UNITED STATES of America, Plaintiff-Appellant, v. Juan Ezequiel GONZALES-VELA, Defendant-Appellee.
No. 00-5417.
United States Court of Appeals, Sixth Circuit.
Submitted Oct. 26, 2001. Decided Nov. 21, 2001.*
276 F.3d 763
* This decision was originally issued as an “unpublished decision” filed on November 21, 2001. On January 7, 2002, the court designated the opinion as one recommended for full-text publication.
TIG presented evidence from List that Sedgwick may have misunderstood Policy 362 to include an additional insured clause. TIG never presented evidence that Sedgwick had the intent to defraud. We do not need to reach the question of reasonable reliance.
B.
The elements of negligent misrepresentation are (1) a representation made by the defendant in course of the defendant‘s business, or in a transaction in which the defendant has a proprietary interest; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communication the opinion; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. Federal Land Bank Ass‘n v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). TIG did not offer any summary judgment proof that Sedgwick negligently or carelessly issued the COI. TIG did not advance a theory about the relevant standard of care; it does not cite omitted precautions or any other indicia of negligence; it did not explain why Sedgwick, rather than Corporate Express, bore the burden of reading the incorporated policy. Absent a coherent legal theory and summary judgment evidence, the district court properly dismissed the claim.
AFFIRMED.
C. William Swinford, Jr. (briefed), Lexington, KY, for Defendant-Appellee.
Before MERRITT and DAUGHTREY, Circuit Judges, and WELLS,** District Judge.
DAUGHTREY, J., delivered the opinion of the court, in which WELLS, D.J., joined. MERRITT, J., delivered a separate dissenting opinion.
OPINION
DAUGHTREY, Circuit Judge.
Following his plea of guilty to the charge of illegal re-entry into the United States, the defendant. Juan Ezequiel Gonzales-Vela, was sentenced to a prison term of 21 months. The government now contends that the district court erred in failing to add 16 levels to the defendant‘s base offense level because, according to the prosecution, the defendant‘s prior conviction for sexual abuse of a minor, although a misdemeanor under Kentucky law, should still be treated as an “aggra
I.
On April 6, 1997, Gonzales-Vela was arrested on criminal complaints alleging that he had, in 1994, touched a five-year-old and a seven-year-old girl in their vaginal areas. Although he was charged with first degree sexual abuse under applicable Kentucky law, the defendant later pleaded guilty to amended charges of second degree sexual abuse, a misdemeanor in Kentucky. See
Subsequently, the United States government deported the defendant. On September 13, 1999, however, Gonzales-Vela was again arrested in Kentucky, this time for assault, and was also indicted by a federal grand jury for illegal reentry into the country. He chose to enter a plea of guilty to the federal charge and proceeded to sentencing, where the government asserted that the defendant‘s base offense level of 8, see
The district court concurred in Gonzales-Vela‘s interpretation of the sentencing laws and thus increased the defendant‘s base offense level only four levels because of the defendant‘s numerous prior misdemeanor convictions. See
II.
In sentencing the defendant, the district court appropriately referenced the guideline provisions of § 2L1.2 and initially applied the provision‘s base offense level of 8. Subsection (b)(1) of that directive, however, mandates:
If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greater):
(A) If the conviction was for an aggravated felony, increase by 16 levels.
(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels.
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) .
