                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 02-1727
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                  v.

CARLOS A. VASQUEZ-ABARCA,
                                             Defendant-Appellant.
                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
        No. 01 CR 780-1—Charles P. Kocoras, Chief Judge.
                           ____________
 ARGUED DECEMBER 17, 2002—DECIDED FEBRUARY 14, 2003
           OPINION PUBLISHED JULY 7, 2003Œ
                    ____________


    Before BAUER, CUDAHY, and COFFEY, Circuit Judges.
  COFFEY, Circuit Judge. After Carlos A. Vasquez-Abarca,
a Mexican citizen without legal status in this country,
pleaded guilty to one count of being present in the
United States without permission, see 8 U.S.C. § 1326(a)
and (b)(2), the district court sentenced him to 57 months’
incarceration. On appeal he argues that the court erred
by imposing a 16-level increase in his offense level because


Œ
  Pursuant to Circuit Rule 53, this decision was originally is-
sued as an unpublished order. Upon request, we now issue the
decision as a published opinion.
2                                               No. 02-1727

his prior conviction for aggravated criminal sexual abuse
of a minor was not a “crime of violence.” The court found
that it was a crime of violence and imposed the 16-level
increase. We affirm.
  In June 1996 an Illinois jury convicted Vasquez-Abarca
of aggravated criminal sexual abuse of a minor, see 720
ILCS 5/12-16(c)(1)(i), after he touched the breast of a 12-
year-old girl. Approximately one year later, he was de-
ported to Mexico, and soon thereafter reentered the United
States illegally. In December 1999 Vasquez-Abarca was
convicted in Georgia of criminal trespass; nine months
later, he was convicted in Illinois of failing to register as
a sex offender. In September 2001 agents of the Immigra-
tion and Naturalization Service located Vasquez-Abarca
at his home in Cicero and took him into custody for being
in the country illegally.
  One month later Vasquez-Abarca was charged by infor-
mation with being present in the United States without
permission in violation of § 1326(a) and (b)(2). Vasquez-
Abarca eventually pleaded guilty to this charge after
entering into a written plea agreement that allowed
him to contest the question of whether the underlying
conviction that led to his deportation qualified as a “crime
of violence” justifying a 16-level increase in his offense
level under § 2L1.2(b)(1)(A) of the United States Sentenc-
ing Guidelines. Vasquez-Abarca contested this at the sen-
tencing hearing, and the court, over his objection, concluded
that his underlying conviction was for a “crime of vio-
lence,” and properly applied a 16-level increase in his of-
fense level.
  On appeal Vasquez-Abarca argues that he should not
have received this 16-level increase in his offense level.
Instead, he claims that his offense level should only have
been increased by eight levels because the crime he com-
mitted qualified as an “aggravated felony,” justifying an
No. 02-1727                                                3

eight-level increase under U.S.S.G. § 2L1.2(b)(1)(C). The
trial court rejected his argument and increased his of-
fense level by 16 levels rather than eight because his
conviction was for a “crime of violence.” Specifically, the
court concluded that the crime for which he previously
had been convicted, aggravated sexual abuse of a minor,
qualified as a “crime of violence” because the crime of
“sexual abuse of a minor” is explicitly listed as a crime
of violence in the application notes of § 2L1.2(b)(1)(C).
The court’s determination that his conviction for the
crime of aggravated sexual abuse of a minor was for a
“crime of violence” under § 2L1.2 is a legal conclusion
subject to de novo review. United States v. Martinez-Carillo,
250 F.3d 1101, 1103 (7th Cir.), cert. denied, 122 S. Ct. 285
(2001). Section 2L1.2(a) mandates a base offense level of
eight for an alien’s illegal entry, United States v. Chavez-
Chavez, 213 F.3d 420, 421 (7th Cir. 2000), but reentry after
conviction for a “crime of violence” authorizes an adjust-
ment of 16 levels. Under Application Note 1(B)(ii) of
§ 2L1.2, a “crime of violence” includes crimes that involve
physical force, as well as certain enumerated offenses:
  “Crime of violence”—
        (I) means an 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; and
        (II) includes murder, manslaughter, kidnapping,
        aggravated assault, forcible sex offenses (including
        sexual abuse of a minor), robbery, arson, extortion,
        extortionate extension of credit, and burglary of a
        dwelling.
U.S.S.G. § 2L1.2 comment. (n.1(B)(ii)) (emphasis added).
The court applied the 16-level upward adjustment after
finding that Vasquez-Abarca had been convicted of one
of the crimes listed in subparagraph II.
4                                               No. 02-1727

