposed by the state court is one year.
Gonzalez-Tamariz, 310 F.3d at 1171.
[6] Here, the district court classified Alvarez-Gutierrez’s
prior conviction as a conviction of an aggravated felony under
8 U.S.C. § 1101(a)(43)(A),2 which makes no reference to any
term of imprisonment. Compare 8 U.S.C. § 1101(a)(43)(A),
with § 1101(a)(43)(F). That classification was correct. Section
1101(a)(43) provides that “The term ‘aggravated felony’
means—” and is followed by a list of offenses in subsections
(A) through (U). Subsection (A) defines an “aggravated felo-
ny” as “murder, rape, or sexual abuse of a minor.” Unlike
subsection (A), a number of the subsections that follow it
define “aggravated felony” by including a reference to the
1
8 U.S.C. § 1143(a)(43)(F) provides:
“(43) The term ‘aggravated felony’ means . . .
(F) a crime of violence . . . for which the term of imprison-
ment [is] at least one year;”.
2
8 U.S.C. § 1143(a)(43)(A) provides:
“(43) The term ‘aggravated felony’ means . . .
(A) murder, rape, or sexual abuse of a minor;”.
712 UNITED STATES v. ALVAREZ-GUTIERREZ
term of imprisonment. See 8 U.S.C. §§ 1101(a)(43)(F), (G),
(R), and (S) (“term of imprisonment is at least one year”);
§ 1101(a)(43)(J) (“one year imprisonment or more”).
[7] The absence of any qualifying language with reference
to the particular offenses listed in § 1101(a)(43)(A) is signifi-
cant. Ordinarily, “[w]here Congress includes particular lan-
guage in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983).
Thus, if Congress intended for the offenses listed in
§ 1101(a)(43)(A), one of which is sexual abuse of a minor, to
include only offenses carrying a particular term of imprison-
ment, it would have said so expressly as it did in later subsec-
tions of the same section; it did not. Moreover, by placing the
term “aggravated felony” in 8 U.S.C. § 1101(a)(43) within
quotation marks immediately followed by the word “means,”
Congress made “aggravated felony” a term of art, defined by
the subsections following it.
[8] “As a rule, ‘[a] definition which declares what a term
‘means’ . . . excludes any meaning that is not stated.’ ”
Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979) (quot-
ing 2A C. Sands, Statutes and Statutory Construction § 47.07
(4th ed. Supp. 1978), overruled on other grounds by Webster
v. Reproductive Health Servs., 492 U.S. 490 (1989). There is
nothing in 8 U.S.C. § 1101(a)(43)(A) that requires the
offenses listed in that subsection to be felonies as that term is
traditionally understood, or that requires those offenses to be
punishable by any particular term of imprisonment. Because
Congress chose to define “aggravated felony” in this manner,
it is irrelevant that the state offense of which Alvarez-
Gutierrez was convicted is not a traditional felony or that it
is classified under state law as a misdemeanor. Under the
authority of Pereira-Salmeron, 337 F.3d at 1155, Alvarez-
Gutierrez’s state conviction for statutory sexual seduction is
a conviction for “sexual abuse of a minor” for purposes of
UNITED STATES v. ALVAREZ-GUTIERREZ 713
federal sentencing law; and “sexual abuse of a minor” is an
“aggravated felony,” as that term of art is defined by 8 U.S.C.
§ 1101(a)(43)(A). We are “not at liberty to look beyond [this]
statutory definition.” United States v. Smith, 155 F.3d 1051,
1057 (9th Cir. 1998), cert. denied, 525 U.S. 1071 (1999).
IV
[9] We conclude that the district court did not err by classi-
fying Alvarez-Gutierrez’s state misdemeanor conviction as a
conviction of an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(A), and enhancing his base offense level by
eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C).
AFFIRMED.
REINHARDT, Circuit Judge, concurring:
I am compelled by Gonzalez-Tamariz to join in Judge
Thompson’s opinion for the court. If “aggravated felony”
includes misdemeanors for the purposes of 8 U.S.C.
§ 1101(a)(43)(G) as it does under the law of our circuit and
others, it certainly includes misdemeanors for the purposes of
8 U.S.C. § 1101(a)(43)(A). Indeed it necessarily includes mis-
demeanors for the purposes of all the sub-sections of 8 U.S.C.
§ 1101(a)(43).
