12-592-cr
United States v. Funez-Pineda


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 29th day of January, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                   Appellee,

                                v.                                        No. 12-592-cr

OSCAR ENRIQUE FUNEZ-PINEDA,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          BARCLAY T. JOHNSON, for Michael L.
                                                  Desautels, Federal Public Defender, District of
                                                  Vermont, Burlington, Vermont.


APPEARING FOR APPELLEE:                           WENDY L. FULLER, (Gregory L. Waples, on
                                                  the brief), Assistant United States Attorneys, for
                                                  Tristram J. Coffin, United States Attorney for
                                                  the District of Vermont, Burlington, Vermont.
       Appeal from a judgment of the United States District Court for the District of

Vermont (Christina Reiss, Chief Judge).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 8, 2012, is AFFIRMED.

       Defendant Oscar Enrique Funez-Pineda stands convicted on a guilty plea of illegal

reentry after deportation following conviction for an aggravated felony. See 8 U.S.C.

§ 1326(a). Pursuant to reservation, he appeals the district court’s refusal to dismiss his

indictment, arguing that his prior Colorado conviction for sexual assault on a child, see Colo.

Rev. Stat. Ann. § 18-3-405.3(1), does not categorically qualify as an aggravated felony for

purposes of removal. We review the denial of a motion to dismiss the indictment de novo.

See United States v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). In conducting

that review here, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       Title 8 U.S.C. § 1326(d) prohibits collateral attack on a removal order except where

the defendant demonstrates that (1) he exhausted administrative remedies, (2) he was denied

the opportunity for judicial review, and (3) the removal order was fundamentally unfair. See

United States v. Calderon, 391 F.3d 370, 374 (2d Cir. 2004). The government agrees that

only the third requirement is at issue on this appeal. To satisfy that requirement, the

defendant must show “both a fundamental procedural error and prejudice resulting from that

error.” United States v. Cerna, 603 F.3d 32, 40–41 (2d Cir. 2010); see United States v.


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Fernandez-Antonia, 278 F.3d at 159 (stating that prejudice requires showing that “absent the

procedural errors,” alien “would not have been removed”).

       Funez-Pineda argues that the Colorado statute under which he stands convicted, Colo.

Rev. Stat. Ann. § 18-3-405.3(1), does not categorically qualify as an aggravated felony for

purposes of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for removal of alien

convicted of an aggravated felony); id. § 1101(a)(43)(A), (U) (identifying sexual abuse of

a minor as aggravated felony). In assessing this claim, we look to the definition of sexual

abuse in 18 U.S.C. § 3509(a), see Mugalli v. Ashcroft, 258 F.3d 52, 58, 60 (2d Cir. 2001),

and ask whether “every set of facts” violating the Colorado statute satisfies § 3509(a)’s

definition of sexual abuse of a minor, Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119,

121–22 (2d Cir. 2011).1

       The Colorado statute states that a person “in a position of trust” with respect to “a

child less than eighteen years of age” who “knowingly subjects” that child “to any sexual

contact commits sexual assault on a child.” Colo. Rev. Stat. Ann. § 18-3-405.3(1). Colorado

defines sexual contact to mean “the knowing touching of the victim’s intimate parts by the

actor, or of the actor’s intimate parts by the victim.” Id. § 18-3-401(4). Such conduct clearly

falls within the relevant federal definition of sexual abuse of a minor. See 18 U.S.C. §


       1
        Insofar as Funez-Pineda challenges this court’s decision to defer to the Department
of Homeland Security’s reliance on 18 U.S.C. § 3509(a) to identify crimes constituting
sexual abuse of a minor, this panel is bound by our Mugalli/Oouch precedent approving such
deference until reversed by the Supreme Court or this court en banc. See Jones v. Coughlin,
45 F.3d 677, 679 (2d Cir. 1995).

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3509(a)(8) (defining sexual abuse to include “employment, use, persuasion, inducement,

enticement, or coercion of a child to engage in . . . sexually explicit conduct”); see also id.

§ 3509(a)(9)(A) (defining sexually explicit conduct to include “intentional touching, either

directly or through clothing, of the genitalia” with “intent to abuse, humiliate, harass,

degrade, or arouse or gratify sexual desire of any person”).

       In urging otherwise, Funez-Pineda contends that the Colorado statute reaches more

broadly than federal law to criminalize consensual conduct between teenagers of the same

age.2 In fact, nothing in 18 U.S.C. § 3509(a) requires an age differential between perpetrator

and victim to demonstrate sexual abuse of a minor. See Ganzhi v. Holder, 624 F.3d 23, 30

(2d Cir. 2010) (holding that “aggravated felony of sexual abuse of a minor requires only that

a person: (1) engage in any one of a number of proscribed sexual acts, specifically including

sexual intercourse; (2) with a person under the age of eighteen” (emphasis added)); Oouch

v. U.S. Dep’t of Homeland Sec., 633 F.3d at 126 (holding that N.Y. Penal Law § 263.05,

which does not require age differential, constitutes “sexual abuse of a minor” and, therefore,

aggravated felony for purposes of removability). Nor is there any discernable difference

between the way the relevant federal and Colorado statutes treat abusive actors—for whom

age is not defined—and the way they treat victims of abuse. See United States v. Austin, 426


       2
        Because Funez-Pineda was 21 and his victim 13 at the time of the Colorado crime
of conviction, this hypothetical concern plainly did not arise in his case. On a categorical
review, however, we look to the “minimum criminal conduct necessary to sustain a
conviction under a given statute” and not to the particular facts of defendant’s case. James
v. Mukasey, 522 F.3d 250, 254 (2d Cir. 2008).

                                              4
F.3d 1266, 1274 (10th Cir. 2005) (noting that “Colorado has determined eighteen to be the

age of consent”); Colorado v. Leske, 957 P.2d 1030, 1039 (Colo. 1998) (recognizing that

“person under the age of eighteen is a child”); 18 U.S.C. § 3509(a)(2) (defining “child” as

“person who is under the age of 18”).

         Further, Funez-Pineda’s argument that the Colorado statute can apply to purely

consensual conduct while the federal statute cannot is meritless. The federal statute, by

including “persuasion, inducement, [and] enticement” within its prescription, plainly reaches

means by which a person may appear to secure a child’s “consent” to sexual relations.

Indeed, this reach may be broader rather than narrower than that of the Colorado statute,

which applies only to a person in a position of trust relative to the child whom the trustee

subjects to sexual conduct. See generally Pellman v. Colorado, 252 P.3d 1122 (Colo. 2011)

(recognizing that position of trust affords opportunity to manipulate child to submit to sexual

conduct). In any event, neither statute can reasonably be construed to exempt a child’s

purportedly consensual sexual contact with a person exercising a position of trust over the

child.

         Accordingly, like the district court, we conclude that there was nothing fundamentally

unfair in Funez-Pineda’s removal so as to warrant dismissal of his indictment for illegal

reentry.




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      We have considered all of Funez-Pineda’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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