                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4935


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CARLOS PEREZ-PEREZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:12-cr-00027-F-1)


Argued:   October 30, 2013              Decided:   December 18, 2013


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by published opinion. Judge Davis wrote the opinion, in
which Judge Motz and Judge Gregory joined. Judge Davis also
wrote a separate concurring opinion.


ARGUED: Bettina Kay Roberts, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.  ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
DAVIS, Circuit Judge:

     The U.S. Sentencing Guidelines advise district courts to

increase by twelve or sixteen the offense level for a defendant

convicted   of   unlawfully   entering   or   remaining   in   the   United

States if the defendant has a prior felony conviction for “a

crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). “Sexual abuse of

a minor” is listed as a qualifying crime of violence. U.S.S.G. §

2L1.2 cmt. n.1(B)(iii). The issue in this case is whether Carlos

Perez-Perez’s     prior   North   Carolina     conviction      for   taking

indecent liberties with a minor, N.C. Gen. Stat. § 14-202.1(a), 1

constitutes sexual abuse of a minor, and therefore a crime of

violence within the meaning of the reentry Guideline. We are

constrained by our precedent, United States v. Diaz-Ibarra, 522

F.3d 343 (4th Cir. 2008), to hold that it does.


     1
       The text of the Indecent Liberties Statute provides, in
pertinent part, as follows:

          (a) A person is guilty of taking indecent
     liberties with children if, being 16 years of age or
     more and at least five years older than the child in
     question, he either:
          (1) Willfully takes or attempts to take any
     immoral, improper, or indecent liberties with any
     child of either sex under the age of 16 years for the
     purpose of arousing or gratifying sexual desire; or
          (2) Willfully commits or attempts to commit any
     lewd or lascivious act upon or with the body or any
     part or member of the body of any child of either sex
     under the age of 16 years.

N.C. Gen. Stat. § 14–202.1(a).


                                   2
       Having previously entered this country unlawfully, Perez-

Perez, a Mexican citizen, who was then 24 years old, had sex

with       a   15-year       old   girl    in     2001. 2      He    was    charged     in   North

Carolina with statutory rape, N.C. Gen. Stat. § 14-27.7A(a), but

he pled guilty to taking indecent liberties with a minor. Id. §

14-202.1.        He       was   soon     after    deported          to    Mexico.    Perez-Perez

unlawfully        reentered         the    United       States       and    was     convicted    in

federal district court in Texas of reentry by an alien after

deportation following an aggravated felony conviction. He was

again deported to Mexico in 2004.

       After      unlawfully           entering        the    United       States    yet     again,

Perez-Perez           pled      guilty    in     federal       district       court    in    North

Carolina to illegal reentry after deportation by an aggravated

felon. 8 U.S.C. §§ 1326(a) and (b)(2). Over his objection, the

district court concluded that Perez-Perez’s prior North Carolina

conviction         for          taking     indecent          liberties        with      a     minor

constituted           a    crime   of     violence,          and    the    court     applied    the

concomitant               sixteen-level          enhancement,             U.S.S.G.     §     2L1.2

(b)(1)(A), raising Perez-Perez’s sentencing range to forty-six

       2
       Our brief summary of the facts surrounding Perez-Perez’s
indecent liberties conviction relies on the bare contents of the
Pre-Sentence Report prepared by a United States Probation
Officer: “Investigation of this conviction revealed that the
defendant had sexual intercourse with a 15-year old female when
he was 24 years of age. Therefore, this conviction involves the
sexual abuse of a minor and the 16-level enhancement was
appropriately applied.” J.A. 68.


                                                   3
to fifty-seven months from a range of one to seven months. The

district court sentenced Perez-Perez to an imprisonment term of

forty-six months. He filed a timely notice of appeal.

     Perez-Perez raises a single challenge on appeal: He argues

that the district court erred in finding that his prior North

Carolina conviction for taking indecent liberties with a minor,

N.C. Gen. Stat. § 14-202.1(a), qualifies categorically as sexual

abuse of a minor, and thus as a crime of violence within the

meaning of the reentry Guideline. 3 U.S.S.G. § 2L1.2(b)(1)(A).

Because his contention raises a question of law, we review the

district court’s ruling de novo. Diaz-Ibarra, 522 F.3d at 347.

