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In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3919

United States of America,

Plaintiff-Appellee,

v.

Reymundo Martinez-Carillo,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 317--Ruben Castillo, Judge.

Argued April 5, 2001--Decided May 17, 2001


  Before Bauer, Ripple, and Evans, Circuit
Judges.

  Bauer, Circuit Judge.  Reymundo Martinez-
Carillo, a/k/a Raymundo Martinez, appeals
from the sentence imposed by the district
court based upon his illegal entry into
the United States after deportation.
Martinez-Carillo takes issue with three
of the district court's rulings, which
ultimately affected the length of his
sentence. We affirm all of the district
court's conclusions.

BACKGROUND

  Martinez-Carillo, a citizen of Mexico,
had been a lawful permanent resident of
the United States. In December of 1992,
he was convicted of and sentenced for
"Criminal sexual assault" under 720 ILCS
5/12-13(a)(3) (formerly Ill. Rev. Stat.
1989, ch. 38, para. 12-13-A(3)) for
inserting his finger into his daughter's
vagina, who was thirteen years old at the
time. Martinez-Carillo was deported to
Mexico on December 29, 1999 for having
been convicted of an "aggravated felony."

  Soon thereafter, on April, 19, 2000, he
was found in Winnetka, Illinois. In July,
he pled guilty to violating 8 U.S.C. sec.
1326 for unlawfully reentering the United
States without the Attorney General's
permission, but reserved the right to
contest whether his prior Illinois
conviction for "Criminal sexual assault"
was indeed an "aggravated felony." At his
sentencing hearing in November, the
district court (1) enhanced his base
offense level by sixteen levels because
his prior conviction was an "aggravated
felony," (2) refused to depart downward
under U.S.S.G. sec. 4B1.2 because his
prior conviction was a "crime of
violence," and (3) refused to depart
downward for conditions of confinement
based on his status as a deportable
alien. The district court set his
sentence at forty one months
imprisonment. Martinez-Carillo's appeal
contests each of these decisions, which
are questions of law we review de novo.
See United States v. Jaderany, 221 F.3d
989, 995 (7th Cir. 2000); United States
v. McMutuary, 217 F.3d 477, 483 (7th Cir.
2000).

DISCUSSION

  I.  Sexual Abuse of a Minor

  Martinez-Carillo challenges the
conclusion that his Illinois conviction
for "Criminal sexual assault" has
beenlabeled as one for "sexual abuse of a
minor," and is thus an "aggravated
felony." We agree with the district court
and hold that a conviction under 720 ILCS
5/12-13(a)(3) (formerly Ill. Rev. Stat.
1989, ch. 38, para. 12-13-A(3))
constitutes an "aggravated felony" under
8 U.S.C. sec. 1101(a)(43).

  U.S.S.G. sec. 2L1.2(a) assigns a base
offense level of eight to a defendant
convicted of unlawfully reentering the
United States. However, if the
defendant's prior conviction constitutes
an "aggravated felony," his or her base
offense level will be enhanced by sixteen
levels. See U.S.S.G. sec. 2L1.2(b)
(1)(A). Application Note 1 of U.S.S.G.
sec. 2L1.2 references 8 U.S.C. sec.
1101(a)(43) for the definition of
"aggravated felony," and 8 U.S.C. sec.
1101(a)(43)(A) lists "sexual abuse of a
minor" as an "aggravated felony." But,
the statutory guidance ends here, for
"[t]he phrase 'sexual abuse of a minor'
is not defined in [sec. 1101(a)(43)(A)]
either expressly or by reference to any
other statutory provision." Lara-Ruiz v.
INS, 241 F.3d 934, 940 (7th Cir. 2001).

