     Case: 13-10473    Document: 00512408027     Page: 1   Date Filed: 10/16/2013




                       REVISED October 16, 2013

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                 FILED
                                                           September 23, 2013
                                  No. 13-10473
                                                              Lyle W. Cayce
                                                                   Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

EFRAIN HERNANDEZ RAMIREZ,

                                            Defendant-Appellant



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


Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
KING, Circuit Judge.
      Efrain Hernandez Ramirez pled guilty to one count of illegal reentry
following removal and at his sentencing, the district court applied an eight-level
enhancement based on a prior conviction for an aggravated felony.                           The
aggravated felony in question was a New York state misdemeanor conviction for
third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing
that his misdemeanor conviction cannot be an aggravated felony. For the
following reasons, we AFFIRM.
    Case: 13-10473     Document: 00512408027      Page: 2    Date Filed: 10/16/2013



                                  No. 13-10473

                  I. Factual and Procedural Background
      Efrain Hernandez Ramirez is a Mexican citizen, and he was removed from
the United States in March 2004, and again in March 2009. He returned to the
United States several months after his second removal. On October 10, 2012,
the government indicted Ramirez on one count of illegal reentry following
removal from the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).
Ramirez pled guilty without a plea agreement and stipulated that he was found
in the United States without official permission after a prior removal.
      During the sentencing process, issues arose concerning his 2004
misdemeanor conviction in New York for third-degree sexual abuse, which
carried a maximum penalty of three months’ imprisonment. According to
Ramirez’s presentence report (“PSR”), police reports indicated that the
conviction was based on Ramirez’s apparently consensual sexual intercourse
with a fifteen-year-old female when he was twenty-four. Although the PSR
included the sexual abuse conviction in its calculation of his criminal history
category, it did not factor the conviction into his offense level.
      The government objected to the PSR, arguing that Ramirez’s prior
conviction for third-degree sexual abuse should be classified as an aggravated
felony pursuant to § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines
Manual (“the Guidelines”), its associated application notes, and the application
of the modified categorical approach.        The probation officer accepted the
government’s objection and amended Ramirez’s PSR. Instead of a final offense
level of six, as had been assigned in the original PSR, the PSR increased his
offense level to fourteen. The advisory Guidelines range for Ramirez increased
from between two and eight months’ imprisonment, to between twenty-one and
twenty-seven months’ imprisonment.
      During the sentencing hearing, Ramirez objected to the probation officer’s
conclusion that his prior New York conviction qualified as an aggravated felony.

                                         2
    Case: 13-10473     Document: 00512408027      Page: 3   Date Filed: 10/16/2013



                                   No. 13-10473

He asserted that because the conviction was for a misdemeanor, it could not
qualify as an aggravated felony.     Relying on United States v. Galvez, 102 F.
App’x 425 (5th Cir. 2004) (unpublished) (per curiam), and United States v. Urias-
Escobar, 281 F.3d 165 (5th Cir. 2002), the district court rejected Ramirez’s
argument, and applied the enhancement. It also granted Ramirez a downward
variance of one level for acceptance of responsibility, resulting in a Guidelines
advisory range of eighteen to twenty-four months. Given Ramirez’s violent
history, the court ultimately imposed a sentence of twenty-two months. Ramirez
now appeals.
                           II. Standard of Review
      The district court’s legal interpretation of the United States Sentencing
Guidelines is a question of law and is reviewed de novo. United States v. Moore,
708 F.3d 639, 645 (5th Cir. 2013).
                                III. Discussion
      When the district court sentenced Ramirez for illegal reentry into the
United States in violation of 8 U.S.C. § 1326(a) and (b)(2), it properly consulted
§ 2L1.2 of the Guidelines. See U.S.S.G. § 2L1.2, cmt. Under § 2L1.2, the base
level for the offense of illegal reentry is eight points, and it recommends an
eight-level enhancement when the defendant has a conviction for an aggravated
felony. Id. at § 2L1.2(a). The commentary for this section defines both “felony”
and “aggravated felony.”     Whereas a felony is any offense punishable by
imprisonment for a term exceeding a year, see id. § 2L1.2 cmt. n.2, the definition
of aggravated felony provides no durational limitation, see id. § 2L1.2 cmt. n.3.
Instead, the Guidelines adopt the definition provided in 8 U.S.C. § 1101(a)(43).
Id. Under this statute, an aggravated felony includes “murder, rape, or sexual
abuse of a minor.” See 8 U.S.C. § 1101(a)(43)(A).




