247 F.3d 1158 (11th Cir. 2001)
UNITED STATES of America, Plaintiff-Appellee,v.Brijido PADILLA-REYES, Defendant-Appellant.
No. 00-10504.
United States Court of Appeals, Eleventh Circuit.
April 11, 2001.April 23, 2001.

Appeal from the United States District Court for the Southern District of  Florida. (No. 99-00246-CR-ASG), Alan Stephen Gold, Jr., Judge.
Before WILSON, KRAVITCH and COX, Circuit Judges.
COX, Circuit Judge:


1
Brijido Padilla-Reyes (Padilla) pleaded guilty to a one-count indictment  charging him with reentering the United States after deportation without the  consent of the Attorney General of the United States, in violation of 8 U.S.C.   1326. He appeals his sentence.

I. FACTS AND PROCEDURAL HISTORY

2
Prompted by reports from the Florida Department of Corrections that Padilla was  a foreign-born inmate, the Immigration and Naturalization Service (INS)  conducted an investigation which revealed that Padilla was in fact a native and  citizen of Honduras who had previously been deported from the United States.  Following an INS interview in which Padilla admitted the earlier deportation,  Padilla was indicted for violation of 8 U.S.C.  1326, which imposes criminal  penalties on any alien who has been deported and who thereafter "enters,  attempts to enter, or is at any time found in, the United States" without  receiving permission of the Attorney General. 8 U.S.C.  1326(a)(2). Padilla  pleaded guilty to the charge.


3
Preparation of Padilla's pre-sentence investigation report revealed additional  facts. Prior to his earlier deportation, Padilla was charged by information with  violation of Florida Statute  800.04, "Lewd, lascivious, or indecent assault or  act upon or in presence of child; sexual battery." See Fla. Stat. Ann.  800.04  (1987). Padilla pleaded nolo contendere to the charge, a second degree felony  under Florida law, and he was sentenced to one year probation with the  requirement that he serve sixty days in jail. Concluding that Padilla's  conviction1 for lewd assault was an "aggravated felony" because it constituted  "sexual abuse of a minor" under 8 U.S.C.  1101(a)(43)(A), the district court  applied a sixteen-level enhancement to Padilla's base offense level pursuant to  U.S.S.G.  2L1.2(b)(1)(A). Padilla objected to the enhancement, arguing that his  lewd assault conviction did not fit within the "sexual abuse of a minor"  category. The district court overruled Padilla's objections, applied a  three-level reduction for acceptance of responsibility, and sentenced Padilla to  ninety months imprisonment.

II. ISSUES ON APPEAL

4
Padilla presents two issues on appeal. Padilla challenges the district court's  determination that he is subject to a sixteen-level enhancement to his base  offense level based on a previous conviction for an aggravated felony. See  United States Sentencing Commission, Guidelines Manual,  2L1.2(b)(1)(A) (Nov.  1998). In order to resolve this issue, we must determine whether Florida Statute   800.04 constitutes the aggravated felony "sexual abuse of a minor" under 8  U.S.C.  1101(a)(43)(A), as referenced by U.S.S.G.  2L1.2. Padilla also argues  that because his ninety-month sentence exceeds 8 U.S.C.  1326(a)'s statutory  maximum, the sentence violates the rule established by Apprendi v. New Jersey,  530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

III. STANDARD OF REVIEW

5
We review de novo the district court's interpretation of criminal statutes and  sentencing guidelines. United States v. Lazo-Ortiz, 136 F.3d 1282, 1284 (11th  Cir.1998).

IV. CONTENTIONS OF THE PARTIES
A. The Aggravated Felony Issue

6
Padilla contends that in order to determine whether violation of Florida Statute  800.04 constitutes an aggravated felony for purposes of the sentencing  enhancement of U.S.S.G.  2L1.2(b)(1)(A), we must consider only the statutory  definition of the prior conviction, and determine if the full range of conduct  encompassed by the Florida lewd assault statute fits within the aggravated  felony category "sexual abuse of a minor." Padilla maintains that "sexual abuse  of a minor" is an ambiguous term, primarily because the language does not  indicate whether physical contact is a necessary element of the offense. Because  of this, Padilla argues we must look beyond the plain language to alleviate the  ambiguity.