Judge Berzon’s dissent in Gonzalez-Tamariz makes sense
to me: A felony is a felony, and a misdemeanor is not. That
is elementary. We are now, however, as Judge Berzon
acknowledges, past that point. For purposes of our often inco-
herent and senseless federal sentencing policies, a “felony”
can include a “misdemeanor.” Worse, an egregious felony,
i.e. an “aggravated felony,” can include a misdemeanor. One
would think that there would be some limit to the abuse of the
English language by lawmakers. Apparently not. Still, we
714 UNITED STATES v. ALVAREZ-GUTIERREZ
must follow the law, and our circuit is in line with all the oth-
ers when we hold that a misdemeanor can constitute an aggra-
vated felony for the purposes of 8 U.S.C. § 1101(a)(43).
To hold, as Judge Berzon would, that because, under the
statute, a misdemeanor theft offense must result in an actual
sentence of one year in order to constitute an aggravated fel-
ony, a more serious type of offense, such as “murder, rape, or
sexual abuse of a minor” must also result in a sentence of that
length in order to be so classified seems to me unsupportable,
given that the statute contains a one-year-minimum actual
sentence provision for the lesser offense but imposes no such
requirement in the case of the greater crime. We simply can-
not ignore the fact that under 8 U.S.C. § 1101(a)(43) the
requirement that the actual sentence imposed be at least one
year is generally contained in the sub-sections applicable to
the less serious types of offenses and that no such additional
condition is ordinarily contained in the sub-sections applica-
ble to the more serious offenses. While we may not agree that
all the sub-sections without the additional requirement are
indeed more serious than all those that contain it, it is evident
that most are, and that as to those on which we might dis-
agree, our lawmakers have made a judgment as to seriousness
that is within the area of their legislative authority.
In short, if we accept Gonzalez-Tamariz, as we must, the
result here is inevitable. There is simply no way to say, as
Judge Berzon would have us do, that a person convicted of 8
U.S.C. § 1101(a)(43)(A) must receive a sentence of more than
a year before his offense will be classified as an aggravated
felony while a person who commits the less serious type of
offense covered by 8 U.S.C. § 1101(a)(43)(G) will be deemed
to have committed such a felony even though his sentence is
for a lesser period. Such a construction would compound the
violence we have already done to the English language in this
statute by taking a limitation designed to exclude from the
aggravated felony classification certain less serious misde-
meanor offenses when a lesser punishment is imposed, and to
UNITED STATES v. ALVAREZ-GUTIERREZ 715
treat that limiting language as having precisely the opposite
effect: requiring minor theft offenses to be classified as aggra-
vated felonies when sentences are imposed that are shorter
than the minimum sentences that would warrant felony classi-
fication in the case of far more serious types of offenses. If,
as Judge Berzon concludes, Leocal does not permit us to
overrule Gonzalez-Tamariz, it does not permit us to treat other
sub-sections of the statute in a manner that would be wholly
inconsistent with that which we held in that case.
Although I find Judge Berzon’s historical analysis interest-
ing, the fact remains that Congress deemed certain offenses to
be sufficiently serious that they are classified as “aggravated
felonies” regardless of the sentences imposed in particular
cases. Other lesser offenses, Congress provided, would be so
classified only in cases in which the defendant received a sen-
tence of at least a year. Congress, wisely or not, placed sexual
abuse of a minor in the same category as murder and rape, a
category of offenses which ipso facto constitute aggravated
felonies. It is true that persons who commit such offenses will
generally not be sentenced to a term of confinement of a year
or less. When they are, however, the nature of the crime
requires, in Congress’s view, that the offense remain an
aggravated felony regardless.
I simply cannot accept the alternative Judge Berzon con-
structs: that in the case of the more serious crimes Congress
intended that offenses would count only if the sentence
imposed were for a year and a day, but with respect to the
lesser crimes the offense would count if the sentence were for
one day less, but not two. I cannot imagine why Congress
would have wanted to treat as aggravated felonies lesser
offenses that result in sentences of less than a year and a day
but to exclude from that category more serious crimes for
which the offender receives that identical sentence. Nor can
I imagine why Congress would have prescribed only a one
day difference in the length of sentence necessary for the
inclusion of less serious crimes, even if for some odd reason
716 UNITED STATES v. ALVAREZ-GUTIERREZ
it wished to include such offenses when they result in lesser
punishment than is required for the inclusion of more serious
offenses.
Judge Thompson’s opinion for the court dutifully applies
the law as it has been construed in this and other circuits. I am
required to join him in doing so.