     At base, the categorical approach requires that “we look

only to the statutory definition of the state crime and the fact

of conviction to determine whether the conduct criminalized by

the statute, including the most innocent conduct, qualifies as a

‘crime of violence.’” Id. at 348. Application of this approach

generally involves a four-step process. First, we identify which

of the listed crimes in the Commentary to the Guideline (“the


     3
       The parties have proceeded on the assumption that the
district court applied the categorical approach rather than the
modified categorical approach in its assessment of Perez-Perez’s
indecent liberties conviction. See generally Descamps v. United
States, 133 S. Ct. 2276, 2285 (2013). As the Government supplied
the district court with no Shepard-approved documents, see
Shepard v. United States, 544 U.S. 13, 16 (2005), we also assume
that, necessarily, the district court applied a categorical
approach. Descamps, 133 S. Ct. at 2284-85.


                                4
Guideline      crime”)   most      closely    approximates       the   prior      state

crime. 4 United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th

Cir. 2013). Second, we identify the “generic definition” of the

Guideline crime. United States v. Bonilla, 687 F.3d 188, 192

(4th Cir. 2012). Third, we compare the elements of the prior

state crime to those in the generic definition of the Guideline

crime. Id. If the elements of the prior state crime “correspond

in substance” to those of the Guideline crime, then the prior

state crime is a crime of violence and our inquiry comes to an

end.       Cabrera-Umanzor,        728    F.3d     at     350     (citations       and

modifications        omitted).      If,   however,      the     elements    do     not

correspond in substance, then we proceed to the fourth step,

which involves an assessment of whether the scope of conduct

criminalized by the prior state crime is categorically overbroad

when compared to the generic definition of the Guideline crime.

United States v. Rangel-Castaneda, 709 F.3d 373, 377-79 (4th

Cir.       2013)   (citation   omitted).      A   prior    state    offense       whose

elements       criminalize     a   broader     scope      of    conduct    than    the

Guideline crime is not categorically a crime of violence.

       4
       If none of the listed Guideline crimes are suitable for
comparison, then we assess whether the prior state crime is
captured by the “use of force” clause, which sweeps within its
ambit “any other offense under federal, state, or local law that
has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 2L1.2
cmt. n. 1(B)(iii). The use of force clause is not at issue in
this case.


                                          5
       The paradigmatic exemplar of this structured approach that

proceeded through to step four is Rangel-Castaneda, in which we

held that a Tennessee statutory rape law that made the age of

consent    eighteen      was   categorically      broader      than   the      generic

definitions of statutory rape, forcible sex offense, and sexual

abuse of a minor. Id. at 378-81. Accordingly, the defendant’s

federal sentence for unlawful reentry could not be increased by

sixteen offense levels under U.S.S.G. § 2L1.2(b)(1)(A) on the

basis of his prior conviction under the Tennessee law. Id. at

381.

       Applying    the    above     analytical    framework     to    the    case    at

hand,    we   conclude     that     Perez-Perez’s     conviction       for      taking

indecent liberties with a minor qualifies categorically, at step

three of the above framework, as sexual abuse of a minor, and

therefore     as   a   crime   of    violence    within   the    meaning       of   the

reentry Guideline. The listed Guideline crime that most closely

approximates       the    North     Carolina     crime    of    taking      indecent

liberties with a minor is “sexual abuse of a minor,” a term that

we have previously construed to mean a “perpetrator’s physical

or nonphysical misuse or maltreatment of a minor for a purpose

associated with sexual gratification.” Diaz-Ibarra, 522 F.3d at

352     (quotations      and   citation       omitted).   Although       the     North

Carolina statute appears to encompass two distinct categories of



                                          6
conduct, it has been construed by North Carolina courts as one

crime having five elements:

     (1) the defendant was at least 16 years of age; (2) he
     was five years older than his victim; (3) he willfully
     took or attempted to take an indecent liberty with the
     victim; (4) the victim was under 16 years of age at
     the time the alleged act or attempted act occurred;
     and (5) the action by the defendant was for the
     purpose of arousing or gratifying sexual desire.

