United States of America v. German Alvarenga -Silva

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3434
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G ERMAN A LVARENGA -S ILVA ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 423-1—Charles P. Kocoras, Chief Judge.
____________
A RGUED M ARCH 4, 2003—D ECIDED A PRIL 3, 2003
____________
Before B AUER , E VANS , and W ILLIAMS, Circuit Judges.
P ER C URIAM . This appeal asks us to decide whether
a prior conviction for domestic battery qualifies as a “crime
of violence” under recently amended U.S.S.G. § 2L1.2,
which applies to illegal reentrants. Although the Sentenc-
ing Commission’s explanation for its amendment sug-
gests an intention to narrow the definition of crimes of
violence to exclude offenses like domestic battery, the
plain language of the definition compels us to conclude
that domestic battery is a crime of violence under § 2L1.2.
Accordingly, we affirm the district court’s sentencing of
the defendant, German Alvarenga-Silva.
Alvarenga is a citizen of El Salvador with no legal status
in the United States. After being deported in 2000, he made

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2 No. 02-3434
his way back to the United States illegally. It did not
take long for federal agents to find Alvarenga, and after
being apprehended, he pleaded guilty to being present in
the country illegally, 8 U.S.C. § 1326(a). The illegal reentry
statute substantially increases the authorized maximum
penalty if the alien’s prior deportation followed an aggra-
vated felony conviction, see id. § 1326(b)(2), and U.S.S.G.
§ 2L1.2 implements the higher statutory penalty by pro-
viding for increases in offense level that turn on the na-
ture of prior convictions. The November 2001 version of
§ 2L1.2 applied to Alvarenga’s sentencing. See U.S.S.G.
§ 1B1.11(a). Section 2L1.2 provides, in relevant part, that
courts sentencing illegal reentrants must “[a]pply the
[g]reatest” of the following increases to the base offense
level of 8:
If the defendant previously was deported . . . after—
(A) a conviction for a felony that is . . . (ii) a crime
of violence . . . increase by 16 levels;
(B) a conviction for a felony drug trafficking offense
for which the sentence imposed was 13 months or
less, increase by 12 levels;
(C) a conviction for an aggravated felony, increase by
8 levels;
(D) a conviction for any other felony, increase by 4
levels; or
(E) three or more convictions for misdemeanors that
are crimes of violence or drug trafficking offenses,
increase by 4 levels.
U.S.S.G. § 2L1.2(b)(1). Application Note 1(B)(ii) for § 2L1.2
defines “crime of violence” to include crimes that involve
physical force, as well as certain enumerated offenses:
“Crime of Violence”—
(I) means an offense under federal, state, or local
law that has as an element the use, attempted

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No. 02-3434 3
use, or threatened use of physical force against
the person of another; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (in-
cluding sexual abuse of a minor), robbery,
arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2, comment. (n.1).
The district court imposed a 16-level increase in
Alvarenga’s offense level based on its conclusion that his
prior Illinois felony conviction for domestic battery, 720
ILCS 5/12-3.2, qualified as a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii). Alvarenga had argued that the court
should impose only an 8-level increase (for aggravated
felonies) because domestic battery is not among the of-
fenses enumerated in § 2L1.2’s definition of crimes of
violence, but the court rejected this argument. Specifically,
the court concluded that Alvarenga’s domestic battery
conviction qualified as a crime of violence because the
enumerated list was “simply illustrative and not exclu-
sive,” domestic battery fit the general definition of a vio-
lent crime, and the facts underlying the conviction dem-
onstrated that his offense was violent. The district court
ultimately sentenced Alvarenga to 96 months’ imprison-
ment and two years’ supervised release.
The district court’s interpretation of § 2L1.2 is a legal
conclusion subject to de novo review. See United States v.
Smith, 308 F.3d 726, 743 (7th Cir. 2002). Alvarenga does
not dispute that domestic battery meets the first subsec-
tion of § 2L1.2’s definition of “crime of violence” because
the offense “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” See U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)(I)).
Rather, the only question that Alvarenga raises on ap-
peal is whether a prior offense can qualify as a crime of