BERZON, Circuit Judge, dissenting:
In Leocal v. Ashcroft, 125 S. Ct. 377 (2004), handed down
six days after argument in this case, the Supreme Court con-
sidered the meaning of 18 U.S.C. § 16, which reads as fol-
lows:
The term “crime of violence” means—
(a) an offense that has as an element the
use, attempted use, or threatened use
of physical force against the person or
property of another, or
(b) any other offense that is a felony and
that, by its nature, involves a substan-
tial risk that physical force against the
person or property of another may be
used in the course of committing the
offense.
The Court held that, in ascertaining whether driving under the
influence (DUI) is a “crime of violence” as defined by 18
U.S.C. § 16, “we cannot forget that we ultimately are deter-
mining the meaning of the term ‘crime of violence.’ ” Id. at
383. Leocal thus underscores that courts ordinarily should
interpret statutory language defining what a certain term
“means” by paying some attention to the term being defined.
UNITED STATES v. ALVAREZ-GUTIERREZ 717
Prior to Leocal, this court examined whether a misdemea-
nor — that is, a crime for which the maximum sentence is one
year or less — can be an “aggravated felony” for purposes of
8 U.S.C. § 1101(a)(43). The structure of § 1101(a)(43) is pre-
cisely the same as 18 U.S.C. § 16: it specifies a term describ-
ing certain crimes — here, “aggravated felony” — and then
states what that term “means.” The term being defined, in
plain language, describes a “felony” that is “aggravated.”
“Felony” has an established legal meaning, namely, a crime
for which one can be imprisoned for more than one year. See,
e.g., 18 U.S.C. § 3559(a); U.S.S.G. § 2L1.2, cmt. n.2; see also
United States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999)
(tracing the more-than one-year line back to 1865).1 When
Congress first codified the term “aggravated felony” in 1988,2
then, there was no need for it to define “felony”; “aggravated”
is what needed to be given content.
Nonetheless, this court, like all others that have addressed
the question, has concluded that, where the subsection of
§ 1101(a)(43) specifies a minimum term of imprisonment of
“at least one year,” an offense need not be a “felony” at all
to be an “aggravated felony.” See United States v. Gonzalez-
Tamariz, 310 F.3d 1168 (9th Cir.), cert. denied, 538 U.S.
1008 (2003); see also United States v. Cordoza-Estrada, 385
F.3d 56, 58 (1st Cir. 2004) (per curiam) (“We agree with the
phalanx of circuit courts that have rejected similar challenges
and held that the statutory definition of the term ‘aggravated
felony’ in § 1101(a)(43) is a term of art that includes within
1
The emphasis on a term exceeding one year has its roots in the
common-law “year-and-a-day” rubric, which we recently discussed in
Lagandaon v. Ashcroft, 383 F.3d 983, 991-92 (9th Cir. 2004).
2
See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102
Stat. 4181, 4469-70 (codified as amended at 8 U.S.C. § 1101(a)(43)). The
original definition of “aggravated felony” included only murder, drug traf-
ficking crimes as defined by 18 U.S.C. § 924(c)(2), and firearms traffick-
ing as defined by 18 U.S.C. § 921. See id.
718 UNITED STATES v. ALVAREZ-GUTIERREZ
its ambit certain misdemeanors under state law that carry a
sentence of at least one year.”).3
This reasoning, I submit, is in some tension with the later-
decided Leocal. It assumes, contrary to Leocal, that the usual
meaning of the term being defined can be no-never-mind
when determining congressional intent. Gonzalez-Tamariz,
however, is the law of the circuit. Leocal doesn’t so under-
mine Gonzalez-Tamariz as to justify a three-judge panel in
ignoring its result. See, e.g., Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc) (holding that, for a panel to
overrule an earlier precedent, “the relevant court of last resort
must have undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable”).
That is not to say, however, that we may, after Leocal, con-
tinue to extend a mode of reasoning the Supreme Court
declared improper, when interpreting sections of
§ 1101(a)(43) distinct from the one involved in Gonzalez-
Tamariz. Yet, that is precisely what the majority does today:
The majority extends the mode of statutory analysis used in
Gonzalez-Tamariz to the interpretation of the sixteen subsec-
tions of § 1101(a)(43) in which Congress has given no indica-
tion of its intent with respect to the requisite term of
imprisonment.4 In other words, the majority holds that “sexual
3
In addition to our decision in Gonzalez-Tamariz, the First Circuit cited
United States v. Pacheco, 225 F.3d 148, 154-55 (2d Cir. 2000); Graham,
169 F.3d at 792; Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); United
States v. Urias-Escobar, 281 F.3d 165, 167-68 (5th Cir. 2002); United
States v. Gonzales-Vela, 276 F.3d 763, 767-68 (6th Cir. 2001); Guerrero-
Perez v. INS, 242 F.3d 727, 734-37 (7th Cir. 2001); United States v.
