United States v. Efrain Ramirez

Case: 13-10473 Document: 00512382277 Page: 1 Date Filed: 09/23/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 23, 2013

No. 13-10473 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EFRAIN HERNANDEZ RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

KING, Circuit Judge.

Efrain Hernandez Ramirez pled guilty to one count of illegal reentry

following removal and at his sentencing, the district court applied an eight-level

enhancement based on a prior conviction for an aggravated felony. The

aggravated felony in question was a New York state misdemeanor conviction for

third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing

that his misdemeanor conviction cannot be an aggravated felony. For the

following reasons, we AFFIRM.

I. Factual and Procedural Background

Efrain Hernandez Ramirez is a Mexican citizen, and he was removed from

the United States in March 2004, and again in March 2009. He returned to the

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United States several months after his second removal. On October 10, 2012,

the government indicted Ramirez on one count of illegal reentry following

removal from the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Ramirez pled guilty without a plea agreement and stipulated that he was found

in the United States without official permission after a prior removal.

During the sentencing process, issues arose concerning his 2004

misdemeanor conviction in New York for third-degree sexual abuse, which

carried a maximum penalty of three months’ imprisonment. According to

Ramirez’s presentence report (“PSR”), police reports indicated that the

conviction was based on Ramirez’s apparently consensual sexual intercourse

with a fifteen-year-old female when he was twenty-four. Although the PSR

included the sexual abuse conviction in its calculation of his criminal history

category, it did not factor the conviction into his offense level.

The government objected to the PSR, arguing that Ramirez’s prior

conviction for third-degree sexual abuse should be classified as an aggravated

felony pursuant to § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines

Manual (“the Guidelines”), its associated application notes, and the application

of the modified categorical approach. The probation officer accepted the

government’s objection and amended Ramirez’s PSR. Instead of a final offense

level of six, as had been assigned in the original PSR, the PSR increased his

offense level to fourteen. The advisory Guidelines range for Ramirez increased

from between two and eight months’ imprisonment, to between twenty-one and

twenty-seven months’ imprisonment.

During the sentencing hearing, Ramirez objected to the probation officer’s

conclusion that his prior New York conviction qualified as an aggravated felony.

He asserted that because the conviction was for a misdemeanor, it could not

qualify as an aggravated felony. Relying on United States v. Galvez, 102 F.

App’x 425 (5th Cir. 2004) (unpublished) (per curiam), and United States v. Urias-

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Escobar, 281 F.3d 165 (5th Cir. 2002), the district court rejected Ramirez’s

argument, and applied the enhancement. It also granted Ramirez a downward

variance of one level for acceptance of responsibility, resulting in a Guidelines

advisory range of eighteen to twenty-four months. Given Ramirez’s violent

history, the court ultimately imposed a sentence of twenty-two months. Ramirez

now appeals.

II. Standard of Review

The district court’s legal interpretation of the United States Sentencing

Guidelines is a question of law and is reviewed de novo. United States v. Moore,

708 F.3d 639, 645 (5th Cir. 2013).

III. Discussion

When the district court sentenced Ramirez for illegal reentry into the

United States in violation of 8 U.S.C. § 1326(a) and (b)(2), it properly consulted

§ 2L1.2 of the Guidelines. See U.S.S.G. § 2L1.2, cmt. Under § 2L1.2, the base

level for the offense of illegal reentry is eight points, and it recommends an

eight-level enhancement when the defendant has a conviction for an aggravated

felony. Id. at § 2L1.2(a). The commentary for this section defines both “felony”

and “aggravated felony.” Whereas a felony is any offense punishable by

imprisonment for a term exceeding a year, see id. § 2L1.2 cmt. n.2, the definition

of aggravated felony provides no durational limitation, see id. § 2L1.2 cmt. n.3.

Instead, the Guidelines adopt the definition provided in 8 U.S.C. § 1101(a)(43).

Id. Under this statute, an aggravated felony includes “murder, rape, or sexual

abuse of a minor.” See 8 U.S.C. § 1101(a)(43)(A).

