United States v. Alfaro, No. 15-4102 (4th Cir. 2016)
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Defendant plead guilty to one count of failing to register as a sex offender and one count of illegal reentry. The district court concluded that defendant's prior felony conviction qualified as a crime of violence and applied a 16-level enhancement, sentencing defendant to 46 months in prison. The court applied the plain and ordinary meaning of the Sentencing Guidelines' language and determined that defendant's prior conviction under Md. Code Ann., Crim. Law 3-307(a)(1) qualifies as a "forcible sex offense" for purposes of USSG 2L1.2. The court joined the other circuits addressing the issue and held that, for purposes of the re-entry Guideline, a “sex offense” is an offense involving sexual conduct with another person. And as the Guidelines commentary itself makes clear, a sex offense is “forcible” if it is not consensual. Therefore, the lease culpable version of the crime defined by section 3-307(a)(1) - sexual contact while aided or abetted by another - categorically qualifies as a “forcible sex offense” and thus a “crime of violence” under USSG 2L1.2. Accordingly, the court affirmed the sentence.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4102 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OSMIN ALFARO, Defendant-Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14cr-00221-PWG-1) Argued: March 24, 2016 Decided: August 29, 2016 Before Traxler, Shedd, and Floyd, Circuit Judges. Affirmed by published opinion. Judge Traxler wrote the opinion in which Judge Shedd and Judge Floyd joined. ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. TRAXLER, Circuit Judge: Osmin Alfaro, a native of El Salvador, entered the United States illegally convicted sexually in when he Maryland assaulting was of his a teenager. third-degree In sexual then-estranged 2003, he was for Alfaro wife. offense was deported in 2008, after failing to register as a sex offender in Maryland, and he illegally re-entered the country in 2010. Alfaro came to the attention of federal authorities in 2014, and he was charged with, and ultimately pleaded guilty to, one count of failing to register as a sex offender, see 18 U.S.C. § 2250, and one count of illegal re-entry, see 8 U.S.C. § 1326. After concluding that Alfaro’s prior felony conviction qualified as a crime of U.S.S.G. violence § and applying 2L1.2(b)(1)(A)(ii) a 16-level (2014), enhancement, the sentenced Alfaro to 46 months’ imprisonment. district see court Alfaro appeals his sentence, arguing that the district court erred in concluding that his previous conviction amounted to a crime of violence. We affirm. I. The enhancement Sentencing in illegal Guidelines entry provide cases where for the a 16-level defendant was deported after “a conviction for a felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). § 2L1.2 defines “crime of violence” as 2 The commentary to any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that 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 cmt. n.1(B)(iii). To determine whether Alfaro’s Maryland conviction qualifies as a crime of violence under § 2L1.2, we apply the familiar categorical approach and compare the elements of the prior offense to the elements of the generic federal offense. The prior the conviction qualifies as a crime of violence under categorical approach if the elements of the underlying statute are the same as or narrower than the definition of the generic offense. See United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir.), cert. denied, 136 S. Ct. 224 (2015). “However, if the state statute criminalizes a broader scope of conduct than the Guideline crime then it is not categorically a crime of violence.” Id. (internal quotation marks and alterations omitted) The Maryland statute under provides that: (a) A person may not: 3 which Alfaro was convicted (1) (i) engage in sexual contact with without the consent of the other; and another (ii) 1. employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; 2. suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime; 3. threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or 4. commit the abetted by another; crime while aided and (2) engage in sexual contact with another if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; (3) engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim; (4) engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old; or (5) engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old. Md. Code Alfaro’s Ann., Crim. offense, Law “sexual § 3-307 (2002). contact” 4 was At the defined time as of “an intentional touching of the victim’s or actor’s genital, anal, or other intimate area 1 for sexual arousal or gratification, or for the abuse of either party.” Md. Code. Ann., Crim. Law § 3- 301(f)(1) (2002). Because effectively § 3-307 create lists alternate multiple versions sets of of the elements crime of that third- degree sexual offense, reference to the statute alone does not identify the set of elements that applied to Alfaro. thus faced permits with us limited to which conviction.” “divisible” modify universe determine a the of statute, categorical phrase circumstance approach “extra-statutory statutory a and materials was We are the that consult . basis . . for a to the Descamps v. United States, 133 S. Ct. 2276, 2285 (2013) (internal quotation marks omitted). The record in this case includes Alfaro’s state-court indictment and jury instructions, both of which are within the universe United of documents States, 544 that U.S. we 13, may 20-21 consult. See (2005). These Shepard v. materials establish that Alfaro was convicted of violating § 3-307(a)(1), but do not further narrow the 1 offense. Under these Under Maryland law, “other intimate area” includes the buttocks, see Bible v. State, 982 A.2d 348, 358 (Md. 2009), and an intentional touching of an intimate area over the clothes still amounts to sexual contact, see LaPin v. State, 981 A.2d 34, 36-37, 45 (Md. Ct. Spec. App. 2009). 5 circumstances, the categorical approach requires us to “consider whether the full range of conduct covered by the statutory language, including the most innocent conduct proscribed by the statute, qualifies” as a predicate offense. United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). Of the various offenses identified by the Guidelines as crimes of violence, “forcible sex offense” is the only one arguably applicable to this case. 2 II. On appeal, Alfaro concedes that violations of § 3-307(a)(1) are “forcible” offenses for purposes of U.S.S.G. § 2L1.2. He argues, however, that violations of the Maryland statute do not qualify as “sex offenses.” Relying on our decision in Diaz- Ibarra, Alfaro contends that an intent to gratify sexual urges is a necessary element of a “sex offense.” As noted above, an intent to abuse rather than an intent to gratify sexual urges can support a conviction under the state statute, and Alfaro 2 We reject the government’s argument that a violation of § 3-307(a)(1) qualifies as a crime of violence because it “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 cmt. n.1(B)(iii). While the first three subsections of § 3307(a)(1) all require the use or threatened use of force, the final subsection, which merely requires that the offense be aided or abetted by another, contains no use-of-force element. See Md. Code Ann., Crim. Law § 3-307(a)(1) (2002). 6 therefore argues that his conviction does not qualify as a forcible sex offense under the categorical approach. A. In 2008, the Sentencing Commission resolved a circuit split by amending § 2L1.2 to include the parenthetical statement that the forcible-sex-offense category includes offenses “where consent to the conduct is not given or is not legally valid, such as where consent incompetent, or coerced.” to the conduct is involuntary, U.S.S.G. app. C, vol. III, Amendment 722; see United States v. Chacon, 533 F.3d 250, 257 (4th Cir. 2008) (pre-amendment “forcible” even case without holding the use that of a sex offense physical may force). 3 be The Guideline thus clarifies the circumstances under which a sex offense may be considered forcible, but it provides no insight on the issue at the heart of this appeal -- the kinds of offenses that amount to “sex offenses.” As previously explained, we answer that question through application of the categorical approach, comparing the statutory definition of the prior conviction 3 to the definition of the In United States v. Shell, 789 F.3d 335 (4th Cir. 2015), we considered the meaning of “forcible sex offenses” as used in U.S.S.G. § 4B1.2, the career-offender guideline. Noting that the Sentencing Commission did not amend § 4B1.2 to include the parenthetical statement added to § 2L1.2, we held that an offense that could be “committed without physical force and predicated on legally invalid consent” was not a “forcible sex offense” as used in § 4B1.2. Id. at 345-46. 7 generic federal offense -- here, “forcible sex offense.” In cases where the enumerated generic offense is a traditional, common-law crime, we define the generic federal offense “based on how the offense is defined ‘in the criminal codes of most states.’” United States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). “Forcible sex offense,” however, does not describe a traditional common-law crime, and the phrase invoke an established, generic structure. a broad and inclusive phrase that thus does not Because the phrase is could encompass multiple, divergent offenses in any given state, “it is difficult, if not impossible,” to sift through the multitudes of qualifying state offenses and identify a consensus set of the minimum elements necessary to define the category. United States v. Rodriguez, 711 F.3d 541, 556 (5th Cir. 2013) (en banc) (“As a conceptual matter, it is difficult, if not impossible, to identify an accurate set of discrete elements that define offense categories that do not have a generic structure that is rooted in common law. Moreover, wide variations in prohibited conduct under state codes make it difficult, if not impossible, to determine whether a majority consensus exists with respect to the element components of an offense category elements.” (citation omitted)). 