                                        3
    Case: 13-10473     Document: 00512408027        Page: 4   Date Filed: 10/16/2013



                                   No. 13-10473

      The district court concluded that Ramirez was eligible for the eight-level
enhancement for an aggravated felony based on his 2004 New York conviction
of third-degree sexual abuse, a class B misdemeanor. Under New York law,
      A person is guilty of sexual abuse in the third degree when he or she
      subjects another person to sexual contact without the latter’s
      consent; except that in any prosecution under this section, it is an
      affirmative defense that (a) such other person’s lack of consent was
      due solely to incapacity to consent by reason of being less than
      seventeen years old, and (b) such other person was more than
      fourteen years old, and (c) the defendant was less than five years
      older than such other person.
N.Y. Penal Law § 130.55 (Consol. 2013). New York law also defines lack of
consent, in part, as the incapacity to consent because the victim is less than
seventeen years old. Id. § 130.05(2)(b) & (3)(a).
      When the government alleges that a prior state conviction constitutes an
aggravated felony, the Supreme Court has instructed courts to employ a
“categorical approach” to determine whether the state offense is comparable to
an offense listed in the statute. Moncrieffe v. Holder,--- U.S. ---, 133 S. Ct. 1678,
1684 (2013). “Under this approach, we look not to the facts of the particular
prior case, but instead to whether the state statute defining the crime of
conviction categorically fits within the generic federal definition of a
corresponding aggravated felony.” Id. (citations and internal quotation marks
omitted). If the statute at issue is divisible, or defines multiple offenses, see
Black’s Law Dictionary 1186 (9th ed. 2009), and at least one of the offenses
included in the statute is not an aggravated felony, the court is to apply a
“modified categorical approach.” See Larin-Ulloa v. Gonzales, 462 F.3d 456, 464
(5th Cir. 2006). This approach permits a limited inquiry into the charging
documents to determine which statutory variant of the crime was committed.
Id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005); United States v.
Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).


                                         4
    Case: 13-10473      Document: 00512408027     Page: 5   Date Filed: 10/16/2013



                                  No. 13-10473

      Ramirez’s reply brief argues that New York’s third-degree sexual abuse
statute is not divisible. However, lack of consent under § 130.55 may be based
on several different predicates. See N.Y. Penal Law § 130.05. Among those
predicates is the incapacity to consent because the victim is less than seventeen;
thus, one of the offenses described by the statute is sexual abuse of a minor. See
id. § 130.05(2)(b) & (3)(a); see also Ganzhi v. Holder, 624 F.3d 23, 29–30 (2d Cir.
2010) (per curiam) (holding that a similar New York sexual misconduct statute
is divisible based on § 130.05 and affirming the use of the modified categorical
approach to find that the sexual misconduct conviction constituted an
aggravated felony of sexual abuse of a minor). Accordingly, we apply the
modified categorical approach to determine whether Ramirez’s conviction
satisfies the generic offense. The New York statute and the criminal information
establish that his conviction was for the sexual assault of a minor. Cf. United
States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc) (“[A] statute that
prohibits acts of sexual abuse against minors will comport with the generic
meaning of ‘minor’ as long as the statute sets the age of consent below the age
of majority—which we conclude to be the age of eighteen under our method.”).
Under this approach, Ramirez committed “sexual abuse of a minor” under 8
U.S.C. § 1101(a)(43).
      The focus of Ramirez’s appeal is what he characterizes as the erroneous
“assumption” that he has been convicted of an underlying felony. First, Ramirez
points to the plain meaning of the terms in the Guidelines as well as the
structure of § 2L1.2 to argue that the interpretation of a felony to include a
misdemeanor is erroneous. Recognizing that there is Fifth Circuit law that
contradicts his argument, he attempts to limit the application of that law,
contending it is inapplicable to the specific subsection at issue and that the case
has been abrogated by revisions to the Guidelines. Finally, he asserts that



