                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0903n.06
                           Filed: November 17, 2005

                                           No. 04-1743

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


United States of America,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
Miguel A. Rojas-Carillo,                                 )                           OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        DAUGHTREY, COLE, Circuit Judges; BARZILAY, Judge.*

       R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Miguel A. Rojas-Carillo was

deported in November of 2002, following a conviction for fourth degree “criminal sexual conduct”

in a Michigan state court. He reentered the United States, was discovered, and pleaded guilty to

illegal reentry. He appeals the resulting sentence on two grounds. First, Rojas-Carillo contends that

the district court erred in characterizing his Michigan conviction as an aggravated felony or a crime

of violence for sentencing purposes. Second, Rojas-Carillo contends that the district court violated

the Sixth Amendment by treating the United States Sentencing Guidelines (the “Guidelines”) as

mandatory. For the reasons that follow, we affirm the sentence of the district court.




       *
         The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
No. 04-1743
United States v. Miguel Rojas-Carillo



                                                  I.

       Rojas-Carillo was 19 years old when, on August 29, 2002, he was arrested in Michigan in

connection with a sexual encounter involving a 14-year-old girl. He was charged with “criminal

sexual conduct” in the third and fourth degree by the state of Michigan. In the third degree, criminal

sexual conduct involves the sexual penetration of a person at least 13 years of age but no more than

16. The prosecutor declined to go forward with this charge. In the fourth degree, criminal sexual

conduct involves a wide variety of unlawful activity. Rojas-Carillo’s charging document specifies

that he “did engage in sexual conduct with another person . . . using force or coercion to accomplish

the sexual conduct.” Criminal sexual conduct in the fourth degree is a state misdemeanor punishable

by up to two years in custody.

       Rojas-Carillo was found guilty and sentenced to 6 months in jail with credit for 60 days. He

was released on November 18, 2002, and immediately deported. On November 3, 2003, Rojas-

Carillo was discovered in Alma, Michigan, when local police issued him a citation for failure to

register as a sex offender. While in state custody pending resolution of the failure-to-register

citation, Rojas-Carillo was charged federally with reentering the United States without express

permission from the Attorney General. See 8 U.S.C. § 1326(a).

       On January 2, 2004, Rojas-Carillo signed a Rule 11 Agreement whereby he agreed to plead

guilty to illegal reentry and to waive various rights, including the right to appeal his sentence. In

exchange, the Government recommended a three-level reduction for acceptance of responsibility




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United States v. Miguel Rojas-Carillo

and agreed that Rojas-Carillo would be sentenced to no more than the midpoint of the applicable

guideline range.

        The United States Probation Office prepared a Presentence Investigation Report (“PSI”).

The PSI recommended a base level of 8, dictated by the underlying offense of illegal reentry, and

the addition of 16 levels because Rojas-Carillo’s previous felony constituted a “crime of violence.”

The resulting sentencing guideline range was 46 to 57 months, which was further limited to a range

of 46 to 51 months (the range midpoint) pursuant to the Rule 11 Agreement.

       In his sentencing memorandum, Rojas-Carillo argued that because his previous crime was

not an aggravated felony, the maximum penalty he could face was two years. He further argued that

because his crime was neither an aggravated felony nor a crime of violence, he deserved neither an

8 nor a 16-level increase under the Guidelines. Accordingly, Rojas-Carillo calculated his sentencing

guideline range as 10 to 16 months.

       The district court adopted the PSI calculation and sentenced Rojas-Carillo to the minimum

of 46 months. The court observed that because fourth degree criminal sexual conduct is punishable

by more than one year, it is considered a felony for federal sentencing purposes. Although the court

observed that fourth degree criminal sexual conduct could be perpetrated without violence, the court

further noted that the indictment of Rojas-Carillo specified the use of “force or coercion.”

Accordingly, the court found that his crime “include[d] as an element the use, attempted use or

threatened use of physical force against the person of another.” Thus, it was a crime of violence for

sentencing purposes.