State v. Coleman, 684 S.E.2d 513, 519 (N.C. Ct. App. 2009). 5

     Comparing our generic definition of sexual abuse of a minor

with the elements of the North Carolina indecent liberties crime

reveals   both   that   the   elements   of   the   latter   correspond   in

substance with our definition, and that each offense therefore

contemplates criminalization of the same conduct: both target

conduct directed towards minors, both require a mental element

focused on sexual gratification, and both cast a broad net in

capturing physical or nonphysical conduct. Specifically, we are

unable to say that the statutory element of “willfully t[aking]

or attempt[ing] to take an indecent liberty” exceeds the scope

of what we have required: “misuse or maltreatment” of a minor. 6


     5
       Judge King recognized this five-point constellation of
elements of the North Carolina indecent liberties statute in
United States v. Vann, 660 F.3d 771, 782-83 (4th Cir. 2011)
(King, J., concurring), as did the Ninth Circuit in United
States v. Baza-Martinez, 464 F.3d 1010, 1016 (9th Cir. 2006).
See also Vann, 660 F.3d at 791-93 (Davis, J., concurring).
     6
       The first subsection of the North Carolina statute targets
“immoral, improper, or indecent liberties,” N.C. Gen. Stat. §
(Continued)
                                    7
       Perez-Perez       makes   two    arguments       in     contending      that    his

conviction does not constitute sexual abuse of a minor. First,

he argues that the North Carolina crime is broader than Diaz-

Ibarra’s    definition      of   sexual        abuse    of    a   minor      because    the

statute “does not require that the victim even be aware of the

perpetrator’s presence, much less that the act occur within the

physical presence of the child.” App. Br. 14. Second, he argues

that our decision in United States v. Vann, 660 F.3d 771 (4th

Cir.     2011)   (en     banc)    (per     curiam),          establishes       that    his

conviction for taking indecent liberties with a minor is not “a

crime of violence.” These contentions are unpersuasive.

       Perez-Perez’s first argument, that the legal sufficiency of

constructive presence under the North Carolina statute renders

it broader than sexual abuse of a minor, State v. Every, 578

S.E.2d 648, 647 (N.C. Ct. App. 2003), is unavailing because it

elides    the    extraordinary         breadth    of     our      definition     of    the

Guideline crime. In Diaz-Ibarra, we agreed with the Eleventh

Circuit     that     a    perpetrator      can         engage     in      conduct      that

constitutes      sexual     abuse      when      he     is     “in     the    actual     or

constructive presence” of the minor. 522 F.3d at 351 n.6. Thus,




14-202.1(a)(1), while the second targets “lewd and lascivious
act[s]” with the body of a minor, id. § 14-202.1(a)(2); both
types of conduct can be construed as “physical or nonphysical
misuse or mistreatment” of a minor.


                                           8
with respect to the elements of a perpetrator’s presence (or,

what       is   closely       related    thereto,       a   victim’s      awareness    or

knowledge       of    his   presence),      our       definition   of   the    Guideline

crime and the elements of the North Carolina indecent liberties

offense are effectively coterminous in that neither requires the

defendant’s          actual      presence   or        the   victim’s      awareness    or

knowledge of the defendant’s presence.

       Perez-Perez’s second argument, that Vann militates in favor

of concluding that taking an indecent liberty with a minor is

not a “crime of violence,” ultimately fails because accepting it

would      require     us   to    set   aside    our    precedent    in     Diaz-Ibarra,

which we cannot do. See McMellon v. United States, 387 F.3d 329,

332 (4th Cir. 2004) (en banc) (recognizing “the basic principle

that    one     panel   cannot      overrule      a    decision    issued     by   another

panel”). It is true that in Vann we held, proceeding on an

assumption that the modified categorical approach applied, that

the Government had failed to prove that the specific defendant’s

North Carolina conviction for taking indecent liberties with a

minor was a “violent felony” within the meaning of the Armed

Career Criminal Act. 7 660 F.3d at 776. But Vann does not dictate


       7
       In his concurring opinion in Vann, Judge King, joined by
all three members of the present panel, concluded not only that
application of the modified categorical approach was improper,
but also that a North Carolina conviction of taking an indecent
liberty with a minor is not categorically a violent felony
(Continued)
                                             9
reversal in this case, as the per curiam opinion of the en banc

court did not purport to disturb Diaz-Ibarra’s prior definition

of the generic crime of “sexual abuse of a minor.” 8 Moreover,

unlike the reentry Guideline, the Armed Career Criminal Act has

no list of enumerated crimes and contains only the “residual”

and   “force”      clauses,   neither   of    which    expressly    contemplate

sexual     offenses   involving     minors.    Given    these    distinguishing

characteristics, we are constrained to agree with the Government

that Vann does not control, and that there is no interpretation

of the North Carolina indecent liberties statute that does not

fit       within    Diaz-Ibarra’s       extraordinarily         broad   generic

definition of “sexual abuse of a minor.”