                                        5
     Case: 13-10473       Document: 00512408027           Page: 6    Date Filed: 10/16/2013



                                       No. 13-10473

recent Supreme Court jurisprudence proscribes the transformation of his
misdemeanor into a felony. We disagree.
A. Plain Meaning and Structure of the Guidelines
       Ramirez maintains that for a prior conviction to constitute an aggravated
felony, the prior conviction must actually be a felony. Under this logic, his
misdemeanor conviction cannot be considered an aggravated felony. While his
argument is seemingly persuasive in its simplicity, every circuit court to have
considered whether a misdemeanor conviction can constitute an aggravated
felony for purposes of § 1101(a)(43), including our court, has held the contrary.
See Urias-Escobar, 281 F.3d 165 at 167; see also United States v.
Gonzalez-Tamariz, 310 F.3d 1168, 1170–71 (9th Cir. 2002); United States v.
Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002); Guerrero-Perez v. INS,
242 F.3d 727, 736 (7th Cir. 2001); United States v. Christopher, 239 F.3d 1191,
1193 (11th Cir. 2001); United States v. Gonzales-Vela, 276 F.3d 763, 768 (6th Cir.
2001); United States v. Pacheco, 225 F.3d 148, 153–54 (2d Cir. 2000); Wireko v.
Reno, 211 F.3d 833, 835 (4th Cir. 2000); United States v. Graham, 169 F.3d 787,
792–93 (3d Cir. 1999); cf. United States v. Cordoza-Estrada, 385 F.3d 56, 58 (1st
Cir. 2004) (per curiam) (“We agree . . . that the statutory definition of the term
‘aggravated felony’ in § 1101(a)(43) is a term of art that includes within its ambit
certain misdemeanors under state law that carry a sentence of at least one
year.”).1


       1
         The First Circuit relied on other circuits in crafting its holding, including ours, and
these circuits held generally that a misdemeanor could constitute an aggravated felony.
Cordoza-Estrada, 385 F.3d at 58. However, the First Circuit included durational language in
its holding despite the fact that the cases on which it relied had not done so. Id. Irrespective
of this durational language, the court’s analysis still focuses on “whether the crime meets the
explicit definition of ‘aggravated felony’ under § 1101(a)(43)(F).” Id. In Cordoza-Estrada, the
durational language was included in the statute at issue. Id. Ramirez has not expressly
argued that his misdemeanor conviction should not be considered a felony because the
maximum term of imprisonment for this offense is less than one year. He touches upon this
issue, though, in his interpretation of Fifth Circuit precedent, Urias-Escobar, which will be