Saenz-Mendoza, 287 F.3d 1011, 1014-15 (10th Cir. 2002); and United
States v. Christopher, 239 F.3d 1191, 1193-94 (11th Cir. 2001). The
Eighth Circuit has not yet ruled on the issue.
4
The majority speaks only to § 1101(a)(43)(A). The same analysis,
however, would compel a similar result for the other fifteen subsections
of § 1101(a)(43) not specifying any term of imprisonment for the con-
victed offense.
UNITED STATES v. ALVAREZ-GUTIERREZ 719
abuse of a minor” is an aggravated felony even if no prison
term, or only a very short one, can be imposed.
To suppose, as did Gonzalez-Tamariz, that Congress
adjusted the traditional meaning of the term “felony” by one
day is one thing. To suppose that Congress so misused the
English language as to define a crime as an aggravated felony
no matter what sentence is assigned to it, and without specifi-
cally addressing the requisite sentence in the pertinent subsec-
tion, is another. Such a conclusion, as manifested in the
majority’s opinion in this case and that of the Seventh Circuit
in Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001),5 can-
not be reconciled with the Supreme Court’s unanimous analy-
sis in Leocal.
I therefore respectfully dissent from Part III of the majori-
ty’s opinion and from the result that its analysis compels.
Instead, I would hold that, for a state law conviction to qualify
as an aggravated felony under § 1101(a)(43)(A), it must be a
“felony,” and therefore punishable by imprisonment for more
than one year. Alvarez-Gutierrez’s Nevada conviction clearly
is not a felony. I would therefore vacate the sentence and
remand for re-sentencing without the enhancement.
I. Ninth Circuit Precedent
Gonzalez-Tamariz concerned whether a Nevada conviction
for “battery causing substantial bodily harm,” with a maxi-
mum sentence of imprisonment for one year, constituted an
5
The BIA, in an opinion that was subsequently vacated on procedural
grounds, disagreed with the Seventh Circuit and concluded that, for an
offense to be the aggravated felony of “sexual abuse of a minor,” it must
first be a felony. See Matter of Crammond, 23 I. & N. Dec. 9 (BIA),
vacated on other grounds, 23 I. & N. Dec. 179 (BIA 2001); see also
Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2002) (denying a petition
for rehearing that was based on Crammond). The BIA has since arrived
at the diametrically opposite conclusion. See Matter of Small, 23 I. & N.
Dec. 448 (BIA 2002).
720 UNITED STATES v. ALVAREZ-GUTIERREZ
“aggravated felony” for purposes of 8 U.S.C. § 1326(b)(2).
Despite the one-year line between misdemeanors and felonies,
Gonzalez-Tamariz concluded that, under 8 U.S.C.
§ 1101(a)(43)(F), which includes as an aggravated felony “a
crime of violence . . . for which the term of imprisonment [is]
at least one year,”6 a crime for which the maximum sentence
is one year can be an aggravated felony. See 310 F.3d at
1170-71 (alteration in original).7
In contrast to the subsection at issue in Gonzalez-Tamariz,
§ 1101(a)(43)(A) defines as an aggravated felony “murder,
6
Like most of our sister circuits, we have read the word “is” into the
language of the statute. See, e.g., United States v. Corona-Sanchez, 291
F.3d 1201, 1204 n.3 (9th Cir. 2002) (en banc).
7
I dissented in Gonzalez-Tamariz, taking the view that an “aggravated
felony” must be a felony first:
Absent some absolutely clear indication that Congress is using a
word with a meaning it does not ordinarily have in the English
language or in legal discourse, we should assume the legislators
are not playing Humpty Dumpty with the dictionary. Instead, the
much more sensible conclusion is that when Congress says “X”
term means Y and Z crimes (or things or actions), what it intends
to convey is that among the crimes (or things or actions) that
could come within an ordinary meaning of X term, the ones we
mean to include are Y and Z. Judge Straub put the same point this
way:
“[I]t is quite clear that ‘aggravated felony’ defines a subset
of the broader category ‘felony.’ Common sense and stan-
dard English grammar dictate that when an adjective—such
as ‘aggravated’—modifies a noun—such as ‘felony’—the
combination of the terms delineates a subset of the noun.