7
Padilla locates the meaning of "sexual abuse of a minor" in federal law, noting  that before Congress amended  1101(a)(43) to include this offense, it had  created a comprehensive set of sexual abuse statutes elsewhere in the Code. See  18 U.S.C.  2241 et seq. Padilla deduces that Congress had the older sexual  abuse statutes in mind when it amended the aggravated felony category, and  intended the meaning of "sexual abuse of a minor" to adopt the definitions in  these statutes. Padilla also notes that there is no plain language in   1101(a)(43)(A) indicating that this body of law should not apply. Finally,  because the federal sexual abuse statutes all require physical contact with the  victim, whereas the Florida lewd assault statute does not, Padilla concludes  that  800.04 does not categorically constitute "sexual abuse of a minor" under  8 U.S.C.  1101(a)(43).2


8
The Government responds that there is no federal definition of "sexual abuse of  a minor" in the context of aggravated felonies in the immigration laws. In  support of this argument, the Government notes that over half of the listed  aggravated felonies in  1101(a)(43) contain cross-references to other sections  of the United States Code, whereas the "sexual abuse of a minor" subsection does  not. See 8 U.S.C.  1101(a)(43)(A). From this the Government concludes that  where Congress intended an aggravated felony subsection to depend on federal  statutory law, it explicitly included the statutory cross-reference in the  subsection. In the Government's view, absence of a cross-reference indicates an  intention to rely on the plain meaning of the terms. The Government concludes  that  800.04 clearly meets the plain meaning of "sexual abuse of a minor."

B. The Apprendi Issue

9
Padilla contends that the statutory scheme of 8 U.S.C.  1326 creates two  separate offenses under two sections. In Padilla's view,  1326(a) makes it  illegal for a previously deported alien to reenter the United States, with a  statutory maximum of two years, whereas  1326(b)(2) makes it illegal for a  previously deported alien with a prior aggravated felony conviction to reenter  the United States, with a statutory maximum of twenty years. Padilla argues that  the indictment simply charged him with illegally reentering the United States  after having been deported, but did not charge that the deportation was  subsequent to a conviction for an aggravated felony.3 Padilla concludes that the  indictment necessarily charged the  1326(a) offense, and not the  1326(b)(2)  offense. Because Padilla's ninety month sentence exceeds the two year statutory  maximum of  1326(a), he contends that his sentence violates the rule of  Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),  that "any fact that increases the penalty for a crime beyond the prescribed  statutory maximum must be submitted to a jury, and proved beyond a reasonable  doubt." Apprendi, 120 S.Ct. at 2362-63. Padilla argues that Apprendi requires  vacatur of his sentence and a remand for re-sentencing within the two-year  statutory maximum contained in  1326(a).


10
The Government's response is simply that Padilla has left out the exception to  the Apprendi rule, which, when the first clause is properly appended, reads  "[o]ther than the fact of a prior conviction, any fact that increases the  penalty for a crime beyond the prescribed statutory maximum must be submitted to  a jury, and proved beyond a reasonable doubt." Id. (emphasis added). The  Government contends that the Apprendi exception applies, and not the rule,  because the alleged omission is in fact the fact of a prior conviction. Most  significantly, the Government notes that the Supreme Court has previously  rejected the argument that  1326 contains two separate offenses with separate  statutory maximums rather than a single offense with a sentencing factor. See  Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 1226, 140  L.Ed.2d 350 (1998).


11
Anticipating this argument, Padilla notes that a sentence in Apprendi states  that "it is arguable that Almendarez-Torres was incorrectly decided, and that a  logical application of our reasoning today should apply if the recidivist issue  were contested." Apprendi, 120 S.Ct. at 2362. While acknowledging that Apprendi  explicitly held that its decision does not extend to cases where the fact is a  prior conviction, see id., Padilla invites us to anticipate the death-knell of  Almendarez-Torres, and extend the logic of Apprendi to cases where the omitted  fact is a prior conviction.

