UNITED STATES OF AMERICA,
Plaintiff - Appellee,
JUAN AGUSTIN ZAVALA-SUSTAITA,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
June 13, 2000
In 1990, Zavala pled guilty to two counts of indecency with a child in violation of Texas Penal Code § 21.11(a)(2). The counts were based on a single episode when he exposed himself in public and masturbated in front of a thirteen-year-old girl and a ten-year-old boy. He looked at the girl during the episode but he did not have physical contact with either child. Zavala received concurrent one-year sentences for the convictions, and he was deported later that year.
In 1999, Zavala pled guilty to the instant offense of illegal reentry after removal in violation of 8 U.S.C. § 1326. Citing Zavala's 1990 indecency convictions, the government argued that his § 1326 sentence should be enhanced because he had previously committed two "aggravated felonies." Zavala objected, arguing that a violation of Texas Penal Code § 21.11(a)(2) is not an aggravated felony. Finding that it was, the district court increased Zavala's offense level by sixteen points and sentenced him to seventy-seven months imprisonment.
Zavala now appeals the enhancement. The district court's characterization of Zavala's prior convictions is a question of law which we review de novo. See United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th Cir. 1996).
A defendant convicted of illegal reentry after removal is subject to a much longer sentence if he was previously removed "subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326(b)(2) (providing for up to a twenty-year sentence for former aggravated felons, increased from the normal sentence of no more than two years). The Sentencing Guidelines implement this enhancement in § 2L1.2, which increases the base offense level for a § 1326 violation from eight to twenty-four "[i]f the defendant previously was deported after a criminal conviction . . . for an aggravated felony."(1) United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(1)(A) (1998) (providing a sixteen-level enhancement for aggravated felons). The commentary to § 2L1.2 defines the term "aggravated felony" by referencing 8 U.S.C. § 1101(a)(43). See id. § 2L1.2 comment. (n.1). Section 1101(a)(43), in turn, lists various offenses which constitute aggravated felonies, one of which is at issue here: (1) "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A).(2)
Thus, to resolve whether Zavala's enhancement was proper, we must determine whether Congress intended the phrase "sexual abuse of a minor" to include conduct punished under Texas Penal Code § 21.11(a)(2). In making this determination, we employ a categorical approach, considering whether the elements of a § 21.11(a)(2) offense describe "sexual abuse of a minor" rather than whether Zavala's specific conduct constituted "sexual abuse of a minor." See Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000); cf. Taylor v. United States, 495 U.S. 575, 599-602, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (looking to the statutory definition of an offense to determine whether it was a "burglary" within the meaning of the Anti-Drug Abuse Act of 1986). At the time of Zavala's convictions, Texas Penal Code § 21.11(a)(2) punished someone who "exposes his anus or any part of his genitals, knowing the child [under 17] is present, with intent to arouse or gratify the sexual desire of any person." Tex. Penal Code § 21.11(a)(2).(3) We therefore consider whether a person convicted of (1) exposing himself to a minor, (2) knowing that the minor is present, (3) with the intent to arouse or gratify anyone's sexual desire, has committed "sexual abuse of a minor."(4) See Tex. Penal Code § 21.11(a)(2) (defining the offense); Johnson v. Texas, 967 S.W.2d 848, 850 (Tex. Crim. App. 1998) (stating that the defendant need only know the child is present, not what the child's age is); McKenzie v. Texas, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (stating that the "requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances").
Our starting point is the language Congress employed in § 1101(a)(43)(A). See Lara v. Cinemark USA, Inc., 207 F.3d 783, 787 (5th Cir. 2000) ("In interpreting a statute or regulation, we first look to the statute or regulation's plain language."); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (applying a "common meaning" reading of the phrase "sexual abuse of a minor" in § 1101(a)(43)(A)). We "properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry 'their ordinary, contemporary, common meaning.'" Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993) (internal quotations omitted), quoted in Matter of England, 153 F.3d 232, 235 (5th Cir. 1998). If these words are unambiguous, we end our inquiry with them. See Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 881 (5th Cir. 1999).