The district court concluded that Ramirez was eligible for the eight-level

enhancement for an aggravated felony based on his 2004 New York conviction

of third-degree sexual abuse, a class B misdemeanor. Under New York law,

A person is guilty of sexual abuse in the third degree when he or she

subjects another person to sexual contact without the latter’s

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consent; except that in any prosecution under this section, it is an

affirmative defense that (a) such other person’s lack of consent was

due solely to incapacity to consent by reason of being less than

seventeen years old, and (b) such other person was more than

fourteen years old, and (c) the defendant was less than five years

older than such other person.

N.Y. Penal Law § 130.55 (Consol. 2013). New York law also defines lack of

consent, in part, as the incapacity to consent because the victim is less than

seventeen years old. Id. §§ 130.05(2)(b) & (3)(a).

When the government alleges that a prior state conviction constitutes an

aggravated felony, the Supreme Court has instructed courts to employ a

“categorical approach” to determine whether the state offense is comparable to

an offense listed in the statute. Moncrieffe v. Holder,--- U.S. ---, 133 S. Ct. 1678,

1684 (2013). “Under this approach, we look not to the facts of the particular

prior case, but instead to whether the state statute defining the crime of

conviction categorically fits within the generic federal definition of a

corresponding aggravated felony.” Id. (citations and internal quotation marks

omitted). If the statute at issue is divisible, or defines multiple offenses, see

Black’s Law Dictionary 1186 (9th ed. 2009), and at least one of the offenses

included in the statute is not an aggravated felony, the court is to apply a

“modified categorical approach.” See Larin-Ulloa v. Gonzales, 462 F.3d 456, 464

(5th Cir. 2006). This approach permits a limited inquiry into the charging

documents to determine which statutory variant of the crime was committed.

Id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005); United States v.

Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).

Ramirez’s reply brief argues that New York’s third-degree sexual abuse

statute is not divisible. However, lack of consent under § 130.55 may be based

on several different predicates. See N.Y. Penal Law § 130.05. Among those

predicates is the incapacity to consent because the victim is less than seventeen;

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thus, one of the offenses described by the statute is sexual abuse of a minor. See

id. §§ 130.05(2)(b) & (3)(a); see also Ganzhi v. Holder, 624 F.3d 23, 29–30 (2d Cir.

2010) (per curiam) (holding that a similar New York sexual misconduct statute

is divisible based on § 130.05 and affirming the use of the modified categorical

approach to find that the sexual misconduct conviction constituted an

aggravated felony of sexual abuse of a minor). Accordingly, we apply the

modified categorical approach to determine whether Ramirez’s conviction

satisfies the generic offense. The New York statute and the criminal information

establish that his conviction was for the sexual assault of a minor. Cf. United

States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc) (“[A] statute that

prohibits acts of sexual abuse against minors will comport with the generic

meaning of ‘minor’ as long as the statute sets the age of consent below the age

of majority—which we conclude to be the age of eighteen under our method.”).

Under this approach, Ramirez committed “sexual abuse of a minor” under 8

U.S.C. § 1101(a)(43).

The focus of Ramirez’s appeal is what he characterizes as the erroneous

“assumption” that he has been convicted of an underlying felony. First, Ramirez

points to the plain meaning of the terms in the Guidelines as well as the

structure of § 2L1.2 to argue that the interpretation of a felony to include a

misdemeanor is erroneous. Recognizing that there is Fifth Circuit law that

contradicts his argument, he attempts to limit the application of that law,

contending it is inapplicable to the specific subsection at issue and that the case

has been abrogated by revisions to the Guidelines. Finally, he asserts that

recent Supreme Court jurisprudence proscribes the transformation of his

misdemeanor into a felony. We disagree.

A. Plain Meaning and Structure of the Guidelines

Ramirez maintains that for a prior conviction to constitute an aggravated

felony, the prior conviction must actually be a felony. Under this logic, his

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misdemeanor conviction cannot be considered an aggravated felony. While his

argument is seemingly persuasive in its simplicity, every circuit court to have

considered whether a misdemeanor conviction can constitute an aggravated

felony for purposes of § 1101(a)(43), including our court, has held the contrary.

See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002); see also

United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170–71 (9th Cir. 2002);

United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002);

Guerrero-Perez v. INS, 242 F.3d 727, 736 (7th Cir. 2001); United States v.