V. DISCUSSION
A. The Aggravated Felony Issue

12
The Sentencing Guidelines give a base offense level of eight for violation of 8  U.S.C.  1326(a), unlawfully entering or remaining in the United States.  U.S.S.G.  2L1.2(a). If the defendant previously was deported after a criminal  conviction, whether or not the deportation was as a result of that criminal  conviction,  2L1.2 requires application of a sentencing enhancement. The  enhancement is four levels if the conviction was either for a felony other than  an aggravated felony or for three or more misdemeanor crimes of violence or  misdemeanor controlled substance offenses. U.S.S.G.  2L1.2(a)(b)(1)(B). The  enhancement is sixteen levels if the conviction was for an "aggravated felony."  Id.  2L1.2(a)(b)(1)(A). "Felony offense" is defined in  2L1.2 as any federal,  state, or local offense punishable by imprisonment for a term exceeding one  year; "aggravated felony," however, is defined by statutory reference to a  subsection of the Immigration and Nationality Act, 8 U.S.C.  1101(a)(43).  U.S.S.G.  2L1.2 comment.(n. 1).


13
The "aggravated felony" category was created in 1988, and initially included  only murder, drug trafficking and weapons trafficking. See Anti-Drug Abuse Act  of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4469 (codified as amended at 8  U.S.C.  1101(a)(43) (1994 & Supp. III 1997)). Since its enactment, Congress has  expanded the range of crimes included in the "aggravated felony" category. The  most recent amendments added rape and sexual abuse of a minor, while also  lowering sentencing thresholds for crimes of violence and theft offenses. See  Illegal Immigration Reform and Responsibility Act of 1996, Pub.L. 104-208,   321, 110 Stat. 3009, 3009-546 (codified as amended in scattered sections of  Titles 8 and 18 U.S.C.).


14
As it now stands,  1101(a)(43) contains twenty-one categories of offenses. 8  U.S.C.  1101(a)(43). Some of these are qualified by reference to other  statutory provisions or by additional sentencing requirements. See, e.g.   1101(a)(43)(B) (including "illicit trafficking in a controlled substance (as  defined in section 802 of Title 21)" as an aggravated felony);  1101(a)(43)(G)  (including "a theft offense ... for which the term of imprisonment [sic] at  least one year" as an aggravated felony). The "sexual abuse of a minor"  subsection,  1101(a)(43)(A), is not qualified by reference to other statutory  provisions or by sentencing requirements, and reads, starting with the heading,  "(43) The term 'aggravated felony' means-(A) murder, rape, or sexual abuse of a  minor; ...." Id.  1101(a)(43)(A).


15
Florida Statute  800.04 criminalizes sexual offenses that do not rise to the  level of rape or sexual battery and which are committed against children under  the age of sixteen. See Fla. Stat. Ann.  800.04 (1987).4 Because the statute is  written in the disjunctive, it encompasses acts involving victim contact as well  as acts involving no victim contact. Worling v. State, 484 So.2d 94, 94  (Fla.Dist.Ct.App.1986). The elements of the offense vary accordingly.5 Thus, as  Padilla contends,  800.04 does not in every case require physical contact with  the victim. See Ramsey v. INS, 55 F.3d 580, 583 (11th Cir.1995).


16
We begin our analysis with the plain meaning of "sexual abuse of a minor." See  United States v. McLymont, 45 F.3d 400, 401 (11th Cir.1995). Unless the language  is ambiguous or the plain meaning leads to absurd results, the ordinary and  everyday meaning of the statute controls. Id. Among the relevant definitions for  abuse, Webster's includes "misuse ... to use or treat so as to injure, hurt, or  damage ... to commit indecent assault on ... the act of violating sexually ...  [and] rape or indecent assault not amounting to rape." Webster's Third New  International Dictionary 8 (3d ed. 1981). Among the relevant definitions for  sexual, Webster's includes "of or relating to the sphere of behavior associated  with libidinal gratification." Id. at 2082. Black's Law Dictionary defines  "sexual abuse" as "[a]n illegal sex act, esp[ecially] one performed against a  minor by an adult." Black's Law Dictionary 10 (7th ed. 1999). We think the  meaning of the "of a minor" portion of the phrase is fairly self-evident, and,  contrary to Padilla's position, that the phrase as a whole, considered as the  sum of its constituent parts, is not ambiguous.


