Case: 13-13703   Date Filed: 06/23/2014   Page: 1 of 11


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13703
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:13-cr-00017-RWS-ECS-1



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


                                  versus


JORGE RAMIREZ-GONZALEZ,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (June 23, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       In January 2013, Jorge Ramirez-Gonzalez was indicted for illegal re-entry

into the United States in 2011 by an aggravated felon, in violation of 8 U.S.C.

1326(a) and (b)(2).1 In March 2013, he pled guilty to the charge. The presentence

report (“PSI”) prepared by the District Court’s Probation Office enhanced

Ramirez’s base offense level of 8 by 16 levels pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii) based on his 2006 conviction in Georgia for enticing a child for

indecent purposes, in violation of O.C.G.A. § 16-6-5(a). 2 After reducing his

offense level to 21 for acceptance of responsibility pursuant to U.S.S.G. §

3E1.1(a), and fixing his criminal history category at V, the PSI calculated the

Guidelines range at 70 to 87 months imprisonment. At sentencing, the District

Court adopted this range, but granted a downward variance and sentenced Ramirez

to a prison term of 54 months, with 2 months credit for time served.


       Ramirez appeals his sentence, arguing, first, that the District Court erred in

finding that his O.C.G.A. § 16-6-5(a) conviction qualified as “sexual abuse of a

minor” and enhancing his base offense level by 16 levels, and second, that his

sentence is substantively unreasonable because the court failed to consider


       1
           Prior to the indictment in this case, Ramirez had been deported twice, in 2006 and 2011
(prior to the re-entry charged in this case). Immigration officials found him on September 26,
2012, while he was in the custody of the Georgia Department of Corrections servicing a sentence
for DUI.
        2
           The § 16-6-5(a) offense was charged in Count 1 of a three-count indictment. Count 2
charged false imprisonment, in violation of O.C.G.A. § 16-5-41, and Count 3 charged criminal
trespass, in violation of O.C.G.A. § 16-7-21. Ramirez was convicted of all three offenses.
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adequately that his § 16-6-5(a) conviction was based on a guilty plea entered

pursuant to North Carolina v. Alford, 

, 

, 

.

We affirm.


                                                I.

      We review “de novo whether a defendant’s prior conviction qualifies as a

‘crime of violence’ under the Guidelines.” United States v. Cortes-Salazar, 

, 954 (11th Cir. 2012). Section 2L1.2(b)(1)(A)(ii) of the Sentencing

Guidelines provides that the base offense level for illegally re-entering the United

States should be increased by 16 levels if the conviction that led to the initial

deportation was a felony “crime of violence.” 3 U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Under § 2L1.2, “a felony conviction qualifies as a crime of violence . . . if either

(1) the defendant was convicted of one of the enumerated offenses; or (2) the use,

attempted use, or threatened use of physical force was an element of the offense.”

United States v. Palomino Garcia, 

, 1326 (11th Cir. 2010). Among

the enumerated offenses that qualify as a crime of violence under § 2L1.2 is any

conviction for an offense under federal, state, or local law that qualifies as the

“sexual abuse of a minor.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).

      Generally, to determine whether a prior conviction is a qualifying

crime-of-violence offense for enhancement purposes, we first apply the categorical

      3
          The conviction led to Ramirez’s first deportation, in 2006.
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approach. Palomino 

; see Taylor v. United States, 

, 598-602, 

, 2158-60, 

(1990) (holding that

the formal categorical approach requires the sentencing court to focus on the

statutory definition of the offense, or the charging papers and jury instructions, to

discern if the conviction substantially corresponded to a generic offense). We

usually look only at the statute and judgment of conviction to determine whether

the prior conviction is a qualifying offense. Palomino 

.

If there is no ambiguity as to whether the offense qualifies as a predicate offense

for enhancement purposes, we need “look no further” than those materials. See 

“the scope of acts criminalized by the statutory definition of the prior

offense is broader than the generic definition of the enumerated offense, then,

under the categorical approach, the prior conviction does not fall within the

enumerated offense.” United States v. Ramirez-Garcia, 

, 782-83

(11th Cir. 2011).