   Vasquez-Abarca mistakenly argues that a prior convic-
tion is only for a “crime of violence” if it involved force
under subparagraph I of Application Note 1(B)(ii), and
is one of the offenses enumerated in subparagraph II.
But Application Note 1(B)(ii) would not make sense if
it required a prior conviction to fall within both subpara-
graphs. Vasquez-Abarca’s reading ignores the word “in-
cludes” contained in subsection II—an illustrative term,
see Richardson v. Nat’l City Bank of Evansville, 141 F.3d
1228, 1232 (7th Cir. 1998), and subparagraph II is ren-
dered superfluous under Vasquez-Abarca’s interpretation.
See Waeltz v. Delta Pilots Ret. Plan, 301 F.3d 804, 808 (7th
Cir. 2002) (courts are loath to adopt constructions that
render a statutory provision superfluous); see also TRW
Inc. v. Andrews, 122 S. Ct. 441, 449 (2001). According to
Vasquez-Abarca’s reasoning, certain crimes enumerated
under subparagraph II that do not necessarily involve
physical force would not qualify as a “crime of violence,”
effectively nullifying their inclusion in the commentary.
Thus, the offenses listed in subparagraph II do not re-
quire the prosecution to establish actual, attempted, or
threatened use of force, for the precise reason that they
are explicitly listed. United States v. Rayo-Valdez, 302 F.3d
314, 317 (5th Cir.), cert. denied, 123 S. Ct. 694 (2002); see
also United States v. Rutherford, 54 F.3d 370, 378 (7th
Cir. 1995) (Easterbrook, J. concurring) (noting that the
Commission dispensed with the need for judicial classifica-
tion of offenses enumerated as “crimes of violence” under
U.S.S.G. § 4B1.2).
  This court has not addressed the issue, but the same
argument set forth by Vasquez-Abarca has been recently
rejected by two sister circuits; the Fifth, in Rayo-Valdez;
and the Eighth, in United States v. Gomez-Hernandez, 300
F.3d 974 (8th Cir. 2002), cert. denied, 2003 WL 99711
(Jan. 13, 2003) (No. 02-7705). In Rayo-Valdez, the court
affirmed a 16-level upward adjustment for an illegal alien
No. 02-1727                                              5

who had been previously convicted of sexual abuse of a
minor. Rayo-Valdez, 302 F.3d at 320. In doing so, the
Fifth Circuit noted that under the plain language of Ap-
plication Note 1(B)(ii) of § 2L1.2, a “crime of violence”
means those crimes described in subparagraph I and
includes those crimes set forth in subparagraph II. Id. at
316. In Gomez-Hernandez, the court held that under the
plain meaning of Application Note 1(B)(ii), the offenses
enumerated in subparagraph II do not have to involve
force to warrant an upward adjustment. The court noted
that although the term “and” is usually conjunctive, the
Sentencing Commission’s use of the word “includes”
requires the term to be construed disjunctively; otherwise
subparagraph II would be rendered superfluous. Gomez-
Hernandez, 300 F.3d at 979. It is a clear application
of common sense that a crime designated as a crime of
violence in Application Note 1(B)(ii) is indeed a “crime of
violence.”
  Vasquez-Abarca further argues that a conjunctive
meaning must have been intended because the prior
definition of “crime of violence” had two subparts con-
nected by “or.” See U.S.S.G. § 4B1.2(a), incorporated by
reference in § 2L1.2(n.1) (2000). Under that provision, a
“crime of violence” involves force, or is one of several
enumerated offenses:
   (a) the term crime of violence means any offense under
   federal or state law, punishable by imprisonment for
   a term exceeding one year, that—
       (1) has as an element the use, attempted use, or
       threatened use of physical force against the person
       of another, or
       (2) is burglary of a dwelling, arson, or extortion,
       involves use of explosives, or otherwise involves
       conduct that presents a serious potential risk of
       physical injury.
6                                              No. 02-1727

U.S.S.G. § 4B1.2(a). The district court’s interpretation, as
well as the decisions of the Eighth and Fifth Circuits, is
the most logical reading for it allows the two provisions
to be read consistently, see Gomez-Hernandez, 300 F.3d
at 979, and thus there is no reason to believe that the
Commission wanted to significantly alter the definition of
“crime of violence” when instituting the recent amend-
ment. See U.S.S.G., Manual, App. C Supp., Amendment
632; Rayo-Valdez, 302 F.3d at 316 n.2.
                                                AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-7-03