17
Padilla's main contention is that the term is ambiguous because it is not clear  whether physical contact is a necessary element of the offense. We think the  ordinary meaning of the phrase includes acts that involve physical contact  between the perpetrator and the victim as well as acts that do not. An  examination of the relevant definitions noted supra reveals that "abuse" does  not connote only physically injurious acts. Furthermore, the modifier "sexual"  does not limit the phrase's scope to abuse of the physical variety. Rather than  describing the form of the abuse as a "sexual" physical contact, we think the  word "sexual" in the phrase "sexual abuse of a minor" indicates that the  perpetrator's intent in committing the abuse is to seek libidinal gratification.  Cf. United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000) (noting  in similar context that violation of a provision of the Texas Penal Code  criminalizing intentional and knowing exposure of one's genitalia to a minor  with intent to arouse or gratify is " 'sexual' because it must have sexual  arousal or gratification as its purpose"). In other words, the phrase "sexual  abuse of a minor" means a perpetrator's physical or nonphysical misuse or  maltreatment of a minor for a purpose associated with sexual gratification.


18
This reading conforms with common usage, which often employs the term to  describe nonphysical "sexual abuse," see Phil Mushnick, Degrading for Ratings:  McMahon's Sex-Laced Rant Turns on Little and Big Boys, N.Y. Post, March 11,  2001, at 84 (describing televised nonphysical sexual abuse of female performer);  Fenton Bresler, Party Politics, Times (London), December 6, 2000, at 5 (CREME)  (describing nonphysical sexual abuse of constable by immediate superior), as  well as comprehending the more technical usage employed by researchers in the  field. See National Center on Child Abuse and Neglect, HHS, Sexual Abuse of  Children: Selected Readings 1 (1980) (defining child sex abuse as "contacts or  interactions between a child and an adult when the child is being used as an  object of gratification for adult sexual needs or desires."). The conclusion  that "sexual abuse of a minor" is not limited to physical abuse also recognizes  an invidious aspect of the offense: that the act, which may or may not involve  physical contact by the perpetrator, usually results in psychological injury for  the victim, regardless of whether any physical injury was incurred. See  Zavala-Sustaita, 214 F.3d at 605 (citing People v. Stoddard, 227 Cal.App.2d 40,  38 Cal.Rptr. 407, 408 (1964) for proposition that even with no likelihood of  physical contact, threat of psychological trauma from sexual abuse of a minor  can be as significant a menace as probable physical injury).


19
We find that the plain meaning of  1101(a)(43)(A) is unambiguous, but turn next  to Padilla's suggestion that Congress made the definition of "sexual abuse of a  minor" in the Immigration and Nationality Act dependent on other sections of the  Code. As we noted earlier,  1101(a)(43) contains twenty-one categories of  offenses, and the clear majority of the offense descriptions include  cross-references to other Code sections.6 Because it is evident that where  Congress intended an aggravated felony subsection to depend on federal statutory  law it explicitly included the statutory cross-reference, we conclude that the  lack of an explicit statutory reference in the  1101(a)(43)(A) subsection  indicates Congress's intent to rely on the plain meaning of the terms. Other  circuits that have reached this issue have come to the same conclusion. See  Zavala-Sustaita, 214 F.3d at 606; United States v. Baron-Medina, 187 F.3d 1144,  1146 (9th Cir.1999).


20
Having determined that the phrase "sexual abuse of a minor" is not ambiguous and  that Congress did not intend to rely on other statutory provisions for its  definition, we conclude that the ordinary, common and contemporary meaning of  "sexual abuse of a minor" in  1101(a)(43) includes a violation of Florida  Statute  800.04, with or without victim contact. Because a violation of   800.04 is "sexual abuse of a minor," the district court did not err in applying  a sixteen-level enhancement for a prior conviction for an aggravated felony  pursuant to U.S.S.G.  2L1.2(b)(1)(A).