                                               6
    Case: 13-10473     Document: 00512408027       Page: 7   Date Filed: 10/16/2013



                                   No. 13-10473

      In addition to differentiating between the literal meaning of the terms,
Ramirez maintains that construing a misdemeanor as a felony is inconsistent
with the graduated structure of the Guidelines. Aggravated felonies are not the
only offenses that warrant an enhancement under § 2L1.2. For example,
convictions for felonies related to drug trafficking, crimes of violence, or firearms
offenses receive a sixteen-level enhancement, see U.S.S.G. § 2L1.2(b)(1)(A);
convictions for a felony not otherwise specified in the statute receive a four-level
enhancement, id. § 2L1.2(b)(1)(D); and three or more misdemeanor convictions
for crimes of violence or drug trafficking offenses receive a four-level
enhancement, id. § 2L1.2(b)(1)(E).       Based on this progressive schedule of
enhancements, Ramirez argues that the Sentencing Commission could not have
intended to assign a one-time misdemeanant, such as himself, more offense-level
points than would be assigned to a three-time misdeamenant under
§ 2L1.2(b)(1)(E).
      It appears as if this is precisely what the Sentencing Commission
intended. By relying on a long list of offenses to define “aggravated felony,” the
Sentencing Commission intended to treat certain types of one-time
misdemeanants differently than three-time misdemeanants based on the nature
of the underlying offenses. This is not just the case for enhancements based on
aggravated felonies. The Guidelines also assign a four-level enhancement for all
other felonies, where “felony” is defined as “any federal, state, or local offense
punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2,
cmt. n.2. This catch-all provision is broad and includes crimes charged as both
felonies and misdemeanors. Surely the Commission realized that a one-time
misdemeanant convicted of an offense punishable by a term of thirteen months’
imprisonment would be treated differently, i.e., as a felon, than a misdemeanant



discussed below.

                                         7
    Case: 13-10473     Document: 00512408027       Page: 8   Date Filed: 10/16/2013



                                   No. 13-10473

convicted of two crimes, each only punishable by a maximum of eleven months.
To suggest that the Sentencing Commission did not intend to treat different
types of misdemeanors differently is to ignore the clear language of the
Guidelines.
      To a degree, Ramirez’s plain meaning and structural arguments are
counter-productive. The plain meaning of § 1101(a)(43)(A) is that murder, rape,
or sexual abuse of a minor constitutes an aggravated felony. The statute uses
generic offenses and does not specify classes of crimes or a durational
requirement. By contrast, other subsections of the same statute do specify
whether the offense must be a felony or a misdemeanor with a minimum term
of imprisonment. See, e.g., 8 U.S.C. § 1101(a)(43)(F) (“a crime of violence . . . for
which the term of imprisonment [is] at least one year.”); id. § 1101(a)(43)(G) (“a
theft offense . . . or burglary offense for which the term of imprisonment is at
least one year.”); id. § 1101(a)(43)(T) (“an offense relating to a failure to appear
before a court pursuant to a court order to answer to or dispose of a charge of a
felony for which a sentence of 2 years’ imprisonment or more may be imposed.”).
We can infer that Congress is capable of limiting and tailoring the enumerated
offenses in order to identify which constitute aggravated felonies since it has
done precisely that. By merely listing three crimes in subsection (A), “murder,
rape, and sexual abuse of a minor,” without limitation, Congress meant to
encompass all manner of charged crimes, misdemeanor or felony, that fit within
these generic offenses.
B. United States v. Urias-Escobar Applies
      In Urias-Escobar, we held that a prior misdemeanor conviction could be
an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which is “a crime of
violence . . . for which the term of imprisonment [is] at least one year.” 281 F.3d
at 167 (quotation marks, citation, and footnote omitted) (alteration in original).
We explained that “[i]n defining ‘aggravated felony,’ Congress was defining a

