Efrain Hernandez Ramirez, a Mexican citizen, was indicted for illegal reentry after being removed from the United States twice, in 2004 and 2009. He pled guilty to one count under 8 U.S.C. 1326, acknowledging his unauthorized presence following a prior removal. During sentencing, the district court enhanced his offense level by eight due to a prior misdemeanor conviction for third-degree sexual abuse in New York, involving consensual intercourse with a fifteen-year-old when he was twenty-four. Initially, the presentence report (PSR) considered this conviction but did not affect the offense level. However, the government objected, asserting that the conviction constituted an aggravated felony under U.S.S.G. 2L1.2 (b)(1)(C). The probation officer amended the PSR, raising the offense level from six to fourteen, which increased the sentencing range from two to eight months to twenty-one to twenty-seven months. At the sentencing hearing, Ramirez contested the classification of his misdemeanor as an aggravated felony, but the district court upheld the enhancement based on precedent cases. After applying a downward variance for acceptance of responsibility, the court sentenced Ramirez to twenty-two months. He subsequently appealed the decision, with the standard of review for the legal interpretation of the Guidelines being de novo.
The district court properly applied U.S.S.G. 2L1.2 when sentencing Ramirez for illegal reentry under 8 U.S.C. 1326, establishing a base level of eight points and an eight-level enhancement due to his prior conviction for an aggravated felony. The commentary defines 'felony' as any offense punishable by over one year in prison, while ‘aggravated felony’ aligns with 8 U.S.C. 1101 (a)(43) and includes serious crimes such as murder and sexual abuse of a minor, without a durational limitation. Ramirez's 2004 New York conviction for third-degree sexual abuse, classified as a class B misdemeanor, was deemed eligible for the enhancement. Under New York law, this offense involves sexual contact without consent, with specific affirmative defenses related to the age of the victim. The Supreme Court mandates a 'categorical approach' for evaluating whether a state conviction qualifies as an aggravated felony, focusing on whether the state statute fits the federal definition rather than the specifics of the individual case. If the statute is divisible—allowing for multiple offenses—the 'modified categorical approach' is used to examine charging documents to determine the specific crime committed. Ramirez contends that New York’s statute is not divisible; however, since the lack of consent can arise from multiple grounds, including situations involving minors, the statute is considered divisible. This conclusion is supported by precedent indicating that similar statutes can be divided based on the age of consent. Consequently, under the modified categorical approach, it is determined that Ramirez's conviction constitutes 'sexual abuse of a minor' under federal law.
Ramirez's appeal centers on his claim that he was wrongly assumed to have been convicted of an underlying felony. He argues that the Guidelines' plain meaning and structure indicate that a felony conviction should not include a misdemeanor. Despite acknowledging conflicting Fifth Circuit law, he attempts to limit its applicability and contends that revisions to the Guidelines have abrogated the earlier cases. He also claims recent Supreme Court decisions prevent his misdemeanor from being classified as a felony.
Ramirez asserts that for a prior conviction to qualify as an aggravated felony, it must be a felony, thus arguing his misdemeanor should not be considered as such. However, every circuit court that has addressed this issue, including the Fifth Circuit, has ruled that misdemeanors can qualify as aggravated felonies under 8 U.S.C. § 1101(a)(43). The definition of 'aggravated felony' includes certain state misdemeanors that carry sentences of at least one year. The First Circuit, in Cordoza-Estrada, noted that while its ruling included durational language, the essence of the analysis remained focused on whether the crime fits the statutory definition of 'aggravated felony.' Although Ramirez hints at a distinction regarding the maximum imprisonment term for his misdemeanor, he does not explicitly argue that it should not be considered a felony on that basis.
Furthermore, Ramirez contends that treating a misdemeanor as a felony contradicts the graduated structure of the Guidelines, which outlines different enhancements for various offense categories, including specific enhancements for certain felonies and for multiple misdemeanors related to violence or drug trafficking.
Ramirez contends that the Sentencing Commission could not have intended to assign him, a one-time misdemeanant, more offense-level points than a three-time misdemeanant under U.S.S.G. 2L1.2 (b)(1)(E). However, the Commission's reliance on a comprehensive list of offenses defining 'aggravated felony' indicates an intention to differentiate between one-time and multiple-time misdemeanants based on the nature of their offenses. The Guidelines also provide a four-level enhancement for felonies, which include offenses carrying more than one year of imprisonment, thereby treating a one-time misdemeanant with a sentence exceeding eleven months as a felon, unlike a misdemeanant with two lesser offenses. Ramirez’s arguments regarding the plain meaning of the statute overlook that certain subsections specify minimum imprisonment terms, while others, like 1101 (a)(43)(A), broadly encompass severe crimes without such limitations. The discussion references United States v. Urias-Escobar, which held that a misdemeanor could qualify as an aggravated felony under 8 U.S.C. 1101 (a)(43)(F) if it involved a violent crime punishable by one year in prison. Ramirez seeks to narrow the scope of this holding by suggesting the requirement of a minimum sentence is crucial, arguing that Urias-Escobar should only apply to subsection (F).