The best "ordinary, contemporary, common" reading of the phrase "sexual abuse of a minor" is that it encompasses a violation of Texas Penal Code § 21.11(a)(2). The victim of a § 21.11(a)(2) offense, "a child younger than 17 years," is clearly a "minor." Less clear is whether intentionally and knowingly exposing one's genitals to a minor for sexual arousal or gratification constitutes "sexual abuse." Considering each word in isolation, a § 21.11(a)(2) violation is clearly "sexual abuse." The American Heritage Dictionary defines sexual as "[o]f, pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions," and it defines abuse as, inter alia, "[t]o use wrongly or improperly" or "[t]o hurt or injure by maltreatment." The American Heritage Dictionary 70, 1124 (2d College ed. 1982). A § 21.11(a)(2) violation is "sexual" because it must have sexual arousal or gratification as its purpose. It is abusive because it requires exposure with knowledge of the child's presence, thereby wrongly and improperly using the minor and thereby harming the minor. Cf. Uribe v. Texas, 7 S.W.3d 294, 297 (Tex. App. 1999, pet. ref'd 2000) ("The obvious intent of indecency laws is to protect children."); California v. Stoddard, 227 Cal. App. 2d 40, 41-42 (1964) (upholding a commitment order against a person who was predisposed to commit indecent exposure to girls with "no likelihood of physical contact with them," because the resulting "threat of psychological trauma is quite as much a 'menace to the health or safety of others' as is probable physical injury").
Zavala argues that the phrase "sexual abuse" means something more limited than its constituent parts suggests; i.e., that "sexual abuse" requires more than just some kind of "abuse" which is "sexual" in nature.(5) We conclude that any narrower definition of the phrase lacks support in reason or in the structure of § 1101(a)(43).
Zavala attempts to limit the phrase "sexual abuse of a minor" to abuse involving physical contact. Admittedly, in most cases, abuse involving physical contact will be more severe than abuse which involves no physical contact. However, reading "sexual abuse" as limited to abuse involving physical contact would exclude some clear acts of sexual abuse while including other arguably less abusive acts. A distinction that treats a stranger's brief groping of a child in a public shower as qualitatively more serious than the conduct of an adult who verbally forces a child to watch him repeatedly engage in sex acts is unjustifiable. Both acts are clearly forms of "sexual abuse" as that phrase is commonly understood. See Baron-Medina, 187 F.3d at 1147 ("The use of young children for the gratification of sexual desires constitutes an abuse."); cf. Arthur J. Lurigio, et al., Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Fed. Probation 69, 69 (1995) ("Child sexual abuse is sexual behavior between children and adults with or without coercion or force.").
Additionally, in many acts of sexual abuse involving physical contact, the psychological harm the child suffers equals or outweighs any physical injury. Cf. Lurigio, 59 Fed. Probation at 70-71 (discussing studies detailing the psychological effects of child sexual abuse). The act is "abusive" because of the psychological harm inflicted irrespective of the presence of physical injury. Since psychological harm can occur without physical contact, a distinction based only on physical contact would miss the essential nature of "sexual abuse."(6)
the structure of § 1101(a)(43) counsels against applying a
narrow reading of the phrase. Congress used
words--"sexual abuse of a minor"--which lack legal
specificity, arguing against a technical legal meaning of
the phrase. Congress grouped these words with the words
"murder" and "rape,"(7)
both generic terms
which are traditionally defined under varied state rather
than specific federal law. See Baron-Medina,
187 F.3d at 1146 (rejecting an attempt to incorporate a
limited definition of "sexual abuse of a minor"
into § 1101(a)(43)(A) from another part of the United
States Code, in part for this reason).
Congress did not expressly limit the meaning of "sexual
abuse of a minor" in ways it employed in other parts of
§ 1101(a)(43). Specifically, Congress did not define
"sexual abuse of a minor" by expressly referencing
other provisions of the United States Code, as it did in
several other parts of § 1101(a)(43).(8)
See, e.g., 8 U.S.C. § 1101 (a)(43)(B) ("[I]llicit
trafficking in a controlled substance (as defined in section
802 of Title 21), including a drug trafficking crime (as
defined in section 942(c) of Title 18) . . . ."); id. §
1101(a)(43)(F) ("[A] crime of violence (as defined in
section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment at [sic]
least one year . . . ."); id. §
1101(a)(43)(P) ("[A]n offense (i) which either is
falsely making, forging, counterfeiting, mutilating, or
altering a passport or instrument in violation of section
1543 of Title 18, or is described in section 1546(a) of such
title . . . ."). Nor did Congress narrow the definition
of "sexual abuse of a minor" by requiring a
minimum sentence length, thereby ensuring the offense was of
a sufficient severity. See, e.g., 8 U.S.C.