One would never suggest, for example, that by adding the
adjective ‘blue’ to the noun ‘car,’ one could be attempting to
define items that are not, in the first instance, cars.”
310 F.3d at 1172 (Berzon, J., dissenting) (quoting Pacheco, 225 F.3d at
157 (Straub, J., dissenting)) (alteration in original). Though I continue to
believe that Gonzalez-Tamariz was wrongly decided, especially after Leo-
cal, it is the law of the circuit, and I am, of course, bound by it. If I
thought it controlled the outcome here, I would join the majority opinion.
UNITED STATES v. ALVAREZ-GUTIERREZ 721
rape, or sexual abuse of a minor,” with no reference to the
term of imprisonment. Therefore, unlike in Gonzalez-
Tamariz, this case raises whether an “aggravated felony” must
be a “felony” where Congress has not explicitly spoken to the
minimum length of sentence.
II. Other Circuits’ Precedent
As noted above, the other circuits have generally reached
the same result as did Gonzalez-Tamariz, holding that misde-
meanors with sentences of exactly one year may be aggra-
vated felonies where the statute so specifies. See Cordoza-
Estrada, 385 F.3d at 58 (collecting cases from every circuit
except the Eighth). Most of these decisions are limited to the
five “one-year” subsections of § 1101(a)(43), 8 U.S.C.
§ 1101(a)(43)(F), (G), (J), (R), and (S). Only three circuits,
the Sixth, Seventh and Eleventh, appear to have resolved in
the majority’s favor precisely the same question presented
here: Whether an aggravated felony, as defined by
§ 1101(a)(43)(A), includes misdemeanors carrying maximum
sentences of less than one year. See United States v.
Gonzalez-Vela, 276 F.3d 763 (6th Cir. 2001); United States v.
Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001); Guerrero-
Perez, 242 F.3d 727.
Two of the circuit opinions contain only summary reason-
ing, as I trace out in more detail below. The third, Guerrero-
Perez, can be reconciled with neither the letter nor the spirit
of Leocal. Instead, I believe the correct analysis is that of
Judge Cox, dissenting from the Eleventh Circuit’s decision in
Marin-Navarette, that
§ 1101(a)(43)(A) contains no reference, to a term of
imprisonment or otherwise, indicating that Congress
intended to include sexual abuse of a minor misde-
meanors in the category “aggravated felony.” In the
absence of such language, deciding that
722 UNITED STATES v. ALVAREZ-GUTIERREZ
§ 1101(a)(43)(A) includes misdemeanor offenses
makes the exception the rule.
244 F.3d at 1288 (Cox, J., dissenting).
A. Marin-Navarette and Gonzalez-Vela
The crux of the Eleventh Circuit’s rejection of Marin-
Navarette’s argument that his prior conviction was not for an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(A) because
it was a misdemeanor was a citation to its earlier decision in
United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001).
See Marin-Navarette, 244 F.3d at 1286-87. In Christopher,
the court had concluded that a shoplifting offense with a max-
imum sentence of one year could be an aggravated felony
under § 1101(a)(43)(G) even though it was not a “felony,”
reasoning along much the same lines as we did in Gonzalez-
Tamariz. See 239 F.3d at 1193 (“We discern a clear intent in
the statute to include as an ‘aggravated felony’ any theft
offense for which the term of imprisonment is at least one
year. Accordingly, it does not matter that Christopher’s theft
offense is one for which the term of imprisonment is at most
one year.”).
No further discussion of the obvious distinction between
§ 1101(a)(43)(G) and § 1101(a)(43)(A) was undertaken by the
Marin-Navarette majority, though Judge Cox, dissenting,
relied entirely on this difference to argue that Marin’s Wash-
ington conviction was not an “aggravated felony,” and that
the reliance on Christopher was therefore inapt. In his words,
in Christopher we discerned Congress’s clear intent
to include maximum-sentence misdemeanants in the
aggravated felon category from the language refer-
ring to the term of imprisonment. In other words,
§ 1103(a)(43)(G) is an exception to the rule that mis-
demeanors do not fit within the aggravated felony
UNITED STATES v. ALVAREZ-GUTIERREZ 723
category, an exception created by § 1103(a)(43)(G)’s
sentencing language.
