United States v. Efrain Ramirez, 2013 U.S. App. LEXIS 19486

Background

Defendant Efrain Hernandez Ramirez, a Mexican national, pled guilty to illegal reentry after prior removals and was sentenced under 8 U.S.C. § 1326(a) and (b)(2).
The PSR identified a 2004 New York conviction for third-degree sexual abuse (class B misdemeanor) involving sexual intercourse with a 15‑year‑old when Ramirez was 24.
The government argued that this prior conviction qualified as an "aggravated felony" under U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43) for purposes of an 8‑level guidelines enhancement.
The probation officer amended the PSR to apply the enhancement, raising Ramirez’s advisory range; the district court applied the enhancement, granted a one‑level downward variance for acceptance, and sentenced Ramirez to 22 months.
Ramirez appealed, arguing a state misdemeanor cannot be treated as an "aggravated felony" for Guidelines enhancement; the Fifth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a state misdemeanor conviction for sexual abuse of a minor can qualify as an "aggravated felony" under 8 U.S.C. § 1101(a)(43) and trigger an 8‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(C)	Ramirez: A prior conviction must actually be a felony to be an "aggravated felony"; a misdemeanor cannot be elevated into a felony for sentencing purposes.	Government: § 1101(a)(43) enumerates generic offenses (e.g., "sexual abuse of a minor") without a durational requirement; a state conviction that fits that generic offense qualifies even if labeled a misdemeanor.	The court held the misdemeanor conviction qualified as "sexual abuse of a minor" and thus as an aggravated felony for Guideline enhancement.
Whether the modified categorical approach could be used to identify Ramirez’s conviction as sexual abuse of a minor	Ramirez: New York § 130.55 is not divisible so the modified categorical approach should not apply.	Government: Lack of consent under § 130.55 can be based on incapacity due to age (<17), making the statute divisible; charging documents show the minor‑victim predicate.	The court applied the modified categorical approach and found the conviction was for sexual abuse of a minor.
Whether Fifth Circuit precedent (Urias‑Escobar) is inapplicable or abrogated by later Guidelines amendments	Ramirez: Urias‑Escobar should be limited to its facts or abrogated by Guideline changes.	Government: Urias‑Escobar correctly recognizes Congress can define "aggravated felony" to include certain misdemeanors; Guideline amendments do not alter that principle.	The court reaffirmed Urias‑Escobar’s applicability and applied it here.
Whether Supreme Court decisions (Carachuri‑Rosendo, Moncrieffe) prohibit treating a misdemeanor as an aggravated felony here	Ramirez: Those decisions require "common sense" and prohibit transforming misdemeanors into aggravated felonies.	Government: Carachuri and Moncrieffe address different statutory questions (importing uncharged facts; categorical mismatch with CSA) and do not disturb the application where the state conviction itself meets the generic offense.	The court found those Supreme Court cases distinguishable and not controlling; they do not undermine the enhancement here.

Key Cases Cited

United States v. Urias‑Escobar, 281 F.3d 165 (5th Cir. 2002) (holding certain state misdemeanors may qualify as "aggravated felonies" under § 1101(a)(43))
Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct. 2013) (articulating the categorical approach and limits where state offense may be either misdemeanor or felony under federal law)
Carachuri‑Rosendo v. Holder, 130 S. Ct. 2577 (Sup. Ct. 2010) (rejecting importing uncharged facts to elevate a state misdemeanor into an aggravated felony)
United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (discussion of "minor" for sexual‑abuse categorical analysis)
United States v. Moore, 708 F.3d 639 (5th Cir. 2013) (standard of review: de novo review of Guidelines legal interpretation)