Prior Florida conviction for a lewd assault qualified as a crime of violence under the sentencing guidelines enhancement for reentry after deportation

Again the 11th Circuit addressed a common sentencing issue facing Miami federal criminal courts as well as federal courts nationwide: whether a prior offense is considered a crime of violence under the sentencing guidelines. Defining a crime as a crime of violence will determine whether a defendant will receive an significantly enhanced sentence as a career offender or an armed career criminal. In U.S. v. Cortes-Salazar, the 11th Circuit addressed a recurring sentencing guidelines question facing federal criminal courts in Miami and around Florida: whether a prior offense is considered a crime of violence under the sentencing guidelines. How a crime of violence is defined can determine whether a defendant is sentenced as a career offender or as an armed career criminal and the sentence enhancement imposed is very significant. In this case, the definition of a crime of violence meant a significant enhancement for a defendant convicted of reentry after deportation. Here, Cortes-Salazar appealed his 57 month sentence for illegal reentry. His sentence had been enhanced 16 levels under the sentencing guidelines because the sentencing court determined that a prior Florida conviction for a lewd assault act was a crime of violence under the sentencing guidelines provision 2L1.2. In his challenge he claimed his prior conviction did not qualify as sexual abuse of a minor and, therefore, was not a crime of violence. The 11th Circuit disagreed and found it did qualify as a crime of violence for the following reasons.

Under the applicable sentencing guidelines provision 2L1.2, a prior conviction for a crime of violence requires a 16 level enhancement of a defendant’s offense level. The guidelines define a crime of violence to include among other offenses, the sexual abuse of a minor. The 11th Circuit decided in tow earlier cases that prior convictions for sexual abuse of a minor were found to be crimes of violence. In U.S. v. Padilla-Reyes the defendant was convicted of the same Florida offense of sexual abuse of a minor. At the time Padilla Reyes was decided, the guidelines enhanced the sentence for an aggravated felony, which included in its definition the crime of sexual abuse of a minor. The 11th Circuit applied Padilla Reyes to the amended version of the guidelines which enhance a reentry after deportation for having a crime of violence. In U.S. v. Ramirez-Garcia the 11th Circuit again held that the defendant’s prior conviction of “taking indecent liberties with a child” constituted “sexual abuse of a minor” and therefore fell under the guidelines definition of a crime of violence. The Ramirez-Garcia court rejected the defendant’s argument that the prior offense should be interpreted by its plain meaning and found it fell under the definition of a crime of violence.

Cortes-Salazar tried to persuade the 11th Circuit that under the analysis used by the Supreme Court’s decisions in Johnson v. U.S. and Begay v. U.S., the 11th Circuit was required to find this prior was not a crime of violence. Unfortunately, the Supreme Court decisions interpreted the definition of violent felonies under the Armed Career Criminal Act, which differed from the definition of crime of violence given in the the sentencing guidelines.

The defendant also advanced the argument that the sentence enhancement for the prior conviction can only be imposed if the prior conviction was pled in the indictment. The 11th Circuit rejected this argument because the Supreme Court held in Almendarez-Torres v. U.S. 523 U.S. 224 (1998) a prior conviction used to enhance a sentence under the 8 U.S.C. §1326.