The court emphasized that its reference to the durational language in subsection (F) serves to highlight deference to Congress rather than to limit its ruling. The interpretation of 8 U.S.C. 1101 (a)(43)(F) diverges from the conventional definition of a felony as a crime punishable by more than one year in prison. The court asserted that it is bound to apply Congress's definition regarding the crime of illegal reentry after deportation. In the case of Urias-Escobar, the arguments presented were similar to those in Ramirez, where it was claimed that a misdemeanor assault conviction could not qualify as an aggravated felony. The court rejected this argument broadly, noting that Urias-Escobar cited supportive cases from other circuits, including Guerrero-Perez, which held that a misdemeanor sexual abuse conviction could be classified as an aggravated felony. Although the court did not extensively analyze Guerrero-Perez, its citation undermines Ramirez's position. The court also referenced an unpublished decision in Galvez, which affirmed the application of an aggravated felony enhancement from a prior misdemeanor conviction for sexual abuse, indicating a broader applicability of Urias-Escobar beyond just crimes of violence.
Ramirez contended that changes in the Guidelines post-Urias-Escobar make the case inapplicable, arguing that the original Guidelines allowed only a limited number of enhancements for illegal reentry convictions. He suggested that the inclusion of a separate enhancement for multiple misdemeanors demonstrates that misdemeanors should not be treated as equivalent for sentencing. However, the court maintained that the amendments do not preclude the application of Urias-Escobar, stating that Ramirez's view contradicts the structure of the Guidelines.
Ramirez asserts that the Supreme Court's rulings in Carachuri-Rosendo v. Holder and Moncrieffe v. Holder bar the imposition of an eight-level enhancement based on his misdemeanor conviction. He argues that these cases emphasize a common-sense approach, suggesting that misdemeanors should not be treated as felonies during sentencing. However, the legal issues in Carachuri-Rosendo and Moncrieffe are distinct from the case at hand, which does not alter the ruling in Urias-Escobar.
In Carachuri-Rosendo, the Court evaluated whether a misdemeanor drug possession constituted an aggravated felony for removal proceedings concerning an undocumented alien with two such convictions in Texas. The Immigration and Nationality Act allows lawful permanent residents to seek discretionary relief from removal unless they have been convicted of an aggravated felony. The government contended that the second misdemeanor qualified as an aggravated felony due to its connection to illicit trafficking, as defined in the statute.
The Court held that the second misdemeanor, not charged with a prior conviction, could not be treated as a felony under federal law, emphasizing that the federal court should only consider the state offense as charged. Ramirez interprets this decision to mean that a federal court must adhere to the state court's classification of a crime. However, the holding of Carachuri-Rosendo does not extend to the broader classification of crimes under state law, which is the principal issue in Ramirez's case.
The Court expressed concern regarding the government’s inclusion of uncharged facts from prior convictions to classify an offense as an aggravated felony. In Carachuri-Rosendo, the decision hinged on whether the defendant's prior conviction provided sufficient grounds to differentiate between misdemeanor and felony penalties under federal law. In contrast, Ramirez's conviction is clearly defined as an aggravated felony under both 2L1.2 (b)(1)(C) and 8 U.S.C. 1101 (a)(43), without any additional uncharged facts. Ramirez's conviction for sexual abuse of a minor meets all necessary criteria for this classification.
The Court clarified that Moncrieffe does not apply in this case. Moncrieffe dealt with whether a Georgia conviction for marijuana possession constituted an aggravated felony, focusing on the nature of the offense as either a felony or misdemeanor under the Controlled Substances Act (CSA). The Court concluded that the state conviction did not meet the aggravated felony definition because it could be charged as a misdemeanor.
In contrast, Ramirez's conviction does not require the same statutory interpretation as Moncrieffe. The determination of "sexual abuse of a minor" does not involve additional statutes, and common sense suffices to recognize that Ramirez's conviction qualifies as an aggravated felony. The judgment of the district court is therefore affirmed.