  We have expressed the need for
uniformity in determining whether a
conviction falls within the federal
understanding of the phrase "sexual abuse
of a minor." Uniformity is particularly
needed since state and federal
classifications and definitions of crimes
vary so wildy. For example, Martinez-
Carillo argues that his conviction was
not for "sexual abuse of a minor" because
Illinois labels his conviction as one for
"sexual assault" rather than "sexual
abuse of a minor." We have held that this
of no matter. See Hernandez-Mancilla v.
INS, 2001 WL 357470, at *2 (7th Cir. Apr.
11, 2001) ("Since state definitions . . .
vary wildly, . . . how states classify
crimes is not determinative . . . .");
see also 8 U.S.C. sec. 1101(a)(43) ("The
term ['aggravated felony'] applies to an
offense described in this paragraph
whether in violation of Federal or State
law."). While we did not fashion a formal
definition of "sexual abuse of a minor"
in Lara-Ruiz as we did in Solorzano-
Patlan v. INS, 207 F.3d 869, 874 (7th
Cir. 2000) (creating a generic federal
definition for "burglary" under 8 U.S.C.
sec. 1101(a)(43)(G)), and do in
Hernandez-Mancilla, 2001 WL 357470, at *6
(creating a generic federal definition
for "theft offense (including receipt of
stolen property)" under 8 U.S.C. sec.
1101(a)(43)(G)), we have deciphered that
"Congress intended to give a broad
meaning to the term 'sexual abuse of a minor.'"
Lara-Ruiz, 241 F.3d at 942; accord United
States v. Corona-Sanchez, 234 F.3d 449,
453 (9th Cir. 2000) (recognizing the
"differ[ing] approaches [employed in the
circuit] to testing a prior conviction
for aggravated felony status").

  Further, we have explained that

[i]n determining whether Congress
intended the phrase 'sexual abuse of a
minor' to include conduct punished under
a particular state statute, we must
generally employ a categorical approach;
that is, we consider only whether the
elements of the state offense of which
the alien was convicted--together with
the language of the indictment--
constitute sexual abuse of a minor,
rather than whether the alien's specific
conduct could be characterized as sexual
abuse of a minor.

Id. at 941. In Lara-Ruiz, we applied an
exception to the categorical approach and
held that the defendant's convictions
under 720 ILCS 5/12-13(a)(1) and (a)(2)
(formerly Ill. Rev. Stat. 1991, ch. 38,
para.para. 12-13(a)(1) & (a)(2))
constituted "sexual abuse of a minor,"
even though neither the statute nor the
charging papers revealed the age of the
victim, since the record clearly revealed
that the victim was four-years old. See
id. at 940-42.

  This case is less complicated than Lara-
Ruiz since both the statute of conviction
and the charging papers reveal that the
victim was a minor and that Martinez-
Carillo sexually abused that victim. The
statute of conviction, entitled "Criminal
sexual assault," relevantly states: "(a)
The accused commits criminal sexual
assault if he or she: . . . (3) commits
an act of sexual penetration with a
victim who was under 18 years of age when
the act was committed and the accused was
a family member." 720 ILCS 5/12-13(a)(3)
(formerly 1989 Ill. Rev. Stat. ch. 38,
para. 12-13-A(3)). The charge of
conviction, here the Indictment, reads:
"RaymundoMartinez committed the offense
of Criminal Sexual Assault in that He,
committed an act of sexual penetration
upon [the victim], to wit: an intrusion
in that Raymundo Martinez inserted his
finger into [the victim's] vagina, and
[the victim] was under 18 years of age
when the act was committed and Raymundo
Martinez was a family member, to wit:
father . . . ."

  The conduct that led to conviction in
this case, according to the language of
the statute as well as the Indictment,
was sexual penetration of a victim who
was under 18 years of age. Black's Law
Dictionary provides a generic
understanding of the word "minor." It
defines "minor" as "[a]n infant or person
who is under the age of legal competence.
. . . In most states, a person is no
longer a minor after reaching the age of
18 . . . ." Black's Law Dictionary 997 (6th
ed. 1990). Martinez-Carillo's state
conviction squarely fits within the
federal understanding of the phrase
"sexual abuse of a minor," which adopts
the ordinary, contemporary, and common
meaning of the words. See, e.g., Lara-
Ruiz, 241 F.3d at 940 (accepting the
BIA's creation of a "generic definition
of sexual abuse of a minor which was
consistent with the ordinary, common-
sense meaning of th[e] phrase"); United
States v. Zavala-Sustaita, 214 F.3d 601,
604-05 (5th Cir. 2000) (adopting an
"'ordinary, contemporary, common'"
meaning of the words by examining their
dictionary definitions); United States v.
Baron-Medina, 187 F.3d 1144, 1147 (9th
Cir. 1999) (adopting the "common,
everyday meanings of the words 'sexual'
and 'minor' [and] 'abuse'"). Therefore,
Martinez-Carillo's conviction was of a
crime that constitutes an "aggravated
felony."