Christopher, 239 F.3d 1191, 1193 (11th Cir. 2001); United States v.

Gonzales-Vela, 276 F.3d 763, 768 (6th Cir. 2001); United States v. Pacheco, 225

F.3d 148, 153–154 (2d Cir. 2000); Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.

2000); United States v. Graham, 169 F.3d 787, 792–93 (3d Cir. 1999); cf. United

States v. Cordoza-Estrada, 385 F.3d 56, 58 (1st Cir. 2004) (per curiam) (“We

agree . . . that the statutory definition of the term ‘aggravated felony’ in §

1101(a)(43) is a term of art that includes within its ambit certain misdemeanors

under state law that carry a sentence of at least one year.”).1

In addition to differentiating between the literal meaning of the terms,

Ramirez maintains that construing a misdemeanor as a felony is inconsistent

with the graduated structure of the Guidelines. Aggravated felonies are not the

only offenses that warrant an enhancement under § 2L1.2. For example,

1

The First Circuit relied on other circuits in crafting its holding, including ours, and

these circuits held generally that a misdemeanor could constitute an aggravated felony.

Cordoza-Estrada, 385 F.3d at 58. However, the First Circuit included durational language in

its holding despite the fact that the cases on which it relied had not done so. Id. Irrespective

of this durational language, the court’s analysis still focuses on “whether the crime meets the

explicit definition of ‘aggravated felony’ under § 1101(a)(43)(F).” Id. In Cordoza-Estrada, the

durational language was included in the statute at issue. Id. Ramirez has not expressly

argued that his misdemeanor conviction should not be considered a felony because the

maximum term of imprisonment for this offense is less than one year. He touches upon this

issue, though, in his interpretation of Fifth Circuit precedent, Urias-Escobar, which will be

discussed below.

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convictions for felonies related to drug trafficking, crimes of violence, or firearms

offenses receive a sixteen-level enhancement, see U.S.S.G. § 2L1.2(b)(1)(A);

convictions for a felony not otherwise specified in the statute receive a four-level

enhancement, id. § 2L1.2(b)(1)(D); and three or more misdemeanor convictions

for crimes of violence or drug trafficking offenses receive a four-level

enhancement, id. § 2L1.2(b)(1)(E). Based on this progressive schedule of

enhancements, Ramirez argues that the Sentencing Commission could not have

intended to assign a one-time misdemeanant, such as himself, more offense-level

points than would be assigned to a three-time misdeamenant under §

2L1.2(b)(1)(E).

It appears as if this is precisely what the Sentencing Commission

intended. By relying on a long list of offenses to define “aggravated felony,” the

Sentencing Commission intended to treat certain types of one-time

misdemeanants differently than three-time misdemeanants based on the nature

of the underlying offenses. This is not just the case for enhancements based on

aggravated felonies. The Guidelines also assign a four-level enhancement for all

other felonies, where “felony” is defined as “any federal, state, or local offense

punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2,

cmt. n.2. This catch-all provision is broad and includes crimes charged as both

felonies and misdemeanors. Surely the Commission realized that a one-time

misdemeanant convicted of an offense punishable by a term of thirteen months’

imprisonment would be treated differently, i.e., as a felon, than a misdemeanant

convicted of two crimes, each only punishable by a maximum of eleven months.

To suggest that the Sentencing Commission did not intend to treat different

types of misdemeanors differently is to ignore the clear language of the

Guidelines.

To a degree, Ramirez’s plain meaning and structural arguments are

counter-productive. The plain meaning of § 1101(a)(43)(A) is that murder, rape,

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or sexual abuse of a minor constitutes an aggravated felony. The statute uses

generic offenses and does not specify classes of crimes or a durational

requirement. By contrast, other subsections of the same statute do specify

whether the offense must be a felony or a misdemeanor with a minimum term

of imprisonment. See, e.g, 8 U.S.C. § 1101(a)(43)(F) (“a crime of violence . . . for

which the term of imprisonment [is] at least one year.”); id. § 1101(a)(43)(G) (“a

theft offense . . . or burglary offense for which the term of imprisonment is at

least one year.”); id. § 1101(a)(43)(T) (“an offense relating to a failure to appear

before a court pursuant to a court order to answer to or dispose of a charge of a

felony for which a sentence of 2 years’ imprisonment or more may be imposed.”).

