United States v. Daniel Alvarez-Gutierrez , 394 F.3d 1241 ( 2005 )

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 previously deported after conviction of an “aggravated felony.”

Alvarez-Gutierrez had been previously deported after conviction 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 classifying his state misdemeanor offense as an “aggravated felony.” 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 November 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 violation 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 calculated using an eight-level enhancement, because he had a prior conviction for an “aggravated felony.” See U.S.S.G. § 2L1.2(b)(l)(C). The prior “aggravated felony” was the Nevada misdemeanor offense.

II

The applicable Guideline commentary provides: “For purposes of [U.S.S.G. § 2L1.2](b)(l)(C), ‘aggravated felony’ has the meaning given that term in ... 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2(b)(l)(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.”

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 conviction 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, 121 S.Ct. 1130, 148 L.Ed.2d 996 (2001)).

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).

Ill

Alvarez-Gutierrez’s state law conviction, however, was not a conviction of a felony as that term is traditionally understood. 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 sentence is more than one year”). Alvarez-Gutierrez’s conviction was of a gross misdemean- or, for which the punishment under 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).

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) ] without regard to whether, under state law, the crime is labeled a felony or a misdemeanor,” when the crime is a crime of violence and the sentence imposed by the state court is one year. Gonzalez-Tamariz, 310 F.3d at 1171.

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 felony” 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 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”).

The absence of any qualifying language with reference to the particular offenses listed in § 1101(a)(43)(A) is significant. Ordinarily, “[wjhere Congress includes particular language 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, 104 S.Ct. 296, 78 L.Ed.2d 17 (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 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.

“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, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (quoting 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, 109 S.Ct. 3040, 106 L.Ed.2d 410 (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 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, 119 S.Ct. 804, 142 L.Ed.2d 664 (1999).

IV

We conclude that the district court did not err by classifying Aivarez-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.

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 imprisonment [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;”.