                                                                  [PUBLISH]

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             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             MAR 23 2001
                                                          THOMAS K. KAHN
                                                               CLERK
                               No. 00-10175

                  D. C. Docket No. 99-00242-CR-1-1-JEC




UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HILARION ALFONSO MARIN-NAVARETTE,

                                                         Defendant-Appellant.




                Appeal from the United States District Court
                   for the Northern District of Georgia


                             (March 23, 2001)


Before DUBINA, FAY and COX, Circuit Judges.
DUBINA, Circuit Judge:

       A federal grand jury indicted appellant Hilarion Marin-Navarette (“Marin-

Navarette”) for violating 8 U.S.C. § 1326, which prohibits an alien who has

previously been deported from re-entering the United States without the consent

and permission of the United States Attorney General. Authorities deported

Marin-Navarette twice – once following a drug conviction and a second time after

his conviction for Attempted Child Molestation in the Third Degree. Marin-

Navarette presents an interesting issue for our review: whether his prior conviction

for Attempted Child Molestation in the Third Degree qualifies as an aggravated

felony under 8 U.S.C. § 1101(a)(43)(A), which triggers a 16-level increase in his

base offense level. See U.S.S.G. § 2L1.2. For the reasons that follow, we hold that

it does.

                                 BACKGROUND

       In March 1999, the Cobb County, Georgia, Sheriff’s Department notified

Immigration and Naturalization Services (“INS”) Agent John Broderick that

Marin-Navarette, an illegal alien, was in its custody for driving with no proof of

insurance and no driver’s license. During an interview with Agent Broderick,

Marin-Navarette disclosed that he was a citizen of Mexico, that he had previously

been deported from the United States, and that he most recently re-entered the


                                          2
United States in December 1998. Marin-Navarette also admitted that he had not

applied to the United States Attorney General for permission to re-enter the United

States. Further investigation by the INS disclosed that Marin-Navarette had been

deported twice. The first deportation occurred following his conviction for

violating Washington State’s Controlled Substances Act. Authorities deported

Marin-Navarette a second time following his guilty plea to Attempted Child

Molestation in the Third Degree pursuant to Washington State law.

      The grand jury indicted Marin-Navarette for violating 8 U.S.C. § 1326, and

Marin-Navarette entered a guilty plea. At his sentencing hearing, Marin-Navarette

challenged whether his state conviction for Attempted Child Molestation in the

Third Degree qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43). The

district court concluded that 8 U.S.C. § 1101(a)(43)(A) includes “sexual abuse of a

minor” in its definition of the term “aggravated felony.” Therefore, the district

court reasoned that Marin-Navarette’s prior conviction for Attempted Child

Molestation qualified as an “aggravated felony,” triggering the 16-level increase in

the base offense level. The district court sentenced Marin-Navarette to 70 months

imprisonment followed by three years supervised release.

                                   DISCUSSION




                                          3
      Marin-Navarette contends that his prior conviction for Attempted Child

Molestation in the Third Degree is a gross misdemeanor under Washington law

and does not fall within the definition of “aggravated felony” as defined in 8

U.S.C. § 1101(a)(43)(A). He contends that felony status is an absolute requirement

for the use of the “aggravated felony” enhancement. Marin-Navarette also posits

that when Congress amended section 1101(a)(43), it did not make clear its intent to

change the long-established rule that only crimes with penalties over one year are

felonies. He relies on this alternative argument because the state court sentenced

him to nine months incarceration on the attempted child molestation charge.

Therefore, he argues, this court should assume that Congress did not intend to

change that rule.

      Marin-Navarette’s argument fails primarily because the language of the

statute is clear that sexual abuse of a minor is an “aggravated felony.” See 8

U.S.C. § 1101(a)(43)(A) (defining an “aggravated felony” as “murder, rape, or

sexual abuse of a minor”). Congress made its intent clear by enacting the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to

specifically include within the meaning of “aggravated felony” sexual abuse of a

minor and by not linking such a conviction to any term of imprisonment. By

adding sexual abuse of a minor to the definition of “aggravated felony” without


                                          4
any reference to a term of imprisonment, Congress broadened the coverage of the

“aggravated felony” classification. Furthermore, sexual abuse of a minor is

included in the definition with other flagitious acts such as murder and rape. Thus,

Congress clearly intended to include these heinous acts as aggravated felonies.

