                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      June 19, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                    No. 05-2218
                                                         (D . N.M .)
 FRANCISCO SERNA-GOM EZ, also                  (D.Ct. No. CR-04-2225 M CA)
 known as Jose Garcia, also known as
 Fernando Larara, also known as Jesus
 Garcia,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Francisco Serna-Gomez pled guilty to illegal reentry into the

United States of a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). He now appeals his seventy-

month sentence, contending the district court erred in characterizing his prior

conviction as a “crime of violence” and failing to reduce his sentence on grounds

he reentered the United States for the purpose of securing a better life for his

children. W e exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291 and affirm M r. Serna-Gomez’s conviction and sentence.



      On September 7, 2004, M r. Serna-Gomez was arrested for illegally entering

the United States after deportation to M exico. Following his guilty plea to

reentry of a deported alien previously convicted of an aggravated felony, a

probation officer prepared a presentence report calculating his base offense level

at eight under U.S. Sentencing Guidelines M anual (USSG ) § 2L1.2(a) and

applying a sixteen-level upward adjustment based on his prior Illinois conviction

of aggravated criminal sexual abuse of a minor, which the probation officer

categorized as a crime of violence pursuant to USSG § 2L1.2(b)(1)(A). After

applying a three-level downward adjustment for acceptance of responsibility and

factoring in M r. Serna-Gomez’s criminal history at Category V, the probation

officer calculated M r. Serna-Gomez’s sentencing range at seventy to eighty-seven

months imprisonment.

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      Based on the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), which held the sentencing guidelines are only advisory in nature,

M r. Serna-Gomez requested a deviation from the guideline range on grounds he

returned to the United States to provide a living for the benefit of his children, he

was unaware of the illegality or penalties of reentering the United States after his

deportation, and his prior state conviction did not constitute a “crime of violence”

for the purpose of a sixteen-level upward adjustment. M r. Serna-Gomez asserted

his prior conviction should not be categorized as a “crime of violence” because:

1) no presumption of violent intent, or mens rea, exists in the applicable Illinois

statute; 2) he was not aware his conduct was against the law; and 3) the encounter

was consensual, given his assertion the parents of the under-aged girl gave him

permission to see her, and he later married her and fathered her child. 1



      The district court adopted the findings and recommendations in the

presentence report, concluding M r. Serna-Gomez’s prior conviction for

aggravated criminal sexual abuse was a “crime of violence” and that while the

sentencing guidelines are only advisory, they provided appropriate guidance in

the instant case. The district court determined a sentence at the low end of the



      1
         W hile the record on appeal does not contain any evidence supporting M r.
Serna-Gomez’s claim he married the minor girl and fathered their child, on appeal
he has provided a copy of their marriage certificate showing he married her
several years after his arrest for his aggravated sexual abuse of her.

                                          -3-
sentencing range at seventy months satisfied the considerations provided in 18

U.S.C. § 3553, including the nature and circumstances of the offense, M r. Serna-

Gomez’s history and characteristics, the seriousness of the crime, respect for the

law, just punishment for the offense, adequate deterrents to future criminal

conduct, and protection of the public from further criminal conduct, while also

providing M r. Serna-Gomez with needed medical, vocational, social, or

educational training.



      On appeal, M r. Serna-Gomez continues to argue the Illinois offense he pled

guilty to is not a “crime of violence” because it requires neither intent to use or

threaten physical force nor that the sexual contact be nonconsensual. In support,

he relies on Leocal v. Ashcroft, in which the Supreme Court held an alien’s

conviction under Florida law, which required no mens rea for driving under the

influence of alcohol and causing serious bodily injury in an accident, was not a

“crime of violence” under 18 U.S.C. § 16 of the Comprehensive Crime Control

Act, which requires the “use of physical force” against another rather “than the

merely accidental or negligent conduct involved in a DUI offense.” 543 U.S. 1,

4-5, 7, 9-11, 13 (2004). M r. Serna-Gomez also renews his claim a seventy-month

sentence, enhanced as a result of his prior Illinois conviction, is unreasonable for

the mere offense of reentry after deportation and because he reentered the country

for the worthy cause of providing economic support for his children.