We can infer that Congress is capable of limiting and tailoring the enumerated

offenses in order to identify which constitute aggravated felonies since it has

done precisely that. By merely listing three crimes in subsection (A), “murder,

rape, and sexual abuse of a minor,” without limitation, Congress meant to

encompass all manner of charged crimes, misdemeanor or felony, that fit within

these generic offenses.

B. United States v. Urias-Escobar Applies

In Urias-Escobar, we held that a prior misdemeanor conviction could be

an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which is a “a crime of

violence . . . for which the term of imprisonment [is] at least one year.” 281 F.3d

165, 167 (quotation marks, citation, and footnote omitted) (alteration in

original). We explained that “[i]n defining ‘aggravated felony,’ Congress was

defining a term of art, one that includes all violent crimes punishable by one

year’s imprisonment, including certain violent misdemeanors.” Id.

Ramirez attempts to limit the holding of Urias-Escobar, and contends that

the inclusion of the “at least one year” language in § 1101(a)(43)(F) was critical

to its analysis and that our holding in Urias-Escobar should likewise be limited

to only cases involving subsection (F). While the court clearly references the

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durational language included in subsection (F), this reference was not meant to

limit the holding, but to emphasize the importance of deference to Congress.

The court explained that the language in § 1101(a)(43)(F) does not comport with

the traditional understanding that a felony is any crime punishable by more

than one year’s imprisonment. Id. at 167–68. Despite the discrepancy between

the statute and the common understanding of the term, because “Congress has

the power to define the punishment for the crime of reentering the country after

deportation,” the court must apply that definition as articulated by Congress.

Id. at 167 (quoting Graham, 169 F.3d at 792 (3d Cir. 1999)).

The limiting language in subsection (F) was not the focus of the legal

inquiry before us in Urias-Escobar; moreover, Urias-Escobar asserted the same

arguments as Ramirez, claiming “that because he was convicted of only

misdemeanor assault, that offense cannot, by definition, be an aggravated felony

under § 2L1.2.” Id. at 167. We disagreed in a similarly broad fashion. Id. at 168.

In fact, Urias-Escobar cites several other circuits in support of its conclusion,

including one from the Seventh Circuit that considered the very matter at issue

here—whether a state conviction for misdemeanor sexual abuse of a minor is an

aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Id. at 167 n.5 (citing

Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001), aff’d on reh’g, 256 F.3d 546

(holding that the defendant’s Illinois misdemeanor conviction for sexual abuse

of a fifteen-year-old girl when he was nineteen constituted an aggravated

felony)). While we did not provide a detailed analysis of Guerrero-Perez, our

favorable citation, although not controlling, severely undermines Ramirez’s

attempt to bar Urias-Escobar’s application here.

Finally, we applied Urias-Escobar in an unpublished disposition affirming

the application of the aggravated felony enhancement based upon a prior state

misdemeanor conviction for “sexual abuse of a person under fourteen.” Galvez,

102 F. App’x at 426. Ramirez attacks Galvez as inapplicable since the case is

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unpublished and contains little analysis. Galvez has no precedential value, but

it is not irrelevant. It is an indication that this court plainly meant to apply

Urias-Escobar to aid in the interpretation of all of the “aggravated felonies”

enumerated in § 1101(a)(43) and not limit its holding to the sub-category of

aggravated felonies comprising crimes of violence.

Prepared for the possibility that we would reject his proposed limitations

to Urias-Escobar, Ramirez alternatively argues that the case is no longer

applicable because of amendments to the Guidelines following our decision.