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No. 04-1743
United States v. Miguel Rojas-Carillo

        Rojas-Carillo filed a timely appeal under FED. R. APP. P. 4(b); 28 U.S.C. § 1291 grants

jurisdiction to this Court.




                                                 II.

        At first blush, Rojas-Carillo appears to have no right to file this appeal. His Rule 11

Agreement contains a provision entitled “Defendant’s waiver of appeal rights.” It reads:

        Defendant waives any right to file a direct appeal from the conviction or sentence,
        including any right under 18 U.S.C. § 3742 to appeal on the grounds that the
        sentence was imposed as a result of an incorrect application of the sentencing
        guidelines, except that a defendant may appeal one or more of the following
        sentencing actions if defendant makes a timely objection (e.g., a timely objection to
        the presentence report, where applicable): (A) the court’s application of a provision
        in the sentencing guidelines if the application of a provision that was unanticipated
        by the parties and adverse to the interests of the defendant . . .1

        The Government contends, and Rojas-Carillo’s counsel conceded at oral argument, that

Rojas-Carillo may not appeal his sentence on the basis of United States v. Booker, 125 S.Ct. 738

(2005), because he did not raise a Booker objection at his sentencing hearing. Although the

defendant’s failure to object on the basis of a unannounced principle is understandable, this Court

has held that Booker does not invalidate the waiver of a right to appeal one’s sentence. See United




        1
        The provision lists four other exceptions, none of which even arguably apply to the case at
bar. They are (1) a departure from the criminal history points indicated on the attached worksheet,
(2) the addition of time to a sentence presently being served, (3) the denial of a reduction for
acceptance of responsibility, and (4) the imposition of an enhancement for obstruction of justice.

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No. 04-1743
United States v. Miguel Rojas-Carillo

States v. Bradley, 400 F.3d 459, 464 (6th Cir. 2005). Thus, it is clear that Rojas-Carillo is not

entitled to remand under Booker; and we so hold.

       The parties also agree that Rojas-Carillo has the right to appeal his sentence on the basis that

the district court misapplied the Guidelines. We find this curious: Rojas-Carillo waived his right

to appeal “on the grounds that his sentence was imposed as a result of an incorrect application of the

sentencing guidelines.” Rojas-Carillo may appeal an application that was “unanticipated by the

parties.” Yet the base level of 8 and the 16-level enhancement for “deportation following crime of

violence” was referenced by, and attached to, the Rule 11 Agreement Rojas-Carillo signed. Even

assuming the word “parties” to apply only to one party—the defendant—Rojas-Carillo certainly

“anticipated” the sentence he received.       The entire basis for Rojas-Carillo’s objection and

subsequent appeal is that the Government’s recommendation, ratified by the PSI, was to be imposed

on him.

       The Eastern District of Michigan may be using the word “unanticipated” to capture the

situation where parties stipulate to a given interpretation and yet the court, in violation of Rule

11(c)(1)(C), ignores that stipulation. Yet this reading does not entitle Rojas-Carillo to an appeal;

the district court did not ignore any stipulation. Alternatively, “unanticipated” could refer to the

absence of stipulation. But under this reading, exception (A) to the waiver of appeal swallows every

other exception. It would also follow that the only right Rojas-Carillo waived was the right to file

a direct appeal on a new ground. The defendant gives up little: we already review most new grounds

under the deferential plain error standard. See United States v. Barajas-Nunez, 91 F.3d 826, 830 (6th

Cir. 1996).

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United States v. Miguel Rojas-Carillo

       We proceed to the merits because both parties apparently intended that Rojas-Carillo be able

to file this appeal. If a defendant in the Eastern District of Michigan waives only his right to appeal

on new grounds, his Rule 11 Agreement should specifically so state. Otherwise, the Government

might frustrate the intention of the parties by later urging a technical or even common sense

interpretation of the word “unanticipated” upon the appellate court.