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      In this case, the applicable sentencing guideline suggests the base offense

level for unlaw fully entering or remaining in the United States is eight and should

be increased sixteen levels for a prior “crime of violence.” See USSG

§ 2L1.2(a)(b)(1)(A)(ii). As M r. Serna-Gomez points out, pursuant to Booker, the

sentencing guidelines are now advisory, rather than mandatory, but continue to be

a factor the district court must consider in imposing a sentence. See United States

v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). W e review de novo

a district court’s determination a prior offense qualifies as a “crime of violence”

under U SSG § 2L1.2(b)(1)(A)(ii). See United States v. Torres-Ruiz, 387 F.3d

1179, 1180-81 (10th Cir. 2004). “In interpreting a guideline, we look at the

language in the guideline itself, as w ell as the ‘interpretative and explanatory

comm entary to the guideline’ provided by the Sentencing Commission.” Id. at

1181 (quotation marks and citation omitted). As an aid in determining whether an

offense qualifies as a “crime of violence,” a commentary note to § 2L1.2 defines a

“crime of violence” as explicitly including the offense of “sexual abuse of a

minor” 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.” USSG § 2L1.2 cmt. n.1(B)(iii). W hen a defendant contests the

characterization of his prior offense as a “crime of violence” under the applicable

guidelines, we follow a categorical approach in which we look “only to the fact of

the conviction and the statutory definition of the prior offense” for the purpose of

                                          -5-
examining sources of undisputed information, rather than engaging in a fact-

finding inquiry on a prior offense previously adjudicated. United States v. Austin,

426 F.3d 1266, 1270 (10th Cir. 2005), cert. denied, 126 S. Ct. 1385 (2006). Only

if the statute in question is ambiguous, because it reaches conduct both violent

and nonviolent, do we look to the charging paper, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented. Id. at 1271 (quotation marks and citation omitted).



      In this case, M r. Serna-Gomez pled guilty to the Illinois offense of

aggravated criminal sexual abuse, in violation of Chapter 720 Illinois Compiled

Statutes § 5/12-16(d). In Illinois, “aggravated criminal sexual abuse” is defined,

in relevant part, as “an act of sexual penetration or sexual conduct with a victim

who was at least 13 years of age but under 17 years of age and the accused was at

least 5 years older than the victim.” Ch. 720 Ill. Comp. Stat. § 5/12-16(d).



      After reviewing the unambiguous language in the applicable Illinois statute,

together with the advisory criteria in the sentencing guidelines and our case law,

it is clear M r. Serna-Gomez cannot prevail in arguing his prior offense was not a

“crime of violence” because the statute did not include the mens rea, or intent to

use or threaten force. His argument is plainly precluded by our decision in

United States v. M unguia-Sanchez, in w hich we held an offense qualifies as a

                                          -6-
“crime of violence” if it involves either the use of force or one of the specifically

enumerated offenses under commentary note 1(B)(iii), which include the offense

of “sexual abuse of a minor.” 365 F.3d 877, 879-80 (10th Cir.), cert. denied, 543

U.S. 896 (2004). Therefore, even though the Illinois statute at issue did not

include as an element the intent to use or threaten force, M r. Serna-G omez’s

conduct falls squarely under the specifically enumerated offense of “sexual abuse

of a minor” under the applicable commentary note and, thus, qualifies as a “crime

of violence.” In addition, M r. Serna-Gomez’s attempt to qualify his offense as

one involving consensual sex is an impermissible effort to reconstruct his plea

after the fact. The applicable Illinois statute does not require nonconsensual

sexual contact for a conviction. To require such a finding now would not only

contravene that statute but require an impermissible fact-finding inquiry into a

prior conviction. See Austin, 426 F.3d at 1280. M oreover, we have held “a

conviction for sexual assault on a child constitutes a crime of violence [under

§ 2L1.2(b)(1)(A)(ii)] regardless of the victim’s alleged consent.” M unguia-

Sanchez, 365 F.3d at 878. W hile M r. Serna-Gomez relies on Leocal v. Ashcroft to

suggest his prior offense does not constitute a “crime of violence,” that case 1)

involved the prior offense of driving under the influence, which is not a

specifically enumerated offense under commentary note 1(B)(iii); 2) concerned

negligent or accidental conduct not applicable to M r. Serna-Gomez’s offense of

sexual abuse of a minor; and 3) applied different federal and state statutes which