Before this court on appeal, Gonzales-Vela only half-heartedly argues that the acts to which he pleaded guilty in 1997 do not constitute “sexual abuse of a minor.” Because the applicable Kentucky statute under which he was convicted outlaws both sexual abuse of a minor and sexual abuse of a mentally retarded or incapacitated person, see
Alternatively, Gonzales-Vela maintains simply that the Kentucky offense for which he was convicted is, by definition, only a misdemeanor and cannot, therefore, be mysteriously transformed into not only a felony, but an “aggravated felony,” for federal sentencing purposes. As expressed more colorfully by Judge Straub, dissenting in a Second Circuit case, United States v. Pacheco, 225 F.3d 148, 157 (2d Cir.2000) (Straub, J., dissenting), cert. denied, U.S. —, 121 S.Ct. 2246, 150 L.Ed.2d 234 (2001):
[I]t is quite clear that “aggravated felony” defines a subset of the broader category “felony.” Common sense and standard English grammar dictate that when an adjective—such as “aggravated“—modifies a noun—such as “felony“—the combination of the terms delineates a subset of the noun. One would never suggest, for example, that by adding the adjective “blue” to the noun “car,” one could be attempting to define items that are not, in the first instance, cars. In other words, based on the plain
meaning of the terms “aggravated” and “felony,” we should presume that the specifics that follow in the definition of “aggravated felony” under INA [Immigration and Naturalization Act] § 101(a)(43) serve to elucidate what makes these particular felonies “aggravated“; we certainly should not presume that those specifics would include offenses that are not felonies at all. (Footnote omitted.)
Nevertheless, other courts, realizing the plenary power vested in Congress to “establish an uniform Rule of Naturalization,”
Congress said, “The term ‘aggravated felony’ means...” and proceeded to list what crimes would be considered aggravated felonies. It is important to note that the term aggravated felony is placed within quotation marks and Congress then used the word “means” after this term. What is evident from the setting aside of aggravated felony with quotation marks and the use of the term “means” is that
8 U.S.C. § 1101(a)(43) serves as a definition section.... Congress had the discretion to use whatever term it pleased and define the term as it deemed appropriate.... There is no explicit provision in the statute directing that the term “aggravated felony” is limited only to felony crimes.... We therefore are constrained to conclude that Congress, since it did not specifically articulate that aggravated felonies cannot be misdemeanors, intended to have the term aggravated felony apply to the broad range of crimes listed in the statute, even if these include misdemeanors.
Id. at 736-37 (citations omitted). Similarly, federal courts have concluded that Congress was defining a term of art, “aggravated felony,” and “[a]lthough Congress apparently did not notice that it might be breaking the time-honored line between felonies and misdemeanors. Congress had the power to define the punishment for the crime of re-entering the United States after deportation.” United States v. Christopher, 239 F.3d 1191, 1194 (11th Cir.), cert. denied, U.S. —, 122 S.Ct. 178, 151 L.Ed.2d 123 (2001). See also United States v. Graham, 169 F.3d 787 (3d Cir.), cert. denied, 528 U.S. 845, 120 S.Ct. 116, 145 L.Ed.2d 99 (1999). As noted in United States v. Marin-Navarette, 244 F.3d 1284, 1286 (11th Cir.), cert. denied, U.S. —, 122 S.Ct. 317, 151 L.Ed.2d 236 (2001):
Congress made its intent clear by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“) to specifically include within the meaning of “aggravated felony” sexual abuse of a minor and by not linking such a conviction to any term of imprisonment. By adding sexual abuse of a minor to the definition of “aggravated felony” without any reference to a term of imprisonment, Congress broadened the coverage of the “aggravated felony” classification.
Agreement with the position espoused by the government in this case does not necessarily justify ignoring established linguistic interpretations and common-law traditions in other contexts. Indeed, such a result is permissible in limited situations
III.
Because Congress is empowered to define the term “aggravated felony” in the immigration laws in such a manner as to include even state-denominated misdemeanors, the district judge erred in refusing to apply the provisions of
MERRITT, Circuit Judge, dissenting.
The issue that is now before our Court in this case was decided by the Second Circuit in United States v. Pacheco, 225 F.3d 148 (2d Cir.2000), a two-to-one decision in which Judge Straub dissented. I agree with Judge Straub‘s dissenting opinion found at 225 F.3d at 157. Calling a “misdemeanor” an “aggravated felony” is simply too much for me. It is by no means clear that this is what the legislative branch intended, and hence the rule of lenity in criminal cases ought to prevail.