USA v. Jose Javier Gomez-Colin, No. 12-10625 (11th Cir. 2012)

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Case: 12-10625 Date Filed: 08/06/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-10625 Non-Argument Calendar ________________________ D.C.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 ________________________ (August 6, 2012) Before DUBINA, Chief Judge, BARKETT and MARCUS, Circuit Judges. Case: 12-10625 Date Filed: 08/06/2012 Page: 2 of 6 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 2 Case: 12-10625 Date Filed: 08/06/2012 Page: 3 of 6 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 3 Case: 12-10625 Date Filed: 08/06/2012 Page: 4 of 6 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 16level 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 7834 Case: 12-10625 Date Filed: 08/06/2012 Page: 5 of 6 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. 5 Case: 12-10625 Date Filed: 08/06/2012 Page: 6 of 6 O.C.G.A. § 16-6-4(a)(1). The Georgia child molestation statute tracks the language of the PadillaReyes 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. 6

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