  II.  Crime of Violence

  Martinez-Carillo requested a downward
departure under U.S.S.G. sec. 2L1.2, cmt.
n.5, which permits a departure if the
"aggravated felony" enhancement
overstates the seriousness of the
defendant's prior offense. Thus, if the
"aggravated felony" enhancement is
applied,

and (A) the defendant has previously been
convicted of only one felony offense; (B)
such offense was not a crime of violence
or firearms offense; and (C) the term of
imprisonment imposed for such offense did
not exceed one year, a downward departure
may be warranted based on the seriousness
of the aggravated felony.

U.S.S.G. sec. 2L1.2, cmt. n.5. The
district court ruled that Martinez-
Carillo was ineligible for such a
departure because his prior conviction
constituted a "crime of violence."
Application Note 1 of U.S.S.G. sec. 2L1.2
refers to U.S.S.G. sec. 4B1.2(a) for a
definition of "crime of violence," which
defines it as, in part, "any offense
under federal or state law, punishable by
imprisonment for a term exceeding one
year, that . . . presents a serious
potential risk of physical injury to
another."

  Relying on our opinions in Xiong v. INS,
173 F.3d 601 (7th Cir. 1999) and United
States v. Shannon, 110 F.3d 382 (7th Cir.
1997) (en banc), Martinez-Carillo argues
that his conduct did not create a serious
potential risk of physical injury since
"inserting a finger into a vagina, could
not possibly lead to the pregnancy of the
child." We understand Martinez-Carillo's
reliance on Xiong and Shannon, for they
are among the only cases on this subject
in our circuit. However, we find both
distinguishable.

  In both cases the crime of conviction
was classified as statutory rape. See
Xiong, 173 F.3d at 606-07; Shannon, 110
F.3d at 387. In Shannon, we rejected the
government's contention that any sex act
with a minor should be per se classified
as a "crime of violence." See 110 F.3d at
385. The defendant had violated Wis. Stat.
sec. 948.02(2), which forbade sexual
contact or intercourse with victims under
sixteen years of age. See id. at 384. In
holding that a violation of the statute
was not per se a "crime of violence," we
determined that engaging in sexual
intercourse with a thirteen- year-old
girl was a "crime of violence," and
reserved answering whether having sexual
intercourse with a victim over thirteen
was such. See id. at 387-89. In Xiong, we
looked beyond the statute of conviction
to the specific facts of the case and
held that engaging in sexual intercourse
with a fifteen-year-old girl, also a
violation of Wis. Stat. sec. 948.02(2), was
not a "crime of violence" because the
conduct was consensual sex between
boyfriend and girlfriend, and because
there was no substantial age difference
between the defendant and the victim. See
173 F.3d at 604-07.

  In contrast to Xiong and Shannon, the
felony at issue here was prosecuted under
an Illinois statute outlawing incestuous
penetration of a minor. Despite the
general similarities between this case
and Xiong and Shannon, the charging
statute creates a critical difference in
our analysis because each case "must be
considered one by one to see whether the
conduct punished by the particular law
under which the defendant was convicted
involves a serious risk of physical
injury." Shannon, 110 F.3d at 386. This
is so because "the goals behind laws
forbidding sex with minors are various
and need not include the goal of
protecting the minor from a serious risk
of physical injury." Id. We chose not to
per se categorize all statutory rape
cases as "crimes of violence" because
statutory rape criminalizes fact patterns
which may very well not involve coercion
of any form, such as in Xiong. The felony
at issue in this case, however, is
fundamentally different; it involves
incestuous penetration of a minor;
therefore, we consider anew whether this
conduct creates a serious potential risk
of physical injury.

  In Shannon we determined, based on age,
when a violation of a statutory rape
statute would be labeled a "crime of
violence." We found that a thirteen-year-
old girl risked suffering physical injury
associated with potential pregnancy.
However, in this case, the sexual
penetration was digital, and therefore,
Martinez-Carillo argues that since there
would be no potential pregnancy risk,
that there is no serious potential risk
of physical injury. But pregnancy risks
are not the sole concern of the statute
of conviction here. Rather, the statute
of conviction in this case, which
punishes more than sexual intercourse
with a minor, is concerned with the
nature of the relationship between the
defendant and the child-victim. The
familial bond of trust is violated by
actions punished under this statute. A
child-victim is likely to comply with the
sexual request by or action of her father
out of fear stemming from the belief that
physical consequences will flow from
noncompliance or simply because she
trusts him not to do her wrong. We find
that incest presents an aggravating
factor that evokes a serious potential
risk of physical injury. This was alluded
to rather markedly in Shannon: 

Some cases from other circuits might be
read as taking the approach suggested by
the government and thus deeming any
felonious sex act with a minor a per se
crime of violence. Most of them can be
distinguished, however, as involving a
prepubescent child, incest, or other
aggravating factors and in none, so far
as appears from [each of] the court's
factual recitation, was the minor at the
top of the relevant age range with no
aggravating factor present.