      We also note that prior to the amendment of the IIRIRA, sexual abuse of a

minor was considered an “aggravated felony” because it was a crime of violence.

See Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995). Since Congress did not change

the definition of “aggravated felony” when it made the amendments to the IIRIRA,

we will not surmise a change. Congress clearly considers any crime of sexual

abuse of a minor to be an “aggravated felony.” The fact that Marin-Navarette was

convicted of Attempted Child Molestation makes no difference. See 8 U.S.C. §

1101(a)(43)(U). Marin-Navarette engaged in flagitious conduct when he used

cocaine with a 14 year-old girl, then forced her to the ground, got on top of her and

inserted his finger into her vagina. This conduct meets Congress’s intended

definition of “aggravated felony.”

      Alternatively, Marin-Navarette argues that because his offense is a

misdemeanor, it cannot be an “aggravated felony.” We disagree with this

argument and so held in United States v. Christopher, ___ F.3d ___, No. 00-10899

(January 22, 2001). In Christopher, we adopted the reasoning of our sister circuits


                                          5
and held that some misdemeanors can qualify as “aggravated felonies.” Id. at ___.

We agreed with the third circuit in United States v. Graham, 169 F.3d 787 (3rd

Cir.), cert. denied, 528 U.S. 845, 120 S.Ct. 116 (1999) that Congress was defining

a term of art when it used the term “aggravated felony.” Id. at ___. Moreover, we

noted that Congress’s failure to specify a term of imprisonment evinces its intent to

include misdemeanors within this category.

                                  CONCLUSION

      We hold that Marin-Navarette’s conviction for Attempted Child Molestation

in the Third Degree, although a misdemeanor under state law, falls within the

definition of “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(A).

Accordingly, we affirm the district court’s imposition of a 16-level increase to

Marin-Navarette’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(A).

      AFFIRMED.




                                          6
COX, Circuit Judge, dissenting:

      When construing a statute, a reviewing court starts by looking to the plain

language, giving the words their ordinary meaning. Neeley v. Nagle, 138 F.3d 917,

922 (11th Cir. 1998). Application of this basic rule of statutory construction to 8

U.S.C. § 1101(a)(43) compels the unremarkable conclusion that by enumerating

offenses under the heading “aggravated felony” Congress described a subset of

felonies, felonies distinguished by their tendency to provoke particularly injurious

consequences. See BLACK’S LAW DICTIONARY 65 (7th ed. 1999) (defining

“aggravated” in context of criminal offense as a crime “made worse or more

serious by circumstances such as violence, the presence of a deadly weapon, or the

intent to commit another crime”). The limited legislative history does not

contradict this conclusion. See H.R. CONF. REP. NO. 104-828, at 494 (1996).

      Because of the traditional and pragmatic distinction between felonies and

misdemeanors, it follows that, absent some clear indication to the contrary,

§ 1101(a)(43) should not be read to include misdemeanors in the subset

denominated “aggravated felony.” In addition, both the statutory offense,

described at 8 U.S.C. § 1326, and the relevant Sentencing Guidelines section,

found at § 2L1.2, anticipate a distinction between misdemeanors, felonies, and




                                          7
aggravated felonies.1 The inclusion of misdemeanors in the category “aggravated

felony” would necessarily blur the distinctions made by the statute, the Guidelines,

and the common law.

       The Government argues that because Congress did not specifically link the

“sexual abuse of a minor” offense to a term of imprisonment, it clearly indicated its

intention to include any conviction that might fit that description, whether felony

or misdemeanor, as an aggravated felony. One cannot reach this conclusion,

however, without first deciding that the term “aggravated felony” itself has no

content. Because I start from the premise that the word felony has a clear and

widely understood meaning, and because I presume Congress to have used the

word purposefully, to my mind the absence of language linking sexual abuse of a

minor to any term of imprisonment indicates instead the intention to retain the

traditional understanding.2


       1
               See 8 U.S.C. § 1326 (providing separate penalties for aliens who have committed
“three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other
than an aggravated felony)” and for aliens who have been removed “subsequent to a conviction for
commission of an aggravated felony”); U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A),
(B) & comment. (n.1) (1998) (providing a sixteen level increase in the base offense level for
aggravated felonies, while providing a four level increase for felonies or three or more misdemeanor
crimes of violence or misdemeanor controlled substance offenses and noting that felony offense
“means any federal, state, or local offense punishable by a term of imprisonment for a term
exceeding one year”).
       2
               The majority notes that sexual abuse of a minor was previously considered an
aggravated felony because it was a crime of violence, citing Ramsey v. INS, 55 F.3d 580 (11th Cir.
1995), and reasons that amendment of § 1101(a)(43) to explicitly include sexual abuse of a minor

                                                 8
       In its briefs and at argument the Government analogized this issue to several

cases from other circuits that deal with the treatment of theft offenses under

§ 1101(a)(43). See, e.g. United States v. Graham, 169 F.3d 787, 793 (3d Cir.