within the meaning of the Armed Career Criminal Act. Vann, 660
F.3d at 782 (King, J., concurring). We acknowledge that at least
eight members of the en banc court in Vann expressed the view
that the effect of convictions under the North Carolina indecent
liberties statute properly could be assessed under the modified
categorical approach. See Vann, 660 F.3d at 798 (Keenan, J.,
concurring, joined by Traxler, C.J., and Agee, Wynn, and Diaz,
JJ.); id. at 801 (Wilkinson, J., concurring); id. at 807
(Niemeyer, J., joined by Shedd, J., concurring in part and
dissenting in part). Whether, in light of the Supreme Court’s
intervening decision in Descamps v. United States, 133 S.Ct.
2276 (2013), the views of those judges might today be altered is
a subject about which we need not and do not speculate.
      8
       Notably, in an alternative holding, the opinion in Diaz-
Ibarra indicates that it would have reached the same holding by
application of the modified categorical approach. See 522 F.3d
at 353 n.7. But see supra n.7.



                                        10
       In short, Diaz-Ibarra mandates the result here. It would be

difficult, if not impossible, to conceptualize a situation in

which a perpetrator “willfully” took or attempted to take an

“immoral, improper, or indecent liberty” with a minor that did

not involve his “physical or nonphysical misuse or maltreatment

of     [that]       minor   for     a    purpose        associated      with      sexual

gratification”. Even if we could come up with such a case, it

would likely run counter to the Supreme Court’s admonishment

that     the        categorical     analysis      “requires          more    than    the

application of legal imagination to a state statute’s language.”

Gonzales       v.     Duenas-Alvarez,      127     S.     Ct.   815,        822   (2007)

(regarding the Immigration and Nationality Act). We are tasked

instead        with     assessing       whether    there        is     “a     realistic

probability,          not   a     theoretical      possibility,         that      [North

Carolina] would apply its statute to conduct that falls outside

the generic definition of a crime.” Id. Accordingly, we hold

that a conviction for taking indecent liberties with a minor

qualifies categorically as sexual abuse of a minor under Diaz-

Ibarra and is therefore a crime of violence within the meaning

of the reentry Guideline and its Commentary. U.S.S.G. § 2L1.2

cmt. n. 1(B)(iii). The judgment is

                                                                              AFFIRMED.




                                          11
DAVIS, Circuit Judge, concurring:

       Today’s decision is compelled by United States v. Diaz-

Ibarra, 522 F.3d 343, 352 (4th Cir. 2008), the case in which we

described “sexual abuse of a minor” for purposes of identifying

“a     crime     of       violence”    under       U.S.   Sentencing         Guideline    §

2L1.2(b)(1)(A)(ii)             (the     reentry         Guideline),      to      mean     a

“perpetrator’s physical or nonphysical misuse or maltreatment of

a minor for a purpose associated with sexual gratification.”

(Quotations and citation omitted). I use the term “describe”

rather       than    “define”       quite   purposefully.       This    is    because    in

Diaz-Ibarra, rather than undertake to “define” a generic crime

of sexual abuse of a minor by setting out a list of elements of

such     a     hypothetical         generic    crime,      we   simply       engaged     in

dictionary surfing to arrive at an expansive description of what

we think such a crime might cover. Today’s decision demonstrates

the limitlessness of our Circuit’s conception of “sexual abuse

of a minor”; accordingly, I respectfully submit that the time

has come to reconsider Diaz-Ibarra.

       There        are    several    discrete      problems     with    Diaz-Ibarra’s

construction of “sexual abuse of a minor.”