§ 1101(a)(43)(G) ("[A] theft offense (including
receipt of stolen property) or burglary offense for which
the term of imprisonment at [sic] least one year .
. . ."); id. § 1101(a)(43)(S) ("[A]n
offense relating to obstruction of justice, perjury or
subordination of perjury, or bribery of a witness, for which
the term of imprisonment is at least one year . . .
."). Congress's decision to eschew limits like these in
§ 1101(a)(43)(A) strongly suggests an intent to give a
broad meaning to "sexual abuse of a minor." Cf.
Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111
S. Ct. 840, 112 L. Ed. 2d 919 (1991) ("[W]here 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.") (quotations
omitted and alteration in original); United States v.
Preston, 209 F.3d 783, 784 (5th Cir. 2000)
(holding that the absence of an effective date for certain
parts of an Act, when Congress had expressly stated an
effective date for other parts of the Act, indicates that
the unspecified portions of the Act became effective on
In sum, we
conclude that because a violation of Texas Penal Code §
21.11(a)(2) is "sexual abuse of a minor," the
district court properly enhanced Zavala's sentence based on
his prior convictions.(10)
This conclusion is based on the clear language of §
1101(a)(43)(A), the nature of a § 21.11(a)(2) offense, and
the lack of authority supporting a contrary view.(11)
This conclusion also finds support in the decisions of the
only other tribunals which appear to have addressed this
question. See Baron-Medina, 187 F.3d at
1146; In re Rodriguez-Rodriguez, Interim Decision (BIA)
3411, 1999 WL 731793 (BIA 1999). In Baron-Medina,
the Ninth Circuit was faced with the question of whether a
prior conviction under California's statute punishing lewd
acts against children was "sexual abuse of a
minor" and therefore an aggravated felony. The court
noted that, although the statute required some kind of
physical touching, California courts had interpreted the
statute to cover a defendant's verbal inducement of a child
to touch him or herself or to cover "innocuous
touching, innocently and warmly received, . . . if effected
with lewd intent." Id. at 1147. Stating
broadly that "[t]he use of young children for the
gratification of sexual desires constitutes an abuse,"
the court held that the prior conviction was an aggravated
felony. Id. Similarly, in Rodriguez-Rodriguez,
the BIA addressed the exact issue presented here,
determining (over two dissents) that a violation of Texas
Penal Code § 21.11(a)(2) is an aggravated felony. See
Rodriguez-Rodriguez, Interim Decision (BIA) 3411.
We conclude that
the district court properly enhanced Zavala's sentence under
Sentencing Guidelines § 2L1.2(b)(1)(A). Accordingly, we
In Zavala's case, given his criminal history of VI, this
increased his sentencing range (without other adjustments)
from 18-24 months to 100-125 months.
The government also argues that indecency with a child is an
aggravated felony by virtue of being "a crime of
violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment at [sic] least on year." 8 U.S.C.
§ 1101(a)(43)(F). As we determine that Zavala's prior
offense is an aggravated felony because it was "sexual
abuse of a minor," we need not reach the government's
3. 3 By
contrast, § 21.11(a)(1) punishes someone who actually
"engages in sexual contact with the child." Id.
§ 21.11(a)(1). Whereas indecency by contact under §
21.11(a)(1) is a second degree felony, indecency by exposure
under § 21.11(a)(2) is a third degree felony. See id.
§ 21.11(c) (formerly § 21.11(d)).
Had Zavala's prior
offenses been § 21.11(a)(1) offenses involving physical
contact, we would clearly treat them as aggravated felonies.
