United States v. William Homero Cortes-Salazar
2012 U.S. App. LEXIS 10886
| 11th Cir. | 2012Background
- Cortes-Salazar, a Colombian citizen, was sentenced to 57 months for illegal reentry after deportation.
- Prior Florida convictions: marijuana possession (1990) and a lewd assault act (1993).
- He was removed in 1995 and reentered the U.S. without permission, leading to the indictment and guilty plea.
- The district court increased his offense level by 16 for a prior crime of violence and reduced it by 3 for acceptance of responsibility.
- Cortes-Salazar challenged the 16-level enhancement, arguing § 800.04 (Florida) does not equal sexual abuse of a minor under § 2L1.2.
- The Eleventh Circuit affirmed, applying Padilla-Reyes to define sexual abuse of a minor and upheld the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Fla. 800.04 qualify as sexual abuse of a minor under § 2L1.2? | Cortes-Salazar argues it does not. | The government argues it falls within the plain meaning of sexual abuse of a minor. | Yes; Padilla-Reyes binding, 800.04 falls within sexual abuse of a minor. |
| Should Palomino Garcia govern the analysis over Ramirez-Garcia? | Palomino Garcia method applies. | Ramirez-Garcia controls a plain-meaning approach for non-traditional offenses. | Padilla-Reyes plain-meaning approach governs; Ramirez-Garcia does not override. |
| Is the § 2L1.2 commentary authoritative and consistent with the guideline? | Commentary may be inconsistent with the guideline. | Commentary is authoritative and consistent; permissible to rely on. | Commentary remains authoritative and not plainly erroneous. |
| May a prior conviction be used for enhancement under Almendarez-Torres context here? | Prior convictions must be charged/alleged. | Almendarez-Torres permits use of prior convictions for enhancement without formal charging. | District court did not err; Almendarez-Torres controls. |
Key Cases Cited
- Padilla-Reyes v. United States, 247 F.3d 1158 (11th Cir. 2001) (plain-meaning approach includes sexual abuse of a minor under § 800.04)
- Ramirez-Garcia v. United States, 646 F.3d 778 (11th Cir. 2011) (non-traditional offenses defined by plain meaning; Padilla-Reyes binding)
- Palomino Garcia v. United States, 606 F.3d 1317 (11th Cir. 2010) (elaborates that enumerated offenses can be crime of violence even sans physical force)
- Johnson v. United States, 130 S. Ct. 1265 (2010) (categorical approach in ACCA not applicable to § 2L1.2)