Marin-Navarette, 244 F.3d at 1288 (Cox, J., dissenting) (cita-
tions and footnote omitted); see also id. at 1288 n.3 (“In the
decisions we adopted in Christopher, our sister circuits stated
this conclusion was compelled by the language in
§ 1101(a)(43)(G) describing the term of imprisonment, but,
realizing that this holding did violence to the time-honored
line between felonies and misdemeanors, implored Congress
to revisit the issue.”).
Marin-Navarette thus decided this issue without indepen-
dent analysis, simply extending Christopher to a provision of
§ 1101(a)(43) it does not comfortably cover. So too, did
Gonzalez-Vela, which relied on Guerrero-Perez and Christo-
pher to conclude that a misdemeanor could constitute the
aggravated felony of “sexual abuse of a minor” under
§ 1101(a)(43)(A). See 276 F.3d at 766-68.
B. Guerrero-Perez
More deliberate consideration of this question occurred in
the Seventh Circuit’s opinion in Guerrero-Perez. At issue in
Guerrero was a prior conviction for “criminal sexual abuse”
in violation of 720 Ill. Comp. Stat. § 5/12-15(c),8 a Class A
misdemeanor under Illinois law.
Central to the court’s analysis was its emphasis on the
importance of the word “means” in § 1101(a)(43):
8
Much like the Nevada statute at issue in this case, the Illinois statute
in Guerrero defined the offense of “criminal sexual abuse” as a Class A
misdemeanor when the accused “commits an act of sexual penetration or
sexual conduct with a victim who was at least 13 years of age but under
17 years of age and the accused was less than 5 years older than the vic-
tim.”
724 UNITED STATES v. ALVAREZ-GUTIERREZ
[R]ather than leave the question of what constitutes
an aggravated felony open-ended, Congress said,
“The term ‘aggravated felony’ means—. . .” and pro-
ceeded to list what crimes would be considered
aggravated felonies. It is important to note that the
term aggravated felony is placed within quotation
marks and Congress then used the word “means”
after this term. What is evident from the setting aside
of aggravated felony with quotation marks and the
use of the term “means” is that 8 U.S.C.
§ 1101(a)(43) serves as a definition section. . . . The
statute functions like a dictionary, in that it provides
us with Congress’ definition of the term “aggravated
felony.”
Guerrero-Perez, 242 F.3d at 736-37 (citing Stenberg v. Car-
hart, 530 U.S. 914, 942-43 (2000)). Thus, the Seventh Circuit
concluded that, because Congress was defining a term of art,
the words used in the term itself were of no importance at all.
This approach to interpretation of a statutory definition is
precisely that which the Supreme Court declined to embrace
in Leocal. In construing 18 U.S.C. § 16, which specifies what
“[t]he term ‘crime of violence’ means . . . . ,” the Court was
clear that the “ordinary meaning of the term” must ordinari-
ly factor into ascertaining whether an offense met the statu-
tory definition. The very emphasis the Seventh Circuit sought
to place on the word “means” in § 1101(a)(43) is the point on
which Leocal was explicit: Such emphasis cannot come at the
expense of the plain language of the term being defined. See
125 S. Ct. at 383-84. In short, however convincing Guerrero-
Perez might be in the abstract, its underlying logic cannot sur-
vive Leocal.
III. Alvarez-Gutierrez
As Judge Canby has noted, it is a daunting exercise to con-
clude that the only sister circuits previously to consider the
UNITED STATES v. ALVAREZ-GUTIERREZ 725
question presently before this court all got it wrong. See
United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th
Cir. 2000) (Canby, J., dissenting). As outlined above, how-
ever, the source of the Sixth and Eleventh Circuit’s error is
obvious, and the Seventh Circuit’s holding cannot survive
Leocal.
Leocal further clarified that if a statutory definition that can
affect a criminal sentence is ambiguous, the rule of lenity
applies. See 125 S. Ct. at 384 n.8 (“Although here we deal
with § 16 in the deportation context, § 16 is a criminal statute,
and it has both criminal and noncriminal applications.
Because we must interpret the statute consistently, whether
we encounter its application in a criminal or noncriminal con-
text, the rule of lenity applies.”).