In United States v. Velazquez-Overa, 100 F.3d 418
(5th Cir. 1996), we held "categorically that
indecency with a child involving sexual contact, under
Section 21.11(a)(1) of the Texas Penal Code, is a crime of
violence within the meaning of 18 U.S.C. § 16(b). The
offense is therefore an aggravated felony as defined in
Section 2L1.2 of the Sentencing Guidelines." Id. at
422-23. We did not reach the question presented here,
whether indecency with a child under § 21.11(a)(2) is an
aggravated felony. See id. at 421 n.3
("We are not called upon to decide and do not reach the
question whether an offense of indecency with a child not
involving sexual contact inherently involves a substantial
risk of force.").
These elements limit the conduct which will support an
indecency conviction. See, e.g., Bermudez v.
State, 878 S.W.2d 227, 230 (Tex. App. 1994) (finding
insufficient evidence to support an indecency conviction
when the child only stated that she saw the defendant's
"private parts"); Castillo v. State, 771
S.W.2d 239, 240-42 (Tex. App. 1989) (finding insufficient
evidence that the defendant knew the child was present when
the child testified that she saw the defendant walking
around naked outside her house late at night; noting that
"the record is devoid of any attention getting conduct
by the appellant such as pointing, gesturing, playing with
genitals, masturbating, smiling, laughing, beckoning,
Zavala cites a definition of "sexual abuse" from Black's
Law Dictionary which he argues supports a narrower
reading: "Illegal sex acts performed against a minor by
a parent, guardian, relative, or acquaintance." Black's
Law Dictionary 1375 (6th ed. 1990). Putting aside
this definition's requirement that there be some minimal
relationship between the abuser and the abused, which would
lead to an entirely implausible reading of the phrase
"sexual abuse of a minor," cf., e.g.,
Arthur J. Lurigio, et al., Child Sexual Abuse:
Its Causes, Consequences, and Implications for Probation
Practice, 59 Fed. Probation 69, 69 (1995)
("Victims and offenders may be relatives,
acquaintances, or absolute strangers to each other."),
this definition does not significantly help Zavala. The
definition requires acts "performed against a
minor," but this arguably encompasses exposure in the
presence of a minor for the purpose of sexual gratification;
the act is performed "against" the minor because
it requires the minor's presence and the defendant's
knowledge of the minor's presence. This reading is bolstered
by the more expansive Black's definition of
"child abuse," which would clearly cover a
violation of Texas Penal Code § 21.11(a)(2): "Any form
of cruelty to a child's physical, moral or mental
well-being." Id. at 239.
Other efforts to provide a narrower definition of
"sexual abuse" suffer similar problems. A
definition limited to repeated contact would exclude,
without good reason, single egregious acts of abuse which
are clearly "sexual abuse." A definition limited
(as is the case with The Black's Law Dictionary
definition discussed above) by the relationship between the
child and adult would lead to arbitrary distinctions
punishing egregious crimes committed by acquaintances but
not by strangers.
Zavala might argue that grouping "sexual abuse of a
minor" with the very serious offenses of murder and
rape indicates an intent to punish only comparably severe
acts of sexual abuse. This argument would find no support in
the rest of the statute, which includes numerous offenses
within the definition of an "aggravated felony"
which, while serious, are less severe than murder and rape. Cf.,
e.g., Lopez-Elias, 209 F.3d at 792-93 (holding
that burglary of a vehicle is an aggravated felony); Ruiz-Romero
v. Reno, 205 F.3d 837, 840 (5th Cir. 2000)
(concluding that illegally transporting aliens within the
United States is an aggravated felony, even though the
defendant never crossed the border); United States v.
Delgado-Enriquez, 188 F.3d 592, 595 (5th
Cir. 1999) (concluding that criminal trespass is an
aggravated felony); United States v. Santana-Castellano,
74 F.3d 593, 595 (5th Cir. 1996) (noting that the
defendant's prior conviction for importing 70 pounds of
marijuana was an aggravated felony).
8. 8 Zavala specifically urges us to adopt the definition of "sexual abuse of a minor" contained in 18 U.S.C. § 2243, which creates a federal offense of "sexual abuse of a minor or ward" and which premises that offense on physical contact. See 18 U.S.C. § 2243(a) (requiring a knowing "sexual act"); id. § 2246(2) (defining "sexual act" in terms of "contact," "penetration," or "intentional touching"). Given that "Congress must be presumed to have knowledge of its previous legislation when making new laws," Garcia v. United States, 88 F.3d 318, 334 (5th Cir. 1996) (Garza, J., concurring), and therefore must be presumed to have knowledge of § 2243, its failure to expressly reference this section
when it did reference other sections suggests an intent to not incorporate § 2243's definition of sexual abuse into § 1101(a)(43)(A).