1999); United States v. Pacheco, 225 F.3d 148, 155 (2d Cir. 2000). We have since

adopted the reasoning of our sister circuits in United States v. Christopher, 239

F.3d 1191 (11th Cir. 2001), where we determined that Congress explicitly created

an exception to the traditional felony-misdemeanor distinction by including some

misdemeanor theft offenses in the aggravated felony category. Christopher, 239

F.3d at 1193-94. However, neither the reasoning of Christopher nor the cases it

relies on support the Government’s position.

        This court reached its conclusion in Christopher because Congress

explicitly listed “a theft offense . . . for which the term of imprisonment [sic] at

least one year” as an “aggravated felony.” 8 U.S.C. § 1101(a)(43)(G). This meant

that a twelve-month sentence for a theft offense met the aggravated felony criteria

in spite of the fact that it was a state law misdemeanor. Christopher, 239 F.3d at

1194. The Christopher decision was shaped in part by our earlier holding in


in the list of enumerated offenses does not change the categorization. The Ramsey decision,
however, concluded that the attempt to commit a lewd assault against a minor was an aggravated
felony because (1) the offense was a felony under Florida law and (2) it included the aggravating
factor of “a substantial risk that physical force may be used against the victim in the course of
committing the offense,” Ramsey, 55 F.3d at 583, a conclusion consistent with my understanding
of “aggravated felony.”

                                               9
United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) that in this context,

the length of the actual sentence imposed determines whether a crime of theft

constitutes an aggravated felony. Guzman-Bera, 216 F.3d at 1020. More

importantly, in Christopher we discerned Congress’s clear intent to include

maximum-sentence misdemeanants in the aggravated felon category from the

language referring to the term of imprisonment.3 Christopher, 239 F.3d at 1193

(stating “[w]e discern a clear intent in the statute to include as an ‘aggravated

felony’ any theft offense for which the term of imprisonment is at least one year.”).

In other words, § 1103(a)(43)(G) is an exception to the rule that misdemeanors do

not fit within the aggravated felony category, an exception created by

§ 1103(a)(43)(G)’s sentencing language. Graham, 169 F.3d at 792-93

(determining Congress’s intent to breach ancient line between felonies and

misdemeanors and to depart from federal law definition of felony from amendment

to sentencing language in § 1103(a)(43)(G)).


       3
                 In the decisions we adopted in Christopher, 239 F.3d 1191 (11th Cir. 2001) our sister
circuits stated this conclusion was compelled by the language in § 1101(a)(43)(G) describing the
term of imprisonment, but, realizing that this holding did violence to the time-honored line between
felonies and misdemeanors, implored Congress to revisit the issue. See, e.g. United States v.
Graham, 169 F.3d 787, 793 (3d Cir. 1999) (asking Congress to revisit the issue or obviate the
difficulty by more careful drafting); United States v. Pacheco, 225 F.3d 148, 155 (2d Cir. 2000)
(noting incongruence and suggesting solution of terming category “aggravated offenses”). Because
there is no language concerning the term of imprisonment mandating the conclusion that Congress
intended to include sexual abuse of a minor misdemeanors in the aggravated felony category, I think
my conclusion is consistent with Christopher and the reasoning of these other cases.

                                                 10
      Unlike § 1101(a)(43)(G), § 1101(a)(43)(A) contains no reference, to a term

of imprisonment or otherwise, indicating that Congress intended to include sexual

abuse of a minor misdemeanors in the category “aggravated felony.” In the

absence of such language, deciding that § 1101(a)(43)(A) includes misdemeanor

offenses makes the exception the rule. Because I do not conclude that Congress

made clear an intention to contravene the traditional meaning of felony by

including sexual abuse of a minor among the enumerated offenses of 8 U.S.C.

§ 1101(a)(43), I respectfully dissent.




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