United States v. Daniel Alvarez-Gutierrez

394 F.3d 1241, 2005 U.S. App. LEXIS 748, 2005 WL 77144
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 14, 2005
Docket04-10241
StatusPublished
Cited by19 cases

This text of 394 F.3d 1241 (United States v. Daniel Alvarez-Gutierrez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Daniel Alvarez-Gutierrez, 394 F.3d 1241, 2005 U.S. App. LEXIS 748, 2005 WL 77144 (9th Cir. 2005).

Opinions

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 [1243]*1243“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-[1244]*1244Tamariz, 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.

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394 F.3d 1241, 2005 U.S. App. LEXIS 748, 2005 WL 77144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-daniel-alvarez-gutierrez-ca9-2005.