This conclusion is not unreasonable in light of the good reasons Congress might have had for adopting different definitions of "sexual abuse of a minor" in § 1101(a)(43)(A) and § 2243. The latter section creates a substantive federal offense, while the former attaches consequences, in the immigration context, to offenses already committed. See, e.g., 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); 8 U.S.C. § 1326. Congress could reasonably have determined that a narrow definition of the phrase "sexual abuse of a minor" was appropriate in creating a new substantive offense, whereas a more expansive definition was appropriate in determining what future consequences should attach to a previously-committed state or federal offense.
"sexual abuse" is defined in broader ways in
another part of the United States Code. In 18 U.S.C. §
3509, Congress defined sexual abuse as "includ[ing] the
employment, use, persuasion, inducement, enticement, or
coercion of a child to engage in, or assist another person
to engage in, sexually explicit conduct or the rape,
molestation, prostitution, or other form of sexual
exploitation of children, or incest with children . . .
." This definition would seemingly cover an offense
under Texas Penal Code § 21.11(a)(2), as this offense
involves the "employment [and] use . . . of a child to
. . . assist another person to engage in sexually explicit
conduct." 18 U.S.C. § 3509(a)(9). Indeed, the Board of
Immigration Appeals recently looked to this statute to
determine that a § 21.11(a)(2) offense is an aggravated
felony under § 1101(a)(43)(A). See In re
Rodriguez-Rodriguez, Interim Decision (BIA) 341 (BIA
1999). Zavala offers no reason why, if we were to turn to
another part of the United States Code for a definition of
the phrase "sexual abuse of a minor," we would
turn to § 2243 instead of the more broadly-worded § 3509.
9. 9 We note that the Eighth Circuit recently looked to 18 U.S.C. § 2243 to give content to Sentencing Guideline § 2G2.2(b)(4), which creates an enhancement for a child pornography trafficker who previously engaged in "sexual abuse or exploitation of a minor." See United States v. Pharis, 176 F.3d 434, 436 (8th Cir. 1999). Doing this, the Eighth Circuit held that a trafficker's prior convictions for obscene phone calls and exposure could not be used to enhance his sentence because they did not involve "sexual abuse or exploitation of a minor." See id. at 436-37. Zavala argues that this case favors his position because it limited the definition of sexual abuse to conduct involving "physical sexual contact." Id.
does not apply here. Section 2G2.2 contains a detailed
definition of "sexual abuse or exploitation." USSG
§ 2G2.2 comment. (n.1). The Eighth Circuit interpreted this
definition narrowly after finding that it tracked various
statutory titles in 18 U.S.C. §§ 2241-46, 2251. See Pharis,
176 F.3d at 436. As noted above, even if we were persuaded
to follow Pharis, we are not persuaded that
Congress intended to adopt § 2243's definition of
"sexual abuse of a minor" in § 1101(a)(43)(A).
We note that, although this is not necessary to our
disposition, any harshness that our holding might give rise
to in future cases is obviated by the district court's
discretion to depart downward if it finds that the
aggravated felony is not sufficiently severe. See USSG
§ 2L1.2 comment. (n.5). This discretion will allow district
courts to effect Congress's intent to punish harshly
offenders who previously sexually abused minors while
allowing the courts to depart in rare circumstances where
the full aggravated felony enhancement is not warranted by
the prior offense.
Because we find that the phrase "sexual abuse of a
minor" is not ambiguous, we reject Zavala's argument
that we should read the phrase narrowly under the rule of
lenity. This rule applies only when "a reasonable doubt
persists about a statute's intended scope even after resort
to the language and structure, legislative history, and
motivating policies of the statute." Moskal v.
United States, 498 U.S. 103, 108, 111 S. Ct. 461, 112
L. Ed. 2d 449 (1990) (internal quotations omitted). We
conclude here that § 1101(a)(43)(A) is not ambiguous.
"Where Congress has manifested its intention, we may
not manufacture ambiguity in order to defeat that
intent." Bifulco v. United States, 447 U.S.
381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980).