       First, it is untethered from the very term it is ultimately

intended        to        define:     “crime       of     violence.”         U.S.S.G.     §

2L1.2(b)(1)(A)(ii)            (emphasis       added).     “Nonphysical         misuse    or

maltreatment” certainly includes conduct that does not involve

                                              12
physical force with the intent to cause harm, and therefore the

definition effectively renounces “violence,” the very word it

seeks    to   define.     See    Black’s         Law    Dictionary     (9th     ed.   2009)

(defining      “violence”       as   “[t]he       use    of    physical    force,      usu.

accompanied by fury, vehemence, or outrage; esp., physical force

unlawfully exercised with the intent to harm”). There is no more

probative      evidence    of    this   than       a    sample    of   cases    involving

North Carolina’s indecent liberties statute, N.C. Gen. Stat. §

14-202.1(a).      A     defendant       who       secretly       videotapes      a    minor

undressing when they are not in the same room, State v. McClees,

424 S.E.2d 687, 654 (N.C. Ct. App. 1993), or who has a sexually

explicit      conversation      with    a    minor      over   the     phone,    State   v.

Every, 578 S.E.2d 642, 648 (N.C. Ct. App. 2003), or who hands a

sexually       explicit         note        to     a      minor        soliciting        her

(unsuccessfully) to have sex with him for $10, State v. McClary,

679 S.E.2d 414, 418 (N.C. Ct. App. 2009), is not guilty of a

crime of violence, 1 or indeed, even engaged in conduct in which


     1
       The Government stated at oral argument that these cases
are extreme outliers and that our task is to envision the
paradigm case of taking an indecent liberty with a minor. But
the North Carolina courts’ construction of the statute and its
legislature’s manifest intent suggest that these cases are
actually intended to be the heart of the conduct criminalized.
Indeed, the essence of this statute is its breadth: “[T]he
variety of acts included under the statute demonstrate that the
scope of the statute’s protection is to encompass more types of
deviant behavior and provide children with broader protection
than that available under statutes proscribing other sexual
(Continued)
                                             13
violence   against    a    victim     is    imminently     likely. 2    Hereafter,

however,   convictions     for    all      of   these    acts   will   be    treated

categorically as sexual abuse of a minor and thus as a crime of

violence under our application of Diaz-Ibarra to today’s case. 3

     We    declined   in    Diaz-Ibarra         to   derive     a   definition   of

“sexual abuse of a minor” from a concern about violence and

physical   force   because    the     Sentencing        Commission     had   earlier

amended    the   Commentary      to   make      clear    that   the    absence   of

physical (violent) force did not preclude “sexual abuse of a

minor” from qualifying as a “crime of violence.” Diaz-Ibarra,



acts.” State v. McClary, 679 S.E.2d 414, 418 (N.C. Ct. App.
2009) (citations and quotations omitted) (emphasis added). We
should take the North Carolina courts at their word. In short,
not only does the indecent liberties statute capture far more
conduct than does even a broadly acceptable definition of
“sexual abuse of a minor,” it is intentionally designed to do
just that. That is the gravamen of the opinions by Judge King
and myself in United States v. Vann, 660 F.3d 771 (4th Cir.
2011).
     2
       Cf. United States v. Thornton, 554 F.3d 443, 449 (4th Cir.
2009) (“Although nonforcible adult-minor sexual activity can
present grave physical risks to minors, and although states are
entitled to criminalize nonforcible adult-minor sexual activity
to protect minor victims from these risks, such risks are not
sufficiently ‘similar, in kind as well as in degree of risk
posed to the examples’ of burglary, arson, extortion, and crimes
involving explosives.”) (citation omitted).
     3
       I am not the first to recognize that these cases do not
involve crimes of violence: Judge King saliently made this point
in his concurrence in Vann, 660 F.3d at 785-86 (King, J.,
concurring), an opinion in which all three judges on today’s
panel joined.



                                        14
522 F.3d at 349-50. Presumably, the reason for this was to give

adjudicative power to the Guideline’s “force clause” separate

and       apart       from   the    listed    Guideline     crimes; 4    the    resulting

inference was that “sexual abuse of a minor” does not require

“use of physical force against the person of another” to qualify

as    a       crime    of    violence.    Id.    Similarly,    and      equally      without

controversy, one can agree that “sexual abuse of minor” does not

require that the victim suffer an identifiable injury. Id. at

350-51.

