NY Misdemeanor Sexual Abuse of a Minor is an “Aggravated Felony” for § 2L1.2

United States v. Ramirez, No. 13-10473 (Sept. 23, 2013) (Stewart, King, Prado)

In sentencing Ramirez for his illegal reentry, the district court applied an 8-level increase pursuant to U.S.S.G. § 2L1.2 after determining that Ramirez’s 2004 misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl, which carried a maximum penalty of three months’ imprisonment, was an aggravated felony.  The court sentenced him to 22 months, which was within the advisory guideline range of 21-27 months.  Without the 8-level enhancement, his range would have been 2-8 months.  Ramirez appealed.

First, the panel found that the statute of conviction—New York third-degree sexual abuse—is divisible because lack of consent in New York can be based on several different predicates, including incapacity to consent because the victim is less than 17.  Next, the panel concluded that the criminal information establishes that Ramirez’s conviction was for sexual abuse of a minor.  Then the panel analyzed whether his conviction merited an 8-level enhancement as an aggravated felony under § 2L1.2.

Section 2L1.2 defines “felony” as any offense punishable by imprisonment for a term exceeding a year but adopts for “aggravated felony” the definition provided in 8 U.S.C. § 1101(a)(43) without any durational limitation.  An aggravated felony includes “murder, rape, or sexual abuse of a minor.”  § 1101(a)(43)(A).  Subsection A does not have a durational limitation, unlike subsections F (crime of violence) or G (theft or burglary offense), which both require a term of imprisonment of at least one year.  Thus, the panel holds that misdemeanor sexual abuse of a minor for which a defendant is sentenced to less than a year of imprisonment is still an aggravated felony.

The panel, along with every circuit to have considered this issue, rejected Ramirez’s argument that a prior conviction must actually be a felony in order to be an aggravated felony.  It maintained that “aggravated felony” is a term of art that can include certain misdemeanors if those convictions otherwise meet one of the definitions listed in § 1101(a)(43).  Ramirez’s argument that such a result is inconsistent with the graduated structure of the Guidelines—“the Sentencing Commission could not have intended to assign a one-time misdemeanant, such as [Ramirez], more offense-level points than would be assigned to a three-time misdemeanant under § 2L1.2(b)(1)(E)—prompted the panel’s response that “[i]t appears as if this is precisely what the Sentencing Commission intended” since it incorporated the § 1101(a)(43) definition of aggravated felony into the § 2L1.2 guideline.

In short, the result doesn’t make common sense.  An aggravated felony does not have to be a felony at all, and Ramirez is now serving at least 14 more months on his illegal reentry conviction because of his prior conviction that carried no more than 3 months of imprisonment.  The panel assumes that Congress and the Sentencing Commission intended this result because of the nature of the offense: sexual abuse of a minor.  Whether they intended this result or not, the remedy for future defendants seems to lie with them—either redefining “aggravated felony” or delinking § 2L1.2 enhancements from § 1101(a)(43)—given the weight of case law against Ramirez’s arguments.