The majority in this case reads the ambiguity in
§ 1101(a)(43)(A) in favor of severity, not lenity. As the cen-
tral paragraph of the majority’s opinion provides,
if Congress intended for the offenses listed in
§ 1101(a)(43)(A), one of which is sexual abuse of a
minor, to include only offenses carrying a particular
term of imprisonment, it would have said so
expressly as it did in later subsections of the same
section; it did not. Moreover, by placing the term
“aggravated felony” in 8 U.S.C. § 1101(a)(43)
within quotation marks immediately followed by the
word “means,” Congress made “aggravated felony”
a term of art, defined by the subsections following it.
Ante at 712. The majority’s “plain language” analysis cuts
entirely the other way, especially after Leocal. The majority
assumes, as did the Seventh Circuit in Guerrero-Perez, that
where Congress has not spoken, the default rule is that any
offense can be an aggravated felony. The majority reaches
this conclusion even though the “aggravated felony” defini-
tion has been around since 1988, see Leocal, 125 S. Ct. at 379
726 UNITED STATES v. ALVAREZ-GUTIERREZ
n.1, but had, before 1996, never embraced misdemeanors.
Leocal explains that this analysis is backwards, as any
ambiguity created by shortening the specified term of impris-
onment in other subsections should trigger the rule of lenity
in interpreting subsection (A).
One additional point bears mentioning. It is no coincidence
that the only four circuit cases in which the present issue has
come up — this case, Guerrero-Perez, Marin-Navarette, and
Gonzales-Vela — have been under the “sexual abuse of a
minor” prong of § 1101(a)(43)(A), as opposed to the remain-
der of § 1101(a)(43)(A) or the other fifteen subsections of
§ 1101(a)(43) that specify no minimum term of imprison-
ment. The misdemeanor/felony issue has arisen with regard to
“sexual abuse of a minor,” presumably, because cases in this
and other circuits have substantively construed that term
rather broadly, leading to the inclusion of misdemeanors such
as that for which Alvarez-Gutierrez was convicted. See, e.g.,
United States v. Pallares-Galan, 359 F.3d 1088, 1102 n.7 (9th
Cir. 2004) (citing cases); United States v. Pereira-Salmeron,
337 F.3d 1148 (9th Cir. 2003). The other fifteen ambiguous
subsections — along with the rest of § 1101(a)(43)(A) —
include offenses that, on their face, are serious felonies that
will rarely, if ever, have a statutory maximum sentence of one
year or less.
That it is the “sexual abuse of a minor” cases alone that
have given rise to the issue in this case suggests why Judge
Reinhardt’s observation concerning the overall structure of
§ 1101(a)(43), ante at 714 (Reinhardt, J., concurring), cuts in
the opposite direction from the one he suggests. Judge Rein-
hardt believes that the result today turns on “the fact that
under 8 U.S.C. § 1101(a)(43) the requirement that the actual
sentence imposed be at least one year is generally contained
in the sub-sections applicable to the less serious types of
offenses and that no such additional condition is ordinarily
contained in the sub-sections applicable to the more serious
offenses.” Ante at 714 (Reinhardt, J., concurring). A bit of
UNITED STATES v. ALVAREZ-GUTIERREZ 727
history explains this apparent anomaly in a way that favors
my conclusion, not the majority’s.
Prior to the passage of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, div. C, 110 Stat. 3009-546, only three of the seven-
teen subsections of § 1101(a)(43) included minimum terms of
imprisonment for the offense of conviction; in each case, the
minimum term was five years. See 8 U.S.C. § 1101(a)(43)(F),
(G), (O) (1994). At that point, presumably, it was understood
that all of the crimes listed under the definition of “aggravated
felony” were particularly egregious felonies, not misdemea-
nors. “Murder,” for example, the only crime then listed in
§ 1101(a)(43)(A), is obviously and always a felony. Congress
had no need to specify a second time, in subsection (A) as
well as in the term being defined, that murder must be a fel-
ony before it can be an “aggravated felony.”
In 1996, the “aggravated felony” definition was amended in
two relevant respects: First, “rape” and “sexual abuse of a
minor” were added to subsection (A). See IIRIRA
§ 321(a)(1), 110 Stat. at 3009-627 (codified at 8 U.S.C.
§ 1101(a)(43)(A)). Second, the “at least five year” terms of
imprisonment specified in some of the other subsections were
changed to “at least one year” terms. See id. § 321(a)(3), 110
Stat. at 3009-627 (codified at 8 U.S.C. § 1101(a)(43)(F), (G),
(N), (P)).