                                          -7-
are not at issue here. See generally 543 U.S. at 4-5, 7, 9-11, 13.



      Having determined M r. Serna-Gomez’s prior offense constituted a “crime

of violence,” w e turn to M r. Serna-Gomez’s claim his seventy-month sentence is

unreasonable, given the underlying crime merely involved illegal reentry and the

fact he reentered the United States for the purpose of benefitting his children.

Since Booker, we review for reasonableness the sentence imposed and have

determined a presumption of reasonableness attaches to a sentence, like here,

which is within the correctly-calculated sentencing guideline range. See Kristl,

437 F.3d at 1053-54. A defendant may rebut the presumption attached to a

sentence within the guideline range by demonstrating the sentence is unreasonable

when viewed against the factors delineated in 18 U.S.C. § 3553, id., which

include consideration of whether the sentence imposed reflects the seriousness of

the offense, promotes respect for the law, provides just punishment, affords

adequate deterrence to criminal conduct, and protects the public from further

crimes of the defendant. 18 U.S.C. § 3553(a)(2)(A)-(C). In addition, the

sentencing guidelines advise “family ties and responsibilities ... are not relevant

in determining whether a sentence should be below the applicable guideline

range.” U SSG § 5H1.6. M ore specifically, we have determined family

responsibilities are a discouraged factor in considering a downward adjustment,

which the district court should consider only in the most extraordinary cases. See

                                          -8-
United States v. M cClatchey, 316 F.3d 1122, 1130 (10th Cir. 2003).



      In this case, M r. Serna-Gomez entered the country illegally after being

deported, following his guilty plea to aggravated sexual abuse of a minor —

neither of which is a trifling offense. In addition, M r. Serna-Gomez has not

directed us to any fact that renders the application of the guidelines inappropriate

or egregious. The fact he later married the minor victim he sexually abused does

not mitigate the fact he committed the felony offense of aggravated sexual abuse

of a m inor, to w hich he pled guilty. In addition, M r. Serna-Gomez has not shown

why he should be treated differently than others who, like him, illegally reentered

the country after deportation, or why his family responsibilities present an

extraordinary case deserving of a downward adjustment.



      Finally, regardless of whether M r. Serna-Gomez did not understand his

reentry into the U nited States w as illegal or the consequences of his reentry, we

have held “nothing more than a showing of general intent is required,” and “the

government need not show that [the] defendant willfully and knowingly engaged

in criminal behavior, but only that the defendant’s acts were willful and knowing

— that [he] willfully and know ingly reentered the U nited States and that he did so

without the Attorney General’s permission.” United States v. Gutierrez-Gonzalez,

184 F.3d 1160, 1165 (10th Cir. 1999) (quotation marks and citation omitted).

                                          -9-
Given M r. Serna-Gomez pled guilty to illegal reentry, which includes an intent to

willfully and knowingly reenter the country, his argument he did not understand

his reentry was criminal or involved penalties is irrelevant.



      Under the circumstances presented, it was not unreasonable for the district

court to determine a sentence imposed at the bottom of the applicable guideline

range sufficiently reflected the factors or considerations in 18 U.S.C. § 3553, and

M r. Serna-G omez has not otherwise demonstrated his sentence is unreasonable

when viewed against these factors.



      For these reasons, we A FFIRM M r. Serna-Gomez’s conviction and

sentence.



                                       Entered by the C ourt:

                                       W ADE BRO RBY
                                       United States Circuit Judge




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