          Surely, however, there must actually be a victim of some

crime of violence, and that victim must suffer maltreatment of a

sort that is something more than the shock resulting from a

sexually-explicit             telephone      conversation.     See    State     v.    Brown,

590       S.E.2d      433,    436   (N.C.    Ct.     App.   2004)    (“Our     holding    in

Every[, 578 S.E.2d at 647–49] stands for the proposition that

repeated, graphic, and explicit sexual conversations over the

          4
       The “force clause” is found in the Commentary to the
Guideline:

          “Crime of violence” means any of the following
          offenses under federal, state, or local law: murder,
          manslaughter, kidnapping, aggravated assault, forcible
          sex offenses, statutory rape, sexual abuse of a minor,
          robbery, arson, extortion, extortionate extension of
          credit, burglary of a dwelling, or any offense under
          federal, state, or local law that has as an element
          the use, attempted use, or threatened use of physical
          force against the person of another.

U.S.S.G. § 2L1.2 cmt. 3 (emphasis added).


                                                15
phone concurrent with indicia of masturbation is sufficient to

allow a jury to conclude such actions amount to taking indecent

liberties.”).

      Thus,      even    if     in   Diaz-Ibarra        we     were    correct        in    our

assessment       of     the     Sentencing         Commission’s       intent,         we   are

precluded     from      defining       “sexual     abuse     of   a   minor”     in    a    way

wholly untethered from the Guideline text – and that is so even

if the Commentary mandates such a result. See United States v.

Peterson,     629       F.3d    432,    435     (4th    Cir.      2011)     (noting        that

Commentary       inconsistent          with     the    Guideline       text      would      be

rendered non-binding).

      Post-Diaz-Ibarra case law from the Supreme Court sheds some

light on the interpretive limits that the word “violence” places

on our construction of these listed Guideline crimes. In Johnson

v.   United      States,       559   U.S.     133,    140    (2010),       the   Court,     in

defining the term “physical force” as employed in the “force

clause”     of    the      Armed       Career      Criminal       Act, 5    rejected        the


      5
       The “force clause” of the Armed Career Criminal Act reads
as follows:

     [T]he term “violent felony” means any crime punishable
     by imprisonment for a term exceeding one year . . .
     that . . . (i) has as an element the use, attempted
     use, or threatened use of physical force against the
     person of another; or (ii) is burglary, arson, or
     extortion, involves use of explosives, or otherwise
     involves conduct that presents a serious potential
     risk of physical injury to another[.]
(Continued)
                                              16
Government’s         contention      that        “physical     force”       should     be

interpreted      to    include     de     minimis   force     as    required    by   the

common law of battery; the Court stated that “[h]ere we are

interpreting the phrase ‘physical force’ as used in defining not

the   crime    of     battery,     but    rather    the   statutory      category      of

‘violent felon[ies].’” Id. at 140. It concluded that “in the

context   of     a    statutory     definition       of   ‘violent      felony,’     the

phrase ‘physical force’ means violent force – that is, force

capable of causing physical pain or injury to another person.”

Id. See also Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (“[W]e

cannot forget that we ultimately are determining the meaning of

the term ‘crime of violence.’               The ordinary meaning of this term

. . . suggests a category of violent, active crimes[.]”); James

v. United States, 550 U.S. 192, 193 (2007) (pre-Diaz-Ibarra). In

other   words,       Johnson     should    be    understood    as    standing    for    a

principle of statutory construction that the Supreme Court has

made particularly salient in federal sentencing cases: specific

terms that qualify the more general are still cabined by the

plain   meaning       of   the    general       term.   Applied     here,    Johnson’s

teaching buttresses the point that “sexual abuse of a minor”




18 U.S.C. § 924(e)(2)(B) (emphasis added).


                                            17
qualifies the term “crime of violence,” and therefore must be

cabined by the operative term: violence.

       Second,     Diaz-Ibarra‘s     description         of   “sexual    abuse      of    a

minor” captures conduct that is not “sexual abuse.” Diaz-Ibarra

reduces “sexual abuse of a minor” into a crime entirely focused

on the defendant’s intent, 522 F.3d at 350, and thereby erases

from   the    analysis   factors      that    are     typically     understood           as

critical      to   defining    sexual      abuse    of    minors,       such   as    the

severity of the conduct, the defendant’s presence, the degree of

the child’s involvement and awareness, coercion, the absence of

consent, and the existence of an injury to the victim. See David

Finkelhor, Current Information on the Scope and Nature of Child

Sexual Abuse, The Future of Children, Vol. 4, No. 2, at 32

(Summer/Fall 1994); David Finkelhor, The Prevention of Childhood

Sexual Abuse, The Future of Children, Vol. 19, No. 2, at 170-71

(Fall 2009). See also 18 U.S.C. § 2243 (making “a sexual act” an

element of the federal crime of “sexual abuse of a minor or

ward”); 28 C.F.R. § 115.6 (defining certain conduct as “sexual

abuse”   in    the   context    of   the     Prison      Rape   Elimination      Act);

United States v. Baza-Martinez, 464 F.3d 1010, 1012 (9th Cir.