       In United States v. Padilla-Reyes, we looked to the ordinary and

unambiguous meaning of the terms contained in the phrase “sexual abuse of a

minor,” as used in 8 U.S.C. § 1101(a)(43)(A) and cross-referenced by the version

of § 2L1.2 in effect at that time, 4 and concluded that such offenses involve “a


       4
         Section 2L1.2 was later amended to directly include the “sexual abuse of a minor”
language, rather than rely on a cross-reference to § 1101(a)(43)(A). See 

.
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perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a

purpose associated with sexual gratification.” 

, 1163 (11th Cir.

2001). Based on that definition, we held that Fla. Stat. § 800.04 (1987), which

proscribed “[l]ewd, lascivious, or indecent assault or act[s] upon or in presence of

child; sexual battery,” constituted “sexual abuse of a minor” and triggered the 16-

level enhancement under § 2L1.2(b)(1)(A). 

1164. Although “sexual

abuse of a minor” now explicitly appears in the commentary to § 2L1.2 as an

enumerated crime-of-violence offense, rather than appearing by reference to

§ 1101(a)(43)(A) to define “aggravated felony,” we apply the same definition to

the term as we did when Padilla-Reyes was decided. 

.

      This generic definition of “sexual abuse of a minor” from Padilla-Reyes has

been interpreted broadly, as “‘[m]isuse’ or ‘maltreatment’ are expansive words that

include many different acts.” 

. Because the

definition includes nonphysical misuse and maltreatment, we have applied it to

underlying offenses that include solicitation and attempt. See Taylor v. United

States, 

, 1329 (11th Cir. 2005) (holding that an alien was barred

from a discretionary waiver of deportation under former Immigration and

Nationality Act § 212(c), 8 U.S.C. § 1182(c) because his prior conviction under a

Florida statute proscribing “solicitation of a child who was 16-years-old to engage


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in a sexual battery” constituted “sexual abuse of a minor” under § 1101(a)(43)(A),

and noting that such solicitation represents nonphysical conduct committed for the

purpose of sexual gratification); 

(applying the

definition, as used in § 2L1.2(b)(1)(A), to a North Carolina statute that

criminalized the taking or attempted taking of “any immoral, improper, or indecent

liberties with any child,” and the commission or attempted commission of “any

lewd or lascivious act upon or with the body . . . of any child of either sex under

the age of 16 years.”).

      Section 16-6-5 of the Georgia Code criminalizes the enticing of a child for

indecent purposes, and someone commits the offense “when he or she solicits,

entices, or takes any child under the age of 16 years to any place whatsoever for

the purpose of child molestation or indecent acts.” O.C.G.A. § 16-6-5(a). A

person commits child molestation when he:

      (1) Does any immoral or indecent act to or in the presence of or with
      any child under the age of 16 years with the intent to arouse or satisfy
      the sexual desires of either the child or the person; or
      (2) By means of an electronic device, transmits images of a person
      engaging in, inducing, or otherwise participating in any immoral or
      indecent act to a child under the age of 16 years with the intent to
      arouse or satisfy the sexual desires of either the child or the person.

O.C.G.A. § 16-6-4. The Georgia courts have interpreted the term “indecent” in the

context of § 16-6-4 to be sufficient to “alert a defendant that he or she was being

charged with committing an unlawful act with a lustful intent against a child” and


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that “[s]uch an act would inherently be for someone’s sexual gratification.”

Hammock v. State, 

, 746 (Ga. Ct. App. 1991). Likewise, in the

context of § 16-6-5(a), the courts have recognized that the words “‘indecent acts’

. . . are not so vague and undefined as to prevent a person from recognizing the

conduct they forbid,” namely, “acting with the intent of engaging in illicit sexual

conduct with a minor.” State v. Marshall, 

, 339 (Ga. Ct. App.

2010). The courts largely base this interpretation on the fact that § 16-6-5 was

enacted as part of a code chapter entitled “Sexual Offenses,” which alerts

defendants to the fact that they are accused of acting with intent to engage in

sexual misconduct. 

      In United States v. McGarity, one of the defendants faced potential

enhancements under 18 U.S.C. §§ 2251(e) and 2252A(b)(1) for a prior conviction

of § 16-6-5(a). 

, 1261-63 (11th Cir. 2012). We noted that

§ 2251(e) applied an enhancement for a “prior conviction . . . under the laws of any

State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact

involving a minor,” and § 2252A(b)(1) applied an enhancement for “a prior

conviction . . . under the laws of any State relating to aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor.” 