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4 No. 02-3434
violence under § 2L1.2 if it is not among those enumer-
ated in the second subsection of the definition. He asserts
that § 2L1.2’s definition requires an offense to meet the
description in both subsections to qualify as a crime of
violence because the word “and,” as opposed to “or,” links
the two subsections. He argues further that his posi-
tion is strengthened by the purpose underlying the 2001
amendment of § 2L1.2—a reduction of instances where
a defendant previously convicted of a less-serious felony,
like assault, receives the same increase as a defendant
previously convicted of one of the more-serious (and enu-
merated) felonies, such as murder. The government re-
sponds that Alvarenga has ignored the word “includes” in
the second subsection and that this term is illustrative,
rather than exclusive. Furthermore, the government ar-
gues, if only enumerated offenses qualify as crimes of vio-
lence, the Sentencing Commission would not have needed
to define crimes of violence generally in the first subsec-
tion. The government asserts that the two subsections
are therefore disjunctive.
“When interpreting a provision of the sentencing guide-
lines, a court must begin with the text of the provision
and the plain meaning of the words in the text.” United
States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999). The
plain language of § 2L1.2’s definition of crimes of violence
supports the government’s position that the definition is
not a two-part test. Alvarenga places much emphasis on
the definition’s use of “and” to link the two subsections
and contrasts this with the “or” wording in the definition
of crimes of violence that § 2L1.2 incorporated by refer-
ence (located in U.S.S.G. § 4B1.2) before the amendment.
But “and” is not followed by “is” in § 2L1.2’s new definition.
Rather, it is followed by “includes,” which signals illustra-
tion rather than exhaustion. See U.S.S.G. § 1B1.1, com-
ment. (n.2); Coleman v. United States, 318 F.3d 754, 760
(7th Cir. 2003) (“The word ‘includes’ does not suggest

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No. 02-3434 5
limitation. In fact, the word is defined ‘comprises as a
part of the whole.’ ”). The Sentencing Commission likely
enumerated certain serious offenses (like sexual abuse of
a minor and burglary of a dwelling), rather than resting
on a general definition, to ensure that those particular
offenses would be treated as crimes of violence regard-
less of variations in state statutory elements. See United
States v. Rayo-Valdez, 302 F.3d 314, 317, 318-19 (5th Cir.
2002), cert. denied, 123 S.Ct. 694 (2002). Furthermore,
construing “and” as setting up a two-part test would not
make sense because it would render the general defini-
tion in the first subsection of § 2L1.2’s definition unneces-
sary. Cf. United States v. Fuentes-Rivera, ___ F.3d ___, 2003
WL 721756, at *2 (11th Cir. March 4, 2003); Rayo-Valdez,
302 F.3d at 318; United States v. Gomez-Hernandez, 300
F.3d 974, 979 (8th Cir. 2002), cert. denied, 123 S.Ct. 929,
123 S.Ct. 931 (2003). Courts should avoid statutory con-
structions that render another part of the same provision
superfluous. TRW Inc. v. Andrews, 524 U.S. 19, 31 (2001).
The Commission’s explanation for amending § 2L1.2
provides better support for Alvarenga’s argument. See
U.S.S.G., App. C Supp., amend. 632. The old § 2L1.2 pro-
vided:
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 fel-
ony, 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.

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6 No. 02-3434
U.S.S.G. § 2L1.2(b)(1) (2001). But the Commission amended
§ 2L1.2 in 2001 “to isolate the most serious aggravated
felony convictions.” United States v. Rodriguez-Arreola,
313 F.3d 1064, 1066 (8th Cir. 2002). In the Commission’s
words, the amendment
responds to concerns raised by a number of judges,
probation officers, and defense attorneys . . . that
§ 2L1.2 . . . sometimes results in disproportionate
penalties because of the 16-level enhancement pro-
vided in the guideline for a prior conviction for an
aggravated felony. The disproportionate penalties re-
sult because the breadth of the definition of “aggra-
vated felony” provided in 8 U.S.C. § 1101(a)(43), which
is incorporated into the guideline by reference, means
that a defendant who previously was convicted of mur-
der, for example, receives the same 16-level enhance-
ment as a defendant previously convicted of simple
assault. . . . This amendment responds to these con-
cerns by providing a more graduated sentencing en-
hancement of between 8 levels and 16 levels, depend-
ing on the seriousness of the prior aggravated felony
and the dangerousness of the defendant.
U.S.S.G., App. C Supp., amend. 632.
Specifically, the murder-assault example provides the
best support for Alvarenga’s argument. The Commission
explains that the amendment aims to treat murder and
simple assault differently by imposing more graduated
increases. Id. But simple assault still qualifies for the 16-
level increase if the subsections of the definition are read
as disjunctive, because assault “has as an element the
use, attempted use, or threatened use of physical force
against the person of another,” U.S.S.G. § 2L1.2, comment.
(n.1(B)(ii)(I)). In fact, we have difficulty imagining an
aggravated felony that would not qualify as a crime of
violence under the first subsection. This is especially so