When Urias-Escobar was decided, the Guidelines permitted only two possible

enhancements for individuals convicted of illegal reentry: a sixteen-level

increase for a prior aggravated felony conviction, and a four-level increase for

any other felonies or three misdemeanor convictions. Since that time, the

Guidelines have expanded, and as discussed above, there are now four possible

enhancements available for different categories of prior convictions. Ramirez

again contends that had the Sentencing Commission intended for the Guidelines’

aggravated felony provision to include misdemeanor convictions, then it would

not have included § 2L1.2(b)(1)(E), which recommends enhancements for three

or more misdemeanor convictions for crimes of violence or drug-trafficking. He

suggests that if we apply Urias-Escobar to the present matter and accept that

his misdemeanor conviction for sexual abuse meets the definition of aggravated

felony, this will functionally abrogate subsection (E) of the Guidelines.

For the reasons already mentioned, the amendments do not prevent us

from applying Urias-Escobar here. Ramirez’s argument assumes that all

misdemeanors should be more or less equal for the purposes of sentencing, but

this contradicts the clear design of the Guidelines.

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C. Carachuri-Rosendo v. Holder and Moncrieffe v. Holder

Finally, Ramirez argues that the Supreme Court’s recent decisions in

Carachuri-Rosendo v. Holder and Moncrieffe v. Holder2 prohibit the eight-level

enhancement for his misdemeanor conviction. Focusing on the Court’s repeated

instructions to employ common sense, he contends that the underlying

sentiment in both cases suggest a prohibition against the transformation of a

misdemeanor into a felony at sentencing. Since the factual and legal issues

presented in Carachuri-Rosendo and Moncrieffe are distinguishable, neither

disturbs our holding in Urias-Escobar.

In Carachuri-Rosendo, the Court considered whether a drug possession

misdemeanor constituted an aggravated felony for the purposes of a removal

proceeding. See --- U.S. ---, 130 S. Ct. 2577, 2578 (2010). The petitioner was an

undocumented alien and he had been convicted of two separate drug possession

misdemeanors in Texas. Id. at 2580. Under the Immigration and Nationality

Act, a lawful permanent resident of the United States may request discretionary

relief that cancels the removal proceedings so long as, inter alia, he has not been

convicted of an aggravated felony. Id. at 2580–81 (citing 8 U.S.C. 1229b(a)(3)).

The petitioner sought such relief, but the government objected on the grounds

that his second misdemeanor drug conviction constituted an aggravated felony

within the meaning of the statute. Id. at 2582.

The alleged aggravated felony at issue was “illicit trafficking in a

controlled substance . . . including a drug trafficking crime (as defined in section

924(c) of title 18).” Id. at 2581 (citing 8 U.S.C. § 1101(a)(43)(B)) (alteration in

2

Ramirez did not raise Moncrieffe in his briefs. He presented the case for the first time

in a letter to the court following oral argument in support of his theory that the expansion of

Urias-Escobar to cover aggravated felonies based on sexual abuse of a minor would create

ambiguity in the Guidelines. In the letter, he also relied on the case as support for the fact

that words should be given their “proper” meaning, e.g. that a misdemeanor is not a felony.

Although we need not consider this as a separate argument, we will discuss this case for the

sake of clarity.

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original). The statute further defines a drug trafficking crime as any felony

punishable under the Controlled Substances Act (“CSA”), and a felony under the

CSA is a crime for which the maximum term of imprisonment authorized is more

than one year. Id. (citing 18 U.S.C. §§ 924(c)(2), 3559(a)). Thus, if the defendant

had been convicted of an offense that would be punishable under the CSA by

more than a year’s imprisonment, then he would have committed an aggravated

felony for the purposes of the removal proceedings.

When the petitioner was convicted of his second misdemeanor in Texas,

the fact of his prior conviction was not charged or proven. Id. at 2583. As a

result, his second conviction, as charged, would not have been a felony under the

CSA. Nevertheless, the government argued that the petitioner’s second

conviction qualified as an aggravated felony because if he had been prosecuted

in federal court, he could have been punished by a sentence of up to two years

due to do his prior conviction. Id. at 2582. The Court disagreed, holding that

since the state had not actually charged the existence of a prior conviction, he

was not “actually convicted of a crime that is itself punishable as a felony under

federal law.” Id. at 2589 (emphasis in original). Essentially, the Court rejected

the government’s attempt to modify the underlying conviction, instead requiring

that the federal court only consider the state offense as charged in the state

court, and no more.