110 F.3d at 386 (citing cases).
Therefore, we conclude that Martinez-
Carillo's prior conviction under 720 ILCS
5/12-13(a)(3) (formerly Ill. Rev. Stat.
1989, ch. 38, para. 12-13-A(3)) was a
"crime of violence."

  III.  Deportable Alien Status

  Finally, the district court declined to
grant a downward departure based on
Martinez-Carillo's status as a deportable
alien, which would subject him to harsher
conditions of confinement. The district
court's refusal was predicated on our
opinion in United States v. Gonzalez-
Portillo, 121 F.3d 1122 (7th Cir. 1997),
which precludes such a departure based on
deportable alien status for defendants
convicted of illegal entry into the
United States under 8 U.S.C. sec. 1326
and sentenced under U.S.S.G. sec. 2L1.2.
Martinez-Carillo contends that Gonzalez-
Portillo was wrongly decided because it
is inconsistent United States v. Farouil,
124 F.3d 838 (7th Cir. 1997), and because
it is out of step with Koon v. United
States, 518 U.S. 81 (1996) since the
courts cannot categorically proscribe a
factor as a basis for departure unless
the Sentencing Commission has expressly
forbidden consideration of said factor.
Martinez-Carillo believes that Gonzalez-
Portillo creates such an impermissible
categorical ban on the use of deportable
alien status as a factor for departure,
and thus must be overruled. We disagree.

  A district court shall impose a sentence
within the range spelled out in the
Sentencing Guidelines "unless the court
finds that there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission in formulating the guidelines
. . . ." 18 U.S.C. sec. 3553(b); see
Koon, 518 U.S. at 92. We understand that
"'for the courts to conclude that a [non-
prohibited] factor must not be considered
under any circumstances would be to
transgress the policymaking authority
vested in the Commission.'" McMutuary,
217 F.3d at 484 (quoting Koon, 518 U.S.
at 106-07). Deportable alien status is
not among the factors that has been
prohibited by the Sentencing Commission
as a basis for departure. So, we have
found that "the status of being a
deportable alien can affect the
conditions of imprisonment . . . ,"
United States v. Guzman, 236 F.3d 830,
834 (7th Cir. 2001), and thus have held
that a departure based on conditions of
confinement for a deportable alien is
generally permissible, see id.; Farouil,
124 F.3d at 846-47. 

  However, we have also held that such
status is not a proper basis for
departure when the crime of conviction is
one listed under 8 U.S.C. sec. 1326 and
sentenced under U.S.S.G. sec. 2L1.2. See
Gonzalez-Portillo, 121 F.3d at 1125; see
also Farouil, 124 F.3d at 846. We have so
held because "all crimes covered by
[U.S.S.G. sec.] 2L1.2 involve illegal
presence in the United States by aliens,
deportability was certainly accounted for
in the guideline." Gonzalez-Portillo, 121
F.3d at 1125; see Farouil, 124 F.3d at
847. However, in Farouil we found
deportable alien status a permissible
departure basis since the defendant was
convicted for importing heroin into the
United States. We explained that there
was "no reason to believe that the
Guidelines [had] accounted for a
defendant's status as a deportable alien
in setting the level for that offense."
Farouil, 124 F.3d at 847. We contrasted
this with our holding in Gonzalez-
Portillo, noting that "when the offense
for which the defendant is being
sentenced encompasses being present in
the United States after having been
deported, we ruled that the Guidelines
already took into consideration the
defendant's status as a deportable
alien." Id. Thus, Gonzalez-Portillo and
Farouil are not inconsistent. Farouil
expressly harmonizes its reasoning with
that in Gonzalez-Portillo. See 124 F.3d
at 846-47.