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No. 02-3434 7
because amended § 2L1.2 adopts a definition of “aggra-
vated felony” that includes any “offense that has as an
element the use, attempted use, or threatened use of
physical force against the person or property of anoth-
er,” thus mimicking the first subsection of § 2L1.2’s def-
inition of crimes of violence. See U.S.S.G. § 2L1.2, comment.
(n.2); 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(a). Thus, if
§ 2L1.2’s definition of crimes of violence is to conform with
the Commission’s apparent motivation for the amendment
and not render § 2L1.2(b)(1)(C) (increasing offense level
by 8 for aggravated felonies) superfluous, the enumerated
list in the second subsection of the definition could be
interpreted as more than just a list of examples.
But in this case, we cannot rely on interpretations of
the Commission’s intent because the language of the
definition, as drafted, leaves no ambiguity. See United
States v. Lovaas, 241 F.3d 900, 903 (7th Cir. 2001); United
States v. Berrio, 77 F.3d 206, 209 (7th Cir. 1996). And
based on the plain language, we conclude that § 2L1.2
does not set up a two-part test—an offense need not be
enumerated in the second subsection of the definition to
qualify as a crime of violence. Needless to say, very often
offenses will fall under both subsections. But to qualify
as a crime of violence under § 2L1.2, it is enough that
an offense either falls under the general definition in the
first subsection or is included among the enumerated
offenses in the second subsection. Although the Eleventh
Circuit, in facing a challenge identical to Alvarenga’s,
initially concluded that the language of amended § 2L1.2
was ambiguous, United States v. Hernandez-Gonzalez, 318
F.3d 1299, 1302 (11th Cir. 2003) (declining to decide the
issue because conducting only plain error review), that
court’s recent decision in Fuentes-Rivera, 2003 WL 721756,
at *2, comports with our reading of § 2L1.2. And if our
reading is indeed at odds with the Commission’s apparent
intent in amending § 2L1.2 to provide more graduated

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8 No. 02-3434
increases for different types of offenses, it must be left
to the Commission to clarify or redraft § 2L1.2 to achieve
the desired result.
Our conclusion is buttressed by the decisions of our sister
circuits that have addressed the issue. Responding to
challenges that prior convictions should not have been
construed as crimes of violence under § 2L1.2 because they
did not meet the general definition in the first subsection,
the Fifth, Eighth, and Eleventh Circuits all have held that
a prior offense does not have to fall within both subsections
to qualify as a crime of violence under amended § 2L1.2.
Fuentes-Rivera, 2003 WL 721756, at *2; United States v.
Vargas-Duran, 319 F.3d 194, 195 (5th Cir. 2003); Rayo-
Valdez, 302 F.3d at 316-19; Gomez-Hernandez, 300 F.3d at
978-79. The Fifth Circuit noted in dicta that “the § 2L1.2
definition has eliminated the possibility that a non-enumer-
ated crime risking the use of physical force could qualify as
a ‘crime of violence,’ ” Rayo-Valdez, 302 F.3d at 318, but
that comment is belied by the Rayo-Valdez court’s conclu-
sion that the Commission enumerated offenses in the
second subsection just to make sure that those listed did
not escape the purview of the general definition, id. at 317.
And although these cases do not address the precise
challenge that Alvarenga lodges—that a prior offense must
be among those enumerated in the second subsection to
qualify as a crime of violence—we find them persuasive
because all of the circuits rested their conclusion, at least in
part, on the plain language of amended § 2L1.2’s definition
of crimes of violence.
Accordingly, the district court did not err in construing
Alvarenga’s prior conviction for domestic battery as a
crime of violence under § 2L1.2, and the judgment is
A FFIRMED.

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No. 02-3434 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-3-03

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