                                         8
    Case: 13-10473     Document: 00512408027     Page: 9   Date Filed: 10/16/2013



                                  No. 13-10473

term of art, one that includes all violent crimes punishable by one year’s
imprisonment, including certain violent misdemeanors.” Id.
      Ramirez attempts to limit the holding of Urias-Escobar, and contends that
the inclusion of the “at least one year” language in § 1101(a)(43)(F) was critical
to its analysis and that our holding in Urias-Escobar should likewise be limited
to only cases involving subsection (F). While the court clearly references the
durational language included in subsection (F), this reference was not meant to
limit the holding, but to emphasize the importance of deference to Congress.
The court explained that the language in § 1101(a)(43)(F) does not comport with
the traditional understanding that a felony is any crime punishable by more
than one year’s imprisonment. Id. at 167–68. Despite the discrepancy between
the statute and the common understanding of the term, because “Congress has
the power to define the punishment for the crime of reentering the country after
deportation,” the court must apply that definition as articulated by Congress.
Id. at 167 (quoting Graham, 169 F.3d at 792).
       The limiting language in subsection (F) was not the focus of the legal
inquiry before us in Urias-Escobar; moreover, Urias-Escobar asserted the same
arguments as Ramirez, claiming “that because he was convicted of only
misdemeanor assault, that offense cannot, by definition, be an aggravated felony
under § 2L1.2.” Id. at 167. We disagreed in a similarly broad fashion. Id. at 168.
In fact, Urias-Escobar cites several other circuits in support of its conclusion,
including one from the Seventh Circuit that considered the very matter at issue
here—whether a state conviction for misdemeanor sexual abuse of a minor is an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Id. at 167 n.5 (citing
Guerrero-Perez, 242 F.3d 727, aff’d on reh’g, 256 F.3d 546 (holding that the
defendant’s Illinois misdemeanor conviction for sexual abuse of a fifteen-year-old
girl when he was nineteen constituted an aggravated felony)). While we did not
provide a detailed analysis of Guerrero-Perez, our favorable citation, although

                                        9
   Case: 13-10473     Document: 00512408027     Page: 10   Date Filed: 10/16/2013



                                 No. 13-10473

not controlling, severely undermines Ramirez’s attempt to bar Urias-Escobar’s
application here.
      Finally, we applied Urias-Escobar in an unpublished disposition affirming
the application of the aggravated felony enhancement based upon a prior state
misdemeanor conviction for “sexual abuse of a person under fourteen.” Galvez,
102 F. App’x at 426. Ramirez attacks Galvez as inapplicable since the case is
unpublished and contains little analysis. Galvez has no precedential value, but
it is not irrelevant. It is an indication that this court plainly meant to apply
Urias-Escobar to aid in the interpretation of all of the “aggravated felonies”
enumerated in § 1101(a)(43) and not limit its holding to the sub-category of
aggravated felonies comprising crimes of violence.
      Prepared for the possibility that we would reject his proposed limitations
to Urias-Escobar, Ramirez alternatively argues that the case is no longer
applicable because of amendments to the Guidelines following our decision.
When Urias-Escobar was decided, the Guidelines permitted only two possible
enhancements for individuals convicted of illegal reentry: a sixteen-level
increase for a prior aggravated felony conviction, and a four-level increase for
any other felonies or three misdemeanor convictions. Since that time, the
Guidelines have expanded, and as discussed above, there are now four possible
enhancements available for different categories of prior convictions. Ramirez
again contends that had the Sentencing Commission intended for the Guidelines’
aggravated felony provision to include misdemeanor convictions, then it would
not have included § 2L1.2(b)(1)(E), which recommends enhancements for three
or more misdemeanor convictions for crimes of violence or drug-trafficking. He
suggests that if we apply Urias-Escobar to the present matter and accept that
his misdemeanor conviction for sexual abuse meets the definition of aggravated
felony, this will functionally abrogate subsection (E) of the Guidelines.