(ellipses

in original); see 18 U.S.C. §§ 2251(e), 2252A(b)(1). In upholding the two

sentence enhancements based on the defendant’s prior conviction under


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§ 16­6­5(a), we relied on the Georgia Court of Appeals’s holdings in Hammock

and Marshall that defined “indecent” in § 16-6-5(a) as giving “notice to the

defendant that ‘he or she was being charged with committing an unlawful act with

a lustful intent against a child.” 

. We further stated

that, by its nature, § 16-6-5(a) “proscribes the solicitation of a minor to engage in

sexual conduct or conduct which, by its nature, is a sexual offense against a

minor.” 

that a violation under § 16-6-5(a) fits within Padilla-Reyes’s

broad generic definition of “sexual abuse of a minor” that includes both physical

and nonphysical misuse and maltreatment of a minor for the purposes of sexual

gratification. Accordingly, the District Court did not err in concluding that the

underlying conviction under § 16-6-5(a) categorically constituted a crime of

violence under § 2L1.2(b)(1)(A)(ii).

                                          II.

      We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 

, 51, 

, 597, 

(2007). A court abuses its discretion when it (1) fails to consider all factors

that were due significant weight, (2) gives an improper or irrelevant factor

significant weight, or (3) commits a clear error of judgment by balancing the

proper factors unreasonably. United States v. Irey, 

, 1189 (11th Cir.


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2010). The factors that the court weighs are set forth in 18 U.S.C. § 3553(a). “[A]

district court commits a clear error in judgment when it weighs those factors

unreasonably, arriving at a sentence that does not achieve the purposes of

sentencing,” as stated in that statute. 

These purposes

include the need for the sentence to reflect the seriousness of the offense, promote

respect for the law, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2)(A)-(C). The court

must also consider the nature and circumstances of the offense committed and the

defendant’s history and characteristics, the kinds of sentences available, the

Guidelines range applicable to the defendant, Sentencing Commission policy

statements, the need to avoid unwarranted sentencing disparities between

defendants with similar records who have been found guilty of similar conduct,

and any need to provide restitution to victims. 

(3)–(7).

      A district court is required to “evaluate all of the § 3553(a) factors when

arriving at a sentence.” United States v. Shaw, 

, 1237 (11th Cir.

2009). The weight accorded to each factor, however, is “a matter committed to the

sound discretion of the district court.” United States v. Amedeo, 

, 832

(11th Cir. 2007) (citation omitted). “We do not reweigh relevant factors nor do we

remand for re-sentencing unless the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence outside the


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range of reasonable sentences.” United States v. Langston, 

, 1237

(11th Cir. 2009).

      An Alford plea is a guilty plea where the defendant maintains a claim of

innocence to the underlying criminal conduct charged but admits that sufficient

evidence exists to convict him of the offense. See 

, 91

S.Ct. at 167-68. “[T]he collateral consequences flowing from an Alford plea are

the same as those flowing from an ordinary plea of guilty” so long as “the guilty

plea represents a voluntary and intelligent choice among alternative courses of

action open to the defendant, and a sufficient factual basis exists to support the plea

of guilt.” Blohm v. C.I.R., 

, 1554 (citation omitted) (holding that a

taxpayer was collaterally estopped from denying liability for civil fraud under 26

U.S.C. § 6653 for the same year he entered an Alford plea on a criminal tax fraud

conviction under 26 U.S.C. § 7201). Under Georgia law, an Alford plea is “a

guilty plea and places the defendant in the same position as if there had been a trial

and conviction by a jury.” Morrell v. State, 

, 772 n.3 (Ga. Ct. App.

2009) (quotations omitted).

      As discussed in our resolution of the first issue, the District Court was

correct in determining that a 16­level enhancement applied to Ramirez-Gonzalez’s

prior conviction for enticement of a minor. The fact that his conviction was based

on an Alford plea is immaterial because the collateral consequences of an Alford


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plea are no different than those of an ordinary guilty plea. Although the court

correctly applied the 16-level enhancement, it also issued a considerable downward

variance to negate the potential sentencing disparities that could have resulted from

the enhancement on these facts, evidencing the court’s sound consideration of the

§ 3553(a) factors. The resulting 52-months sentence was below the Guidelines

range of 70 to 87 months, well below the maximum sentence of 20 years set by

§ 1326(b)(2), and overall, substantively reasonable.

      AFFIRMED.




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