2006), rehearing denied, 481 F.3d 690 (9th Cir. 2007) (holding

that North Carolina’s indecent liberties statute is not “sexual

abuse of a minor”).



                                        18
     Third, Diaz-Ibarra’s description of sexual abuse of a minor

is untethered even from the criminal law of several states. For

example, Diaz-Ibarra isolated two critical features that were

elements of the Georgia statute under which the prior conviction

arose: “[1] a defendant who is in a child’s presence must commit

some immoral or indecent act with the intent to gratify his own

sexual desires or the desires of the child . . . [,] and [2] the

child    must    be   at   least   minimally   aware   of    the   defendant’s

presence.” 522 F.3d at 353 (emphasis added). These features were

also elements of the Florida statute in the Eleventh Circuit

case on which Diaz-Ibarra based its description of “sexual abuse

of a minor.” United States v. Padilla-Reyes, 246 F.3d 1158, 1162

n.4 (11th Cir. 2001) (noting that the Florida statute targeted

“[l]ewd, lascivious, or indecent assault or act[s] upon or in

presence    of   child”)    (quoting   Fla.    Stat.   §    800.04)   (emphasis

added). 6


     6
       These features of sexual abuse of a minor are also
elements, either explicitly or implicitly, of every comparable
state statute in the Fourth Circuit. Md. Code, Crim. Law § 3-
602(a)(4) (defining “sexual abuse” for purposes of sexual abuse
of a minor as “an act that involves sexual molestation or
exploitation of a minor, whether physical injuries are sustained
or not”); S.C. Code § 16-3-655 (providing that third-degree
criminal sexual conduct with a minor requires at a minimum an
“attempt to commit a lewd or lascivious act upon or with the
body, or its parts, of a child”); Va. Code § 18.2-67.4:2 and
18.2-67.10(6) (defining “sexual abuse” as an “act committed with
the intent to sexually molest, arouse, or gratify any person,
where” touching or causing touching is involved); W. Va. Code §
(Continued)
                                       19
     But      unlike    the     statutes      at      issue       in      Diaz-Ibarra      and

Padilla-Reyes, “presence” is not an element of our definition of

sexual abuse of a minor. (Nor is it an element of the North

Carolina indecent liberties statute, a point the state appellate

court   has    recognized.       McClees,       424   S.E.2d         at    689.)    In   other

words, Diaz-Ibarra         eschewed      what      may     be    a     common   feature     of

state   child    sexual       abuse    statutes,         presence         and/or    physical

proximity, in favor of something more nebulous, a perplexing

choice given that the Supreme Court has said that our task in

formulating     these    generic       definitions         is     to      contemplate      “the

generic sense in which the term is now used in the criminal

codes of most States.” Taylor v. United States, 495 U.S. 575,

598 (1990) (construing “burglary” in the Armed Career Criminal

Act). This is precisely what we did in United States v. Rangel-

Castaneda,      709    F.3d     373    (4th   Cir.       2013)       (holding       that   the

Tennessee      statutory        rape    statute       is        broader      than    generic

statutory rape). We should revisit our concept of “sexual abuse

of a minor” and follow the approach we took in that case.

     Let’s     be     honest.    Because      child      sexual        abuse    involves     a

particularly vulnerable population, emotions tend to gallop, and

understandably so; indeed, “sexual abuse of a minor” appears to



61-8D-5 (criminalizing any “attempt to engage in sexual
exploitation of, or in sexual intercourse, sexual intrusion or
sexual contact with, a child”).


                                           20
have been included in the reentry Guideline not so much over a

fear       of    violence     but    because       all   decent   people       experience

boundless antipathy and abject opprobrium at the very thought of

such perpetrators. But our task is not to punish sex offenders; 7

rather, it is to give meaning to words chosen by legislators.