B. The Apprendi Issue

21
Padilla contends for the first time in a supplemental brief that his sentence is  in violation of the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.  2348, 147 L.Ed.2d 435 (2000). However, because Padilla did not raise this issue  in his initial brief to this court, we apply the rule that parties cannot  properly raise new issues at supplemental briefing, even if the issues arise  based on intervening decisions or new developments cited in supplemental  authority. United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000). Because  this issue is raised for the first time in supplemental briefing, we deem it  waived. Id. at 830-31.

VI. CONCLUSION

22
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 a sixteen-level enhancement for a prior aggravated felony conviction  pursuant to U.S.S.G.  2L1.2(b)(1)(A). Because Padilla raises the Apprendi issue  for the first time in supplemental briefing, we deem it waived. For the  foregoing reasons, the judgment of the district court is AFFIRMED.


23
AFFIRMED.



NOTES:


1
  Under the provisions of the Immigration and Nationality Act, the disposition of  Padilla's  800.04 charge is a conviction. See 8 U.S.C.  1101(a)(48)(A).


2
  Padilla does not conclude, however, that  800.04 can never be an aggravated  felony for purposes of the  2L1.2 enhancement. Citing our decision in Ramsey v.  INS, 55 F.3d 580 (11th Cir.1995), Padilla points out that a conviction for  violation of  800.04 may qualify as an aggravated felony if it independently  satisfies the definition of a "crime of violence" under  1101(a)(43)(F), which  contains the requirement that the sentence for the offense be at least one year.  See 8 U.S.C.  1101(a)(43)(F) (providing conviction for "crime of violence" with  sentence of at least one year is an aggravated felony); Ramsey v. INS, 55 F.3d  580, 583 (11th Cir.1995) (holding that Florida Statute  800.04 is a "crime of  violence" because it involves a substantial risk that physical force may be used  against the victim). However, because Padilla's sentence for the lewd assault  was less than one year,  1101(a)(43)(F) is inapplicable here.


3
  The indictment did allege, however, that Padilla's reentry following deportation  was "in violation of Title 8, United States Code, Sections 1326(a), (b)(2)."  (R.1-1 at 2.)


4
  At the time of Padilla's conviction the statute read as follows: Lewd, lascivious, or indecent assault or act upon or in presence of child;  sexual battery Any person who:
(1) Handles, fondles or makes an assault upon any child under the age of 16  years in a lewd, lascivious, or indecent manner;
(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any  child under the age of 16 years; or
(3) 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 is  guilty of a felony of the second degree, punishable as provided in s. 775.082,  s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the  victim's consent is a defense to the crime proscribed by this section. Fla. Stat.  800.04 (1987).


5
  For example, when a defendant is charged with violation of the statute for  committing a lewd or lascivious act in the presence of a child, the only  elements are that the child was under the age of sixteen and that the defendant  knowingly committed a lewd or lascivious act that the child saw or sensed.  Werner v. State, 590 So.2d 431, 435 (Fla.Dist.Ct.App.1991). And, for example, if  the violation is a sexual battery on a female child under sixteen, the elements  required to be proved are that the victim was under the age of 16 years, and  that the defendant committed an act upon the victim in which the sexual organ of  the appellant had union with the vagina of the victim; assault is not an element  of the offense. Timot v. State, 738 So.2d 387, 389-90 (Fla.Dist.Ct.App.1999).


6
  See, e.g. 8 U.S.C.  1101(a)(43)(B) (including "illicit trafficking in a  controlled substance (as defined in section 802 of Title 21)" as an aggravated  felony);  1101(a)(43)(C) (including "illicit trafficking in firearms or  destructive devices (as defined in section 921 of Title 18) or in explosive  materials (as defined in section 841(c) of that title)" as an aggravated  felony);  1101(a)(43)(D) (including "an offense described in section 1956 of  Title 18 (relating to laundering of monetary instruments) or section 1957 of  that title (relating to engaging in monetary transactions in property derived  from specific unlawful activity) if the amount of the funds exceeded $10,000" as  an aggravated felony).


