United States v. Perez-Perez

737 F.3d 950

UNITED STATES of America, Plaintiff–Appellee,

v.Carlos PEREZ–PEREZ, Defendant–Appellant.

No. 12–4935.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 30, 2013.

Decided: Dec. 18, 2013.

ARGUED: Bettina Kay Roberts, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Joshua L. Rogers, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the opinion, in which Judge MOTZ and Judge GREGORY joined. Judge DAVIS also wrote a separate concurring opinion.

DAVIS, Circuit Judge:

The U.S. Sentencing Guidelines advise district courts to increase by twelve or sixteen the offense level for a defendant convicted of unlawfully entering or remaining in the United States if the defendant has a prior felony conviction for “a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). “Sexual abuse of a minor” is listed as a qualifying crime of violence. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The issue in this case is whether Carlos Perez–Perez's prior North Carolina conviction for taking indecent liberties with a minor, N.C. Gen.Stat. § 14–202.1(a),¹ constitutes sexual abuse of a minor, and therefore a crime of violence within the meaning of the reentry Guideline. We are constrained by our precedent, United States v. Diaz–Ibarra, 522 F.3d 343 (4th Cir.2008), to hold that it does.

Having previously entered this country unlawfully, Perez–Perez, a Mexican citizen, who was then 24 years old, had sex with a 15–year old girl in 2001. ² He was charged in North Carolina with statutory rape, N.C. Gen.Stat. § 14–27.7A(a), but he pled guilty to taking indecent liberties with a minor. Id.§ 14–202.1. He was soon after deported to Mexico. Perez–Perez unlawfully reentered the United States and was convicted in federal district court in Texas of reentry by an alien after deportation following an aggravated felony conviction. He was again deported to Mexico in 2004.

After unlawfully entering the United States yet again, Perez–Perez pled guilty in federal district court in North Carolina to illegal reentry after deportation by an aggravated felon. 8 U.S.C. §§ 1326(a) and (b)(2). Over his objection, the district court concluded that Perez–Perez's prior North Carolina conviction for taking indecent liberties with a minor constituted a crime of violence, and the court applied the concomitant sixteen-level enhancement, U.S.S.G. § 2L1.2(b)(1)(A), raising Perez–Perez's sentencing range to forty-six to fifty-seven months from a range of one to seven months. The district court sentenced Perez–Perez to an imprisonment term of forty-six months. He filed a timely notice of appeal.

Perez–Perez raises a single challenge on appeal: He argues that the district court erred in finding that his prior North Carolina conviction for taking indecent liberties with a minor, N.C. Gen.Stat. § 14–202.1(a), qualifies categorically as sexual abuse of a minor, and thus as a crime of violence within the meaning of the reentry Guideline.³U.S.S.G. § 2L1.2(b)(1)(A). Because his contention raises a question of law, we review the district court's ruling de novo. Diaz–Ibarra, 522 F.3d at 347.

At base, the categorical approach requires that “we look only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as a ‘crime of violence.’ ” Id. at 348. Application of this approach generally involves a four-step process. First, we identify which of the listed crimes in the Commentary to the Guideline (“the Guideline crime”) most closely approximates the prior state crime.⁴United States v. Cabrera–Umanzor, 728 F.3d 347, 352 (4th Cir.2013). Second, we identify the “generic definition” of the Guideline crime. United States v. Bonilla, 687 F.3d 188, 192 (4th Cir.2012). Third, we compare the elements of the prior state crime to those in the generic definition of the Guideline crime. Id. If the elements of the prior state crime “correspond in substance” to those of the Guideline crime, then the prior state crime is a crime of violence and our inquiry comes to an end. Cabrera–Umanzor, 728 F.3d at 350 (citations and modifications omitted). If, however, the elements do not correspond in substance, then we proceed to the fourth step, which involves an assessment of whether the scope of conduct criminalized by the prior state crime is categorically overbroad when compared to the generic definition of the Guideline crime. United States v. Rangel–Castaneda, 709 F.3d 373, 377–79 (4th Cir.2013) (citation omitted). A prior state offense whose elements criminalize a broader scope of conduct than the Guideline crime is not categorically a crime of violence.