How we give meaning to words must be driven by their common

understanding and the context in which they are found. Violence,

abuse,      injury,     and    the    perpetrator’s        presence      are    not   just

relevant        to   assessing,      as   a   factual     matter,       whether   certain

conduct         constitutes    sexual     abuse      -    they    are    also     critical

limiting principles in defining what constitutes “sexual abuse

of a minor” for purposes of federal sentencing law. Although it

may be that not all of these factors should ultimately be built

into a definition of “sexual abuse of a minor,” they at least

are all starting points that Diaz-Ibarra rejected in favor of

breathtaking limitlessness.



       7
           As Judge Haynes has cogently observed:

       We must also remember that federal sentencing is not
       an opportunity to resentence the defendant for a state
       crime. The state has already meted out a punishment it
       thought appropriate. Here, the Texas court sentenced
       Rodriguez to two years of imprisonment. The offense of
       conviction in federal court was illegal reentry, not a
       sexual crime.

United States v. Rodriguez, 711 F.3d 541, 569 n.2 (5th Cir.
2013) (en banc) (Haynes, J., concurring).


                                              21
       There is, however, an even broader point: One who surveys

our    recent,    on-going          efforts    to     make       sense       of    the    reentry

Guideline        will        discover      substantial             dissonance,            rapidly

approaching incoherence. Compare United States v. Montes-Flores,

736 F.3d 357 (4th Cir. 2013) (conviction under South Carolina

law for assault and battery of a high and aggravated nature not

a crime of violence), and United States v. Cabrera–Umanzor, 728

F.3d   347    (4th      Cir.    2013)     (conviction            under      Maryland’s      child

abuse statute not a crime of violence), and United States v.

Torres–Miguel, 701 F.3d 165 (4th Cir. 2012) (conviction under

California law for willfully threatening to commit a crime that

would result in death or great bodily injury not a crime of

violence),      and     Rangel-Castaneda,            709    F.3d       at    373   (conviction

under Tennessee law for statutory rape not a crime of violence),

and    United    States        v.   Gomez,     690        F.3d    194       (4th   Cir.     2012)

(conviction under Maryland’s child abuse statute not a crime of

violence), with United States v. Aparicio–Soria, 721 F.3d 317

(4th   Cir.     2013)        (conviction      under        Maryland         resisting      arrest

statute a crime of violence), rehearing en banc granted, and

United   States       v.     Medina-Campo,          714    F.3d     232      4th    Cir.    2013)

(conviction       under        Oregon     unlawful          delivery          of    controlled

substance statute a predicate “drug trafficking offense”), and

United    States        v.     Bonilla,       687     F.3d       188     (4th      Cir.    2012)

(conviction under Texas law for burglary of a habitation a crime

                                              22
of violence). We would do well to begin the clean-up process by

revisiting Diaz-Ibarra and thereby bring a measure of coherence

to the meaning of “sexual abuse of a minor” at the very least. 8




     8
       Judge Haynes again provides astute observations that are
relevant in this Circuit:

           I write separately because this case highlights
     the need for the Sentencing Commission to define
     “sexual abuse of a minor” — a crime with few common-
     law analogs. Against the backdrop of a patchwork of
     state   laws  on   the  subject,   this  guideline   is
     singularly unhelpful . . . .      We thus are left to
     puzzle over nebulous terms that can mean different
     things in different contexts, a result that frustrates
     our ability to provide even-handed treatment to
     similarly-situated,     but     geographically-diverse,
     defendants.

                        *     *        *

          [M]yriad offenses could fall under the broad
     rubric of “sexual abuse of a minor.” The states, of
     course, are free to criminalize a broad range of
     “sexual” conduct so long as they stay within federal
     constitutional bounds. But in deciding the propriety
     of a federal sentencing enhancement — a uniquely
     federal question — we must seek clarity and uniform
     treatment   of   similarly-situated defendants.  The
     problem presented here is that, because of the vast
     array of conduct that could be “sexual abuse of a
     minor,” “one size does not fit all.” Although a
     sixteen-level enhancement is too low for some of the
     more vile cases we see in this area, it is too high
     for others.

Rodriguez,   711  F.3d   at  568-69        (Haynes,   J.,   concurring)
(citations and footnotes omitted).


                                  23