  Gonzalez-Portillo does not violate the
mandate in Koon because it does not
create a categorical ban on the use of
deportable alien status for departure;
rather, it recognizes that the Sentencing
Commission has already fully accounted
for deportable alien status in fixing the
penalty for offenses under 18 U.S.C. sec.
1326. Other circuits have since adopted
the reasoning and holding in Gonzalez-
Portillo. See, e.g., United States v.
Garay, 235 F.3d 230, 234 (5th Cir. 2000)
(joining Gonzalez-Portillo's holding that
"alienage [is] an impermissible basis for
departure when, as here, status as a
deportable alien has necessarily been
taken into account by the Sentencing
Commission in establishing the offense
level for the crime [which was a
violation of 8 U.S.C. sec. 1326]");
United States v. Martinez-Ramos, 184 F.3d
1055, 1058-59 (9th Cir. 1999) (joining
Gonzalez-Portillo's holding that
"departure on account of deportable
status for aliens convicted of [8 U.S.C.]
sec. 1326 offenses fits squarely within
Koon's perimeters and is proscribed").
The district court's decision not to
depart downward on this basis was
correct.

CONCLUSION

  We hereby AFFIRM the district court's
rulings regarding Martinez-Carillo's
sentence.

  RIPPLE, Circuit Judge, concurring.  I
join without reservation the court's
thoughtful opinion. I agree entirely with
the court that there is a sufficient
threat of physical injury in this case to
justify designating the offense as a
"crime of violence" under the existing
standards that focus on physical injury.
I write separately solely to suggest that
this case also demonstrates the
desirability of legislative action to
expand the definition of "crime of
violence" to encompass those situations
in which the victim, while not suffering
physical injury or the threat of physical
injury, suffers severe psychological or
emotional injury that can be diagnosed
under accepted medical standards. The
guidelines already authorize upward
departures for many criminal acts that
cause such injury, see U.S.S.G. sec.
5K2.3,/1 and therefore reflect the
Sentencing Commission's recognition that
crimes that result in extreme emotional
and psychological trauma to their victims
warrant additional punishment. See United
States v. Oliver, 118 F.3d 562, 566-67
(7th Cir. 1997) (affirming district
court's upward departure under sec. 5K2.3
for psychological pain inflicted on
victim under the Mann Act).

  There seems to be no reason why the
psychological injury acknowledged in sec.
5K2.3 ought not be recognized in the
definition of "crime of violence." Such a
recognition would comport with our
contemporary understanding as to the
consequences suffered by victims of crime
and would ensure that criminals who
inflict this damage are treated in the
same manner as those who inflict physical
injury or put their victims in grave
jeopardy of such injury. The emphasis on
physical violence appears to result from
the legislative origins of the provision-
-a provision aimed principally at getting
the physically violent offender off the
street./2 We ought to acknowledge as
well that the offender who inflicts
psychological or emotional trauma poses
the same sort of threat.

FOOTNOTES

/1 Specifically, U.S.S.G. sec. 5K2.3 authorizes
courts to depart upwards, outside the range
established by the applicable guidelines, if the
victim suffers significant psychological injury:

If a victim or victims suffered psychological
injury much more serious than that normally
resulting from commission of the offense, the
court may increase the sentence above
theauthorized guideline range. The extent of the
increase ordinarily should depend on the severity
of the psychological injury and the extent to
which the injury was intended or knowingly
risked.

Normally, psychological injury would be
sufficiently severe to warrant application of
this adjustment only when there is a substantial
impairment of the intellectual, psychological,
emotional, or behavioral functioning of a victim,
when the impairment is likely to be of an
extended or continuous duration, and when the
impairment manifests itself by physical or
psychological symptoms or by changes in behavior
patterns. The court should consider the extent to
which such harm was likely, given the nature of
the defendant's conduct.

U.S.S.G. sec. 5K2.3.

/2 Congress created the Sentencing Commission and
authorized it to promulgate sentencing guidelines
and policy statements as part of the Comprehen-
sive Crime Control Act of 1984. See United States
v. Parson, 955 F.2d 858, 863 (3d Cir. 1992). In
establishing categories of defendants for use in
the sentencing guidelines, Congress instructed
the Commission to consider eleven attributes,
including the defendant's criminal history. See
28 U.S.C. sec. 994(d)(10); Parson, 955 F.2d at
863-64. "Congress particularly wanted to ensure
that recidivist violent and drug offenders re-
ceived stiffer sentences, near the maximum term
authorized for each crime, to remove such danger-
ous offenders from the streets and to deal more
effectively with the growing problems of violent
crime." Parson, 955 F.2d at 864. Consequently,
Congress instructed the Commission to ensure that
the guidelines specify imprisonment terms at or
near the maximum authorized for defendants who
commit a "crime of violence." Id.; see 28 U.S.C.
sec. 994(h). Thus, sec.sec. 4B1.1 and 4B1.2, the
career offender provisions, reflect Congress's
desire to protect the public from dangerous
criminals who commit violent crimes.

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