                                                 III.

A.     Aggravated Felony for Purposes of Statutory Maximum

       Under 8 U.S.C. § 1326, the sentence for illegal reentry may not exceed two years unless the

alien has a prior aggravated felony, in which case the maximum penalty is 20 years. The district

court’s determination that Rojas-Carillo’s previous crime was an aggravated felony for purposes of

8 U.S.C. § 1326(b) represents an interpretation of that statute, which we review de novo. United

States v. Seaton, 45 F.3d 108, 111 (6th Cir. 1995).

       Rojas-Carillo was convicted of violating MCLA 750.520e(1)(b). This Michigan statute

provides in relevant part that “[a] person is guilty of criminal sexual conduct in the fourth degree

if he or she engages in sexual conduct with another person” under certain circumstances. Among

these circumstances are “force or coercion,” which includes, but is not limited to, the use of a)

physical force, b) the threat of force, c) unethical medical methods, and d) concealment or surprise.

MCLA 750.520(e)(1)(b).

       That Michigan characterizes fourth degree criminal sexual conduct as a “misdemeanor,” see

id., does not withdraw the crime from consideration as a felony for federal sentencing purposes. See

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No. 04-1743
United States v. Miguel Rojas-Carillo

United States v. Aparco-Centeno, 280 F.3d 1084, 1087 (6th Cir. 2002); United States v. Gonzalez-

Vela, 276 F.3d 763, 766-67 (6th Cir. 2001). A felony may be characterized as aggravated for a

variety of reasons. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony for purposes of

immigration law). The litigants focus on “crime[s] of violence (as defined in section 16 of Title 18,

but not including a purely political offense).” 8 U.S.C. § 1101(a)(43)(F). A crime of violence in

this context is either “an offense that has as an element the use, attempted use, or threatened use of

physical force,” or, “any other offense that is a felony and that, by its nature, involves a substantial

risk that physical force . . . may be used in the course of committing the offense.” 18 U.S.C. § 16.

        The district court reasoned that because “force or coercion” was an element of the crime,2

fourth degree criminal sexual conduct contained as an element the use, attempted use, or threatened

use, of force. This may have been an error: “coercion may, but need not, involve force.” United

States v. Arnold, 58 F.3d 1117, 1122 (6th Cir. 1995). Nevertheless, sexual contact by threat or

coercion involves a substantial risk of physical force. See United States v. Campbell, 256 F.3d 381,

396 (6th Cir. 2001) (finding substantial risk of force in sexual contact with a minor of same blood

affinity); cf. United States v. Kaplinsky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc) (“That

deception may be used to effect [a] kidnaping does not erase the ever-present possibility that the

victim may figure out what is going on and decide to resist, in turn requiring the perpetrator to use

actual physical restraint.”).


        2
        The court used the “categorical approach,” whereby a court first looks to the elements of
the crime to determine if force is implicated. Taylor v. United States, 495 U.S. 757 (1990). If the
elements are ambiguous, the court may look to the charging documents but not beyond them (to, for
instance, police documents). See Shepard v. United States, 125 S.Ct. 1254, 1256 (2005).

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No. 04-1743
United States v. Miguel Rojas-Carillo

       Furthermore, any “sexual abuse of a minor” is considered to be an aggravated felony. 8

U.S.C. § 1101(a)(43)(A). Congress has defined the sexual abuse of a minor as “knowingly

engag[ing] in a sexual act with another person who has attained the age of 12 years but not yet the

age of 16 years” by a person “at least 4 years older” than the victim. 18 U.S.C. §2243(a).

Immigration law defines a “sexual act”—as opposed to a “sex act”—broadly. See, e.g., Gonzalez-

Vela, 276 F.3d at 766 (touching bodies of two young girls with sexual intent); United States v.

Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) (touching minor sexually). A sexual act need not

involve force, see, e.g., Uritsky v. Gonzalez, 399 F.3d 728 (6th Cir. 2005) (statutory rape); Mugali

v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) (same), nor even physical contact with the victim, see, e.g.,

United States v. Padilla-Reyes, 247 F.3d 1158, 1160 (11th Cir. 2001) (sexual exposure); In re

Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A. 1999) (same). The key element is that the

perpetrator derive sexual gratification from a person under the age of 16 through some misuse or

maltreatment. Cf. Campbell, 256 F.3d at 396.

       Even if the crime need not involve or directly implicate violence, any sexual conduct using

“force or coercion” against a 14-year-old victim by a 19-year-old presumably constitutes the sexual

abuse of a minor.3 That Rojas-Carillo’s victim was a minor, moreover, is immediately apparent from

the charging document. See Shepard v. United States, 125 S.Ct. 1254, 1256 (2005) (holding that


       3
        In 2001, the Guidelines definition of a crime of violence listed sexual abuse of a minor in
a parenthetical following “forcible sex offenses,” suggesting that the abuse had to involve force.
See United States v. Perez-Valasquez, 67 Fed. Appx. 890, *893 (6th Cir. Jan. 17, 2003) (Cole, J.,
concurring) (unpublished). Rojas-Carillo was sentenced in 2004. By this time, the Guidelines had
been amended to list sexual abuse of a minor separately. See U.S.S.G. § 2L1.2; Perez-Valaquez, 67
Fed. Appx. at *892 n.1 (noting the forthcoming amendment).

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No. 04-1743
United States v. Miguel Rojas-Carillo

a sentencing court may look at charging documents, but not police records, to determine if a felony

was violent for purposes of the Armed Career Criminal Act). Although the victim’s age is listed in

a nolle prossed count, she is also specifically named as the victim in the charge of which Rojas-

Carillo was convicted. Compare United States v. Hargrove, 416 F.3d 486 (6th Cir. 2005) (“The

indictment, which is part of the record in this case, also makes no reference to the age of Hargrove's

stepdaughters at the time of the charged conduct, nor to whether the conduct was coerced or

consensual.”).

        Accordingly, we affirm the district court with respect to the statutory maximum of 20 years.

B.      Crime of Violence for Purposes of Sentencing Guidelines

        In the context of illegal reentry, the Guidelines provide for an 8-level enhancement for a

previous aggravated felony and a 16-level enhancement if that felony was also a crime of violence.

U.S.S.G. § 2L1.2. We review the district court’s legal interpretation of the Guidelines de novo.

Arnold, 58 F.3d at 1120.

        The Guidelines rely on the statutory definition of aggravated felony, detailed above.

U.S.S.G. § 2L1.2. Thus, a total offense level of at least 16 was appropriate. However, the

Guidelines employ a different definition of a “crime of violence.” The definition includes “any

offense under federal, state, or local law that has as an element the use, attempted use, or threatened

use of a physical force against the person of another.” U.S.S.G. § 2L1.2 (Application Note

1(B)(iii)). Yet it does not include felonies that in general involve a substantial risk of physical force.

Compare U.S.S.G. § 2L1.2 (Application Note 1(B)(iii)) with 18 U.S.C. § 16.




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No. 04-1743
United States v. Miguel Rojas-Carillo

        Although the Guidelines definition of a crime of violence is narrower than the statutory

definition in one sense, it is also broader in the sense that it does include the sexual abuse of a minor.

U.S.S.G. § 2L1.2 (Application Note 1(B)(iii)). Sexual abuse of a minor, discussed above, is no

different for Guidelines purposes than it is for statutory purposes. See Gonzalez-Vela, 276 F.3d 763.

        Accordingly, we affirm the district court’s determination that Rojas-Carillo’s crime was a

crime of violence for sentencing purposes.

                                                   IV.

        For the preceding reasons, we AFFIRM the judgement of the district court.




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