'Lewd Assault Act' is a Crime of Violence

The Eleventh Circuit Court of Appeals held this week that a “lewd assault act” qualifies as a crime of violence to support a sentencing enhancement.

William Cortes-Salazar, a citizen of Colombia, appealed his 57-month sentence for illegal reentry of a deported alien based on a 13-level sentencing enhancement. Prior to his illegal reentry offense, Cortes-Salazar was convicted in Florida for marijuana possession in 1990 and for commission of a “lewd assault act” in 1993, and removed from the United States in December 1995. He later reentered the United States without permission, was indicted for the illegal reentry, and pleaded guilty to the offense.

The district court enhanced Cortes-Salazar's base offense level by 16 levels because he had previously been convicted of a "crime of violence" under the U.S. Sentencing Guidelines, and reduced it by 3 levels for acceptance of responsibility.

On appeal, Cortes-Salazar argued to the Eleventh Circuit Court of Appeals that the district court erred in determining that his prior conviction under Fla. Stat. § 800.04 for a lewd assault act qualified as sexual abuse of a minor, and, therefore, as a crime of violence under the Sentencing Guidelines. The Eleventh Circuit disagreed, and affirmed the sentence.

In United States v. Padilla-Reyes, the Eleventh Circuit held that the 1987 version of Fla. Stat. §800.04 constituted sexual abuse of a minor for aggravated felony purposes under a previous version of the Sentencing Guidelines. In that case, the court held that a violation of the statute, with or without victim contact, triggered sentencing enhancement.

Though the court recognized that violations of §800.04 might not involve any physical contact with the victim, it concluded that all possible violations involved the misuse or maltreatment of a child for sexual gratification, and constituted sexual abuse of a minor. While the amended version of §800.04 under which Cortes-Salazar was convicted differed slightly from the version discussed in Padilla-Reyes, the elements of Cortes-Salazar's offense were identical to the elements of the offense in the 1987 version of the law.

A crime of violence does not have to include physical contact, according to the Eleventh Circuit Court of Appeals. When deciding whether to strike a plea deal, keep in mind that even "lewd assault" crimes can trigger sentencing enhancements.

Related Resources:

• U.S. v. Cortes-Salazar (FindLaw's CaseLaw)
• Eleventh Circuit Uphold ACCA Enhancement for False Imprisonment (FindLaw's Eleventh Circuit Blog)
• Lafler, Frye Don't Warrant Second or Successive Motions (FindLaw's Eleventh Circuit Blog)