                                       10
    Case: 13-10473        Document: 00512408027          Page: 11      Date Filed: 10/16/2013



                                        No. 13-10473

       For the reasons already mentioned, the amendments do not prevent us
from applying Urias-Escobar here.              Ramirez’s argument assumes that all
misdemeanors should be more or less equal for the purposes of sentencing, but
this contradicts the clear design of the Guidelines.
C. Carachuri-Rosendo v. Holder and Moncrieffe v. Holder
       Finally, Ramirez argues that the Supreme Court’s recent decisions in
Carachuri-Rosendo v. Holder and Moncrieffe v. Holder2 prohibit the eight-level
enhancement for his misdemeanor conviction. Focusing on the Court’s repeated
instructions to employ common sense, he contends that the underlying
sentiment in both cases suggest a prohibition against the transformation of a
misdemeanor into a felony at sentencing. Since the factual and legal issues
presented in Carachuri-Rosendo and Moncrieffe are distinguishable, neither
disturbs our holding in Urias-Escobar.
        In Carachuri-Rosendo, the Court considered whether a drug possession
misdemeanor constituted an aggravated felony for the purposes of a removal
proceeding. See --- U.S. ---, 130 S. Ct. 2577, 2578 (2010). The petitioner was an
undocumented alien and he had been convicted of two separate drug possession
misdemeanors in Texas. Id. at 2580. Under the Immigration and Nationality
Act, a lawful permanent resident of the United States may request discretionary
relief that cancels the removal proceedings so long as, inter alia, he has not been
convicted of an aggravated felony. Id. at 2580–81 (citing 8 U.S.C. § 1229b(a)(3)).
The petitioner sought such relief, but the government objected on the grounds



       2
         Ramirez did not raise Moncrieffe in his briefs. He presented the case for the first time
in a letter to the court following oral argument in support of his theory that the expansion of
Urias-Escobar to cover aggravated felonies based on sexual abuse of a minor would create
ambiguity in the Guidelines. In the letter, he also relied on the case as support for the fact
that words should be given their “proper” meaning, e.g. that a misdemeanor is not a felony.
Although we need not consider this as a separate argument, we will discuss this case for the
sake of clarity.

                                               11
    Case: 13-10473    Document: 00512408027       Page: 12   Date Filed: 10/16/2013



                                  No. 13-10473

that his second misdemeanor drug conviction constituted an aggravated felony
within the meaning of the statute. Id. at 2582.
      The alleged aggravated felony at issue was “illicit trafficking in a
controlled substance . . . including a drug trafficking crime (as defined in section
924(c) of title 18).” Id. at 2581 (citing 8 U.S.C. § 1101(a)(43)(B)) (alteration in
original). The statute further defines a drug trafficking crime as any felony
punishable under the Controlled Substances Act (“CSA”), and a felony under the
CSA is a crime for which the maximum term of imprisonment authorized is more
than one year. Id. (citing 18 U.S.C. §§ 924(c)(2), 3559(a)). Thus, if the defendant
had been convicted of an offense that would be punishable under the CSA by
more than a year’s imprisonment, then he would have committed an aggravated
felony for the purposes of the removal proceedings.
      When the petitioner was convicted of his second misdemeanor in Texas,
the fact of his prior conviction was not charged or proven. Id. at 2583. As a
result, his second conviction, as charged, would not have been a felony under the
CSA. Nevertheless, the government argued that the petitioner’s second
conviction qualified as an aggravated felony because if he had been prosecuted
in federal court, he could have been punished by a sentence of up to two years
due to do his prior conviction. Id. at 2582. The Court disagreed, holding that
since the state had not actually charged the existence of a prior conviction, he
was not “actually convicted of a crime that is itself punishable as a felony under
federal law.” Id. at 2589 (emphasis in original). Essentially, the Court rejected
the government’s attempt to modify the underlying conviction, instead requiring
that the federal court only consider the state offense as charged in the state
court, and no more.
      Ramirez characterizes Carachuri-Rosendo as standing for the proposition
that, for the purposes of interpreting § 1101(a)(43), a district court is bound by
the manner in which the state court chooses to charge a crime. Ramirez

