                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-8-2004

USA v. Billy
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2249




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"USA v. Billy" (2004). 2004 Decisions. Paper 851.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 03-2249
                                    ___________

                          UNITED STATES OF AMERICA,

                                                     Appellee

                                           v.

                        WANGUE BILLY, a/k/a Billy Wangue

                                                   Appellant

                                    ___________

                    On Appeal from the United States District Court
                                 of the Virgin Islands

                District Court Judge: The Honorable Thomas K. Moore
                                  (No. 02-cr-00126-01)
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 26, 2004

               Before: FUENTES, SMITH & GIBSON, Circuit Judges.*

                            (Opinion Filed: April 8, 2004 )

                                       _______




  *
   The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
                                _______________________

                                OPINION OF THE COURT
                               ________________________
FUENTES, Circuit Judge:


       Appellant Wangue Billy (“Billy”) was convicted in Florida state court in 1999 of

performing lewd and lascivious acts in the presence of a minor after pleading nolo

contendere to the charges. The state of Florida charged that Billy, then 27, took a 14-

year old girl to two motels between April and May 1999 and on both occasions had

consensual sexual intercourse with her. Billy was deported to his native Haiti following

this conviction, but was arrested in St. Thomas, U.S. Virgin Islands in 2002 while trying

to reenter the continental United States. Billy did not contest the fact that he did not have

permission from the Attorney General to reenter the country. In sentencing Billy for

illegal reentry, the District Court applied an eight level increase set forth in U.S.S.G. §

2L1.2(b)(1)(C), which allows for such an increase when a defendant has been

“previously deported, or unlawfully remained in the United States, after a conviction for

an aggravated felony.”


       Billy appeals from this eight level increase because, he argues, the underlying

Florida conviction was not an “aggravated felony” under the United States Sentencing

Guidelines or 8 U.S.C. § 1101, a statute classifying certain crimes as aggravated felonies

for the purposes of immigration and deportation (and which defines an aggravated felony


                                              2
as, among other things, sexual abuse of a minor). Because we disagree with Billy’s

arguments, we will affirm the sentence imposed by the District Court.


       In 1999, when Billy was convicted in Florida, the relevant statute stated:


       A person who:
       ...
       (4) Knowingly commits any lewd or lascivious act in the presence of any
       child under the age of 16 years; without committing the crime of sexual
       battery, commits a felony.


Fla. Stat. ch. 800.04(4)(1998). In support of his argument that conviction under this

statute does not constitute an aggravated felony, Billy notes that the Sentencing

Guideline applied by the District Court incorporates the definition of “aggravated felony”

from 8 U.S.C. § 1101(a)(43)(A), which includes in its definition “murder, rape, or sexual

abuse of a minor.” Billy points out that although Congress did not define sexual abuse in

this provision, it did define the term in 1986 when it created the offense “sexual abuse of

a minor or ward” in 18 U.S.C. § 2243. Billy argues that because the definition of sexual

abuse in § 2243 contains a requirement that there be physical sexual contact with a

minor, and because the Florida provision under which he was convicted did not require

such proof, his conviction does not fall within the definition of sexual abuse set forth by

Congress.


       Although this is a clever argument, we find it unconvincing, and instead are

                                             3
persuaded by the reasoning of the Court of Appeals for the Eleventh Circuit in United

States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001). Padilla, a native and citizen of

Honduras who had previously been deported and illegally returned to the United States,

pleaded guilty to illegal reentry. Prior to his deportation, Padilla was charged with

violation of Florida Statute § 800.04, “Lewd, lascivious, or indecent assault or act upon

or in presence of child; sexual battery,” the same statute at issue here. Like Billy, Padilla

pleaded nolo contendere to the charge. The district court concluded that the conviction

for lewd assault constituted an aggravated felony and therefore applied an enhancement

to Padilla’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (the court was

applying an older version of the Guidelines). 247 F.3d at 1159. The Eleventh Circuit

held that the definition of “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43) includes a

violation of Florida Statute § 800.04, regardless of whether there is evidence in the

record that the defendant actually physically touched the victim. Id. at 1164. Padilla had

made the same argument that Billy raises here, that the courts should look to Congress’s

definition of sexual abuse in 18 U.S.C. § 2241 et seq., but the Eleventh Circuit rejected

that argument, noting that in 8 U.S.C. § 1101(a)(43), where Congress intended an

aggravated felony to depend on federal statutory law, it explicitly included the statutory

cross-reference in the subsection. It did not make any reference to 18 U.S.C. § 2241, and

therefore the Eleventh Circuit concluded that Congress did not intend such a cross-

reference. We find this approach persuasive, and also note that Congress was probably


                                             4
aware that many of the underlying deportable convictions for sexual abuse would be state

convictions, and perhaps for that reason purposefully omitted a reference to federal

substantive law.


       We also agree with the Eleventh Circuit that the language in § 1101(a)(43) is

“fairly self-evident,” thereby obviating the need to resort to other statutory language.

Padilla-Reyes, 247 F.3d at 1163. While we agree with Billy that the Florida statute

encompasses acts involving physical contact as well as acts that do not, we disagree that

a conviction under the statute does not therefore constitute sexual abuse of a minor.

Rather, the words “sexual abuse” convey that the perpetrator’s intent in committing the

offense is to achieve “libidinal gratification,” which does not necessarily require physical

contact. Id. For these reasons, we are not persuaded that we must look outside the

language of § 1101(a)(43) in this case, and we conclude that Florida’s lewd and

lascivious conduct statute does encompass sexual abuse.


       Because a violation of Florida Statute § 800.04 qualifies as “sexual abuse of a

minor” under 8 U.S.C. § 1101(a)(43)(A), the District Court did not err in applying an

eight-level enhancement for a prior aggravated felony conviction pursuant to U.S.S.G. §

2L1.2(b)(1)(C). The judgment of the District Court is therefore affirmed.




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