The paradigmatic exemplar of this structured approach that proceeded through to step four is Rangel–Castaneda, in which we held that a Tennessee statutory rape law that made the age of consent eighteen was categorically broader than the generic definitions of statutory rape, forcible sex offense, and sexual abuse of a minor. Id. at 378–81. Accordingly, the defendant's federal sentence for unlawful reentry could not be increased by sixteen offense levels under U.S.S.G. § 2L1.2(b)(1)(A) on the basis of his prior conviction under the Tennessee law. Id. at 381.

Applying the above analytical framework to the case at hand, we conclude that Perez–Perez's conviction for taking indecent liberties with a minor qualifies categorically, at step three of the above framework, as sexual abuse of a minor, and therefore as a crime of violence within the meaning of the reentry Guideline. The listed Guideline crime that most closely approximates the North Carolina crime of taking indecent liberties with a minor is “sexual abuse of a minor,” a term that we have previously construed to mean a “perpetrator's physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” Diaz–Ibarra, 522 F.3d at 352 (quotations and citation omitted). Although the North Carolina statute appears to encompass two distinct categories of conduct, it has been construed by North Carolina courts as one crime having five elements:

(1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.

State v. Coleman, 200 N.C.App. 696, 684 S.E.2d 513, 519 (2009).⁵

Comparing our generic definition of sexual abuse of a minor with the elements of the North Carolina indecent liberties crime reveals both that the elements of the latter correspond in substance with our definition, and that each offense therefore contemplates criminalization of the same conduct: both target conduct directed towards minors, both require a mental element focused on sexual gratification, and both cast a broad net in capturing physical or nonphysical conduct. Specifically, we are unable to say that the statutory element of “willfully t[aking] or attempt[ing] to take an indecent liberty” exceeds the scope of what we have required: “misuse or maltreatment” of a minor.⁶

Perez–Perez makes two arguments in contending that his conviction does not constitute sexual abuse of a minor. First, he argues that the North Carolina crime is broader than Diaz–Ibarra 's definition of sexual abuse of a minor because the statute “does not require that the victim even be aware of the perpetrator's presence, much less that the act occur within the physical presence of the child.” App. Br. 14. Second, he argues that our decision in United States v. Vann, 660 F.3d 771 (4th Cir.2011) (en banc) (per curiam), establishes that his conviction for taking indecent liberties with a minor is not “a crime of violence.” These contentions are unpersuasive.

Perez–Perez's first argument, that the legal sufficiency of constructive presence under the North Carolina statute renders it broader than sexual abuse of a minor, State v. Every, 157 N.C.App. 200, 578 S.E.2d 642, 647 (2003), is unavailing because it elides the extraordinary breadth of our definition of the Guideline crime. In Diaz–Ibarra, we agreed with the Eleventh Circuit that a perpetrator can engage in conduct that constitutes sexual abuse when he is “in the actual or constructive presence” of the minor. 522 F.3d at 351 n. 6. Thus, with respect to the elements of a perpetrator's presence (or, what is closely related thereto, a victim's awareness or knowledge of his presence), our definition of the Guideline crime and the elements of the North Carolina indecent liberties offense are effectively coterminous in that neither requires the defendant's actual presence or the victim's awareness or knowledge of the defendant's presence.

Perez–Perez's second argument, that Vann militates in favor of concluding that taking an indecent liberty with a minor is not a “crime of violence,” ultimately fails because accepting it would require us to set aside our precedent in Diaz–Ibarra, which we cannot do. See McMellon v. United States, 387 F.3d 329, 332 (4th Cir.2004) (en banc) (recognizing “the basic principle that one panel cannot overrule a decision issued by another panel”). It is true that in Vann we held, proceeding on an assumption that the modified categorical approach applied, that the Government had failed to prove that...