                                        12
    Case: 13-10473    Document: 00512408027      Page: 13    Date Filed: 10/16/2013



                                  No. 13-10473

extrapolates that if a state court charges and convicts a person of a
misdemeanor, then the federal court may not characterize that offense as a
felony. But the actual holding is not so broad. Carachuri-Rosendo was not
concerned with the classification of the crime under state law, which is the issue
before us today. The Court was concerned with the government’s decision to
import facts into prior convictions that were never charged, thus manipulating
the offense after the fact to satisfy the requirements of an aggravated felony. Id.
at 2589. Ultimately, the outcome of Carachuri-Rosendo “depended upon the fact
that [the defendant’s] conviction did not establish the fact necessary to
distinguish between misdemeanor and felony punishment under the [federal
law].” Moncrieffe, 133 S. Ct. at 1688 n.8 (discussing Carachuri-Rosendo).
      Here, by contrast, there is no dispute that Ramirez has been convicted of
an offense that § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43) make punishable as
an aggravated felony. The government has not supplemented his misdemeanor
conviction with any facts that were not included when New York charged and
convicted Ramirez of this crime. Ramirez’s conviction establishes all of the facts
necessary to identify it as sexual abuse of a minor. In short, Carachuri-Rosendo
simply is not applicable here.
      Similarly, Moncrieffe does not overrule Urias-Escobar and provides
Ramirez no relief. Moncrieffe considered whether a Georgia conviction for
possession with intent to distribute 1.3 grams of marijuana constituted the
aggravated felony of a drug trafficking crime. See 133 S. Ct. at 1683 (citing 8
U.S.C. § 1101(a)(43)(B)). After performing the necessary statutory gymnastics,
the Court concluded that the law defines an aggravated felony as a drug
trafficking crime if the charged offense would be a felony under the CSA. Id.
However, the petitioner’s state conviction was peculiar in that it was a wobbler
that could be charged as either a felony or a misdemeanor under the CSA. Id.



                                        13
    Case: 13-10473       Document: 00512408027          Page: 14     Date Filed: 10/16/2013



                                       No. 13-10473

at 1684. The legal question before the Court was whether a crime that could be
both a misdemeanor and a felony under the CSA was a drug trafficking crime.
       The Court applied the categorical approach and determined that the state
conviction did not constitute an aggravated felony. Id. at 1684–87. It explained
that “to satisfy the categorical approach, a state drug offense must meet two
conditions: It must ‘necessarily’ proscribe conduct that is an offense under the
CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that
conduct.” Id. at 1685. The CSA did not necessarily prescribe felony punishment
for the prior conviction, though, since it could be punished as a misdemeanor. Id.
at 1686.
       Ramirez points to dicta in Moncrieffe about using common sense;3 yet the
factual and legal issues in Moncrieffe render it inapplicable here. Moncrieffe
involved a situation where the aggravated felony at issue required that the
underlying conviction be a felony under the CSA, but the petitioner’s offense was
not exclusively a felony. The Court’s analysis involved the interpretation and
application of a number of related statutes in order to define the contours of the
aggravated felony. Here, the relevant aggravated felony is “sexual abuse of a
minor.” Unlike in Moncrieffe, which instructed the court to consult a bevy of
statutes to determine the meaning of “drug trafficking,” the provision at issue
here does not require reference to additional statutes to determine the meaning
of “sexual abuse of a minor.” We need only employ common sense to determine
whether the conviction amounts to such. Ramirez was convicted of sexually

       3
         Moncrieffe concludes with the comment that “[t]his is the third time in seven years
that we have considered whether the Government has properly characterized a low-level drug
offense as illicit trafficking in a controlled substance, and thus an aggravated felony. Once
again we hold that the Government’s approach defies the commonsense conception of these
terms.” 133 S. Ct. at 1693 (quoting Carachuri-Rosendo, 130 S. Ct. at 2577) (internal quotation
marks omitted). Ramirez contends that this statement is an explicit signal from the Court
that “unambiguous words” such as “misdemeanor” and “felony” be given their proper meaning.



                                             14
   Case: 13-10473      Document: 00512408027     Page: 15   Date Filed: 10/16/2013



                                  No. 13-10473

abusing a fifteen-year-old girl. He has committed an aggravated felony; nothing
in Moncrieffe alters this analysis.
                                IV. Conclusion
         For the reasons stated above, we AFFIRM the judgment of the district
court.




                                       15