That Congress did not include a specified term of imprison-
ment of “at least one year” in § 1101(a)(43)(A) when amend-
ing it to add more crimes indicates to me the opposite of what
Judge Reinhardt suggests. Just as “murder” was sufficiently
serious that it would always be, Congress assumed, a common
law “felony” — that is, a crime for which the statutory maxi-
mum sentence is more than a year — so too the other serious
crimes included within subsection (A) were also intended to
728 UNITED STATES v. ALVAREZ-GUTIERREZ
be felonies, not misdemeanors. See, e.g., Dole v. United Steel-
workers of Am., 494 U.S. 26, 36 (1990) (“The traditional
canon of construction, noscitur a sociis, dictates that words
grouped in a list should be given related meaning.” (internal
quotation marks omitted)); Neal v. Clark, 95 U.S. 704, 708-09
(1878). The term being defined — “aggravated felony” —
was sufficient to so indicate; as previously, there was no rea-
son to repeat, for the more serious crimes, that a significant
prison term was a requisite for inclusion as an “aggravated
felony.” For the less serious crimes, Congress (according to
the Gonzalez-Tamariz line of cases) shaved, by one day, the
usual definition of felony. But it did not abandon all linkage
between “aggravated felony” and a significant maximum term
of imprisonment; even under Gonzalez-Tamariz, the statutory
maximum sentence for those five subsections must still be at
least one year.
Put another way, the upshot of Judge Reinhardt’s more-
serious/less-serious analysis is that Congress meant for the
less serious crimes to link “aggravated felony” status to the
actual term of imprisonment, but for the more serious crimes
intended no link to any term of imprisonment, maximum or
actual. Much more likely is the conclusion that Congress saw
no need to specify a separate term of imprisonment for the
more serious crimes, as the descriptive term “aggravated felo-
ny” served that purpose sufficiently for crimes that were so
serious that they are treated as felonies by the jurisdictions in
which they are committed. To hold otherwise is to suppose
that by shortening the requisite maximum term to at least one
year in other subsections in 1996, or by shifting the focus in
those other subsections to the actual sentence imposed, Con-
gress changed its prior understanding that the crimes specified
in the subsections lacking any specific term-of-imprisonment
language were required to be “felonies,” as the term being
defined specified.
As it turns out, “sexual abuse of a minor,” construed
broadly, is sometimes not a common law felony. But by
UNITED STATES v. ALVAREZ-GUTIERREZ 729
including that term in the same subsection as “murder” and
“rape,” Congress indicated, to me, that it intended to encom-
pass only those “sexual abuse of a minor” crimes that are
similar in their degree of seriousness to “murder” and “rape”
— that is, that are common-law felonies, subject to a maxi-
mum term of imprisonment of more than one year.
Particularly in light of Leocal’s interpretive mandate, then,
the opposite construction of § 1101(a)(43)(A) from that
adopted by the majority must control: Unless Congress
explicitly provides otherwise, an offense cannot be an aggra-
vated felony without first being a felony. Gonzalez-Tamariz
is consistent with this principle, as it relied on the extent to
which Congress “clearly” provided for an exception to the
long-recognized rule. See, e.g., 310 F.3d at 1169
(“ ‘[W]hatever the wisdom of Congress’s decision to alter the
historic one-year line between a misdemeanor and a felony,
the statute is unambiguous in its sweep.’ ” (quoting United
States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir. 2002)));
see also Christopher, 239 F.3d at 1193. Judge Reinhardt
maintains that “[s]uch a construction would compound the
violence we have already done to the English language in this
statute.” Ante at 714 (Reinhardt, J., concurring). I think the
majority today does exactly that, without any help from me.
I would hold that where, as in § 1101(a)(43)(A), Congress has
not “clearly” so provided, the traditional line between misde-
meanors and felonies remains.
CONCLUSION
Absent clearly expressed congressional intent to the con-
trary, historical practice, common sense, and a recent
Supreme Court decision all warrant construing
§ 1101(a)(43)(A) to require that an offense first be a felony
before it can constitute an “aggravated felony.” This court,
and others, read the “at least one year” specification in
§ 1101(a)(43)(F) as purposely overriding, by one day, the
usual meaning of the term being defined, “felony.” Now, with
730 UNITED STATES v. ALVAREZ-GUTIERREZ
no specific indication of congressional intent to depart from
the usual meaning of the term being defined, the majority
attributes to Congress the use of the term “felony” to refer to
a crime that may carry a minimal term of imprisonment. Lan-
guage is just not that malleable. I therefore respectfully dis-
sent.