Ramirez characterizes Carachuri-Rosendo as standing for the proposition

that, for the purposes of interpreting § 1101(a)(43), a district court is bound by

the manner in which the state court chooses to charge a crime. Ramirez

extrapolates that if a state court charges and convicts a person of a

misdemeanor, then the federal court may not characterize that offense as a

felony. But the actual holding is not so broad. Carachuri-Rosendo was not

concerned with the classification of the crime under state law, which is the issue

before us today. The Court was concerned with the government’s decision to

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import facts into prior convictions that were never charged, thus manipulating

the offense after the fact to satisfy the requirements of an aggravated felony. Id.

at 2589. Ultimately, the outcome of Carachuri-Rosendo “depended upon the fact

that [the defendant’s] conviction did not establish the fact necessary to

distinguish between misdemeanor and felony punishment under the [federal

law].” Moncrieffe, 133 S. Ct. at 1688 n.8 (discussing Carachuri-Rosendo).

Here, by contrast, there is no dispute that Ramirez has been convicted of

an offense that § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43) make punishable as

an aggravated felony. The government has not supplemented his misdemeanor

conviction with any facts that were not included when New York charged and

convicted Ramirez of this crime. Ramirez’s conviction establishes all of the facts

necessary to identify it as sexual abuse of a minor. In short, Carachuri-Rosendo

simply is not applicable here.

Similarly, Moncrieffe does not overrule Urias-Escobar and provides

Ramirez no relief. Moncrieffe considered whether a Georgia conviction for

possession with intent to distribute 1.3 grams of marijuana constituted the

aggravated felony of a drug trafficking crime. See 133 S. Ct. at 1683 (citing 8

U.S.C. § 1101(a)(43)(B)). After performing the necessary statutory gymnastics,

the Court concluded that the law defines an aggravated felony as a drug

trafficking crime if the charged offense would be a felony under the CSA. Id.

However, the petitioner’s state conviction was peculiar in that it was a wobbler

that could be charged as either a felony or a misdemeanor under the CSA. Id.

at 1684. The legal question before the Court was whether a crime that could be

both a misdemeanor and a felony under the CSA was a drug trafficking crime.

The Court applied the categorical approach and determined that the state

conviction did not constitute an aggravated felony. Id. at 1684–87. It explained

that “to satisfy the categorical approach, a state drug offense must meet two

conditions: It must ‘necessarily’ proscribe conduct that is an offense under the

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CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that

conduct.” Id. at 1685. The CSA did not necessarily prescribe felony punishment

for the prior conviction, though, since it could be punished as a misdemeanor. Id.

at 1686.

Ramirez points to dicta in Moncrieffe about using common sense;3 yet the

factual and legal issues in Moncrieffe render it inapplicable here. Moncrieffe

involved a situation where the aggravated felony at issue required that the

underlying conviction be a felony under the CSA, but the petitioner’s offense was

not exclusively a felony. The Court’s analysis involved the interpretation and

application of a number of related statutes in order to define the contours of the

aggravated felony. Here, the relevant aggravated felony is “sexual abuse of a

minor.” Unlike in Moncrieffe, which instructed the court to consult a bevy of

statutes to determine the meaning of “drug trafficking,” the provision at issue

here does not require reference to additional statutes to determine the meaning

of “sexual abuse of a minor.” We need only employ common sense to determine

whether the conviction amounts to such. Ramirez was convicted of sexually

abusing a fifteen-year-old girl. He has committed an aggravated felony; nothing

in Moncrieffe alters this analysis.

IV. Conclusion

For the reasons stated above, we AFFIRM the judgment of the district

court.

3

Moncrieffe concludes with the comment that “[t]his is the third time in seven years

that we have considered whether the Government has properly characterized a low-level drug

offense as illicit trafficking in a controlled substance, and thus an aggravated felony. Once

again we hold that the Government’s approach defies the commonsense conception of these

terms.” 133 S. Ct. at 1693 (quoting Carachuri-Rosendo, 130 S. Ct. at 2577) (internal quotation

marks omitted). Ramirez contends that this statement is an explicit signal from the Court

that “unambiguous words” such as “misdemeanor” and “felony” be given their proper meaning.

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