8 or the meaning of those Although we did not explicitly note the difficulty of distilling the elements of non-traditional crimes, this court in Chacon did not survey the states’ criminal codes to define the “forcible” aspect of “forcible sex offenses,” but instead looked to the plain, Guidelines. ordinary meaning of the language used by the See Chacon, 533 F.3d at 257 (“The term ‘forcible sex offense’ is not defined in the Guidelines and thus must be accorded its ordinary, contemporary meaning.”). We took the same approach in Diaz-Ibarra when defining “sexual abuse of a minor,” another common-law enumerated antecedent. crime See of violence Diaz-Ibarra, 522 that lacks F.3d at a 348 (“Because the Sentencing Guidelines do not define the phrase [‘sexual abuse of a minor’], we interpret it by employing the common meaning of the words that the Sentencing Commission used.”); cf. United States v. Rangel-Castaneda, 709 F.3d 373, 377-79 (4th Cir. 2013) (surveying state laws when determining the generic definition of “statutory rape” as used in U.S.S.G. § 2L1.2). 4 This plain-meaning approach is consistent with that of 4 While courts have disagreed about whether statutory rape is a common-law offense, compare United States v. Rodriguez, 711 F.3d 541, 559 (5th Cir. 2013) (en banc), with United States v. Brooks, 841 F.2d 268, 269 (9th Cir. 1988) (per curiam), the crime is of ancient lineage and has a wellunderstood traditional meaning – carnal knowledge of a child under the age of consent, see Rodriguez, 711 F.3d at 570-71 (Graves, J., concurring in part and concurring in the judgment); Brooks, 841 F.2d at 269. Looking to the states’ various (Continued) 9 other circuits. See United States v. Ramirez-Garcia, 646 F.3d 778, 783 (11th Cir. 2011) (“For offenses not developed in the common law, ordinary, words . courts define contemporary, . . .” a and (internal generic common offense meaning quotation of marks based the on the statutory omitted)); United States v. Trinidad-Aquino, 259 F.3d 1140, 1144 (9th Cir. 2001) (where sentencing enhancement turns on enumerated offense that is not “a traditional common law crime,” the enumerated offense “can only contemporary, be and construed common by considering meaning of the the ordinary, language”); United States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001) (“Martinez-Carillo’s state conviction squarely fits within the federal understanding of the phrase ‘sexual abuse of a minor,’ which adopts the ordinary, contemporary, and common meaning of the words.”); accord Rodriguez, 711 F.3d at 556; United States v. Romero–Hernandez, 505 F.3d 1082, 1087 (10th Cir. 2007); United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir. 2005); United States v. Londono-Quintero, 289 F.3d 147, 153 (1st Cir. 2002). formulations to determine the generic federal definition of statutory rape thus does not present the same difficulties as does identifying a consensus set of elements defining “forcible sex offense” or “sexual abuse of a minor.” 10 Accordingly, following the approach laid out in Chacon, we turn to the plain and ordinary meaning of the Guidelines’ language to determine whether a conviction under Md. Code Ann., Crim. Law § 3-307(a)(1) qualifies as a “forcible sex offense” for purposes of U.S.S.G. § 2L1.2. 5 B. The ordinary construction of the “sex offense” phrase suggests that it simply refers to criminal offenses involving sexual conduct. See Black’s Law Dictionary (10th ed. 2014) (defining “sexual offense” as “[a]n offense involving unlawful sexual conduct, such as prostitution, indecent exposure, incest, pederasty, and bestiality”); American Heritage College Dictionary (3d ed. 1997) (defining “sex” as, inter alia, “[t]he sexual urge or instinct as it manifests itself in behavior”). While that definition is expansive, the language and history of § 2L1.2 make it clear that “forcible sex offenses” is a broad category encompassing a wide range of statutory offenses. After all, the Sentencing Commission did not limit its definition of “crime of violence” to include 5 only the most serious sex In Chacon, we concluded that the word “forcible” did not require the use of physical force as it includes compulsion effectuated through power or pressure. See Chacon, 533 F.3d at 257. However, because the defendant did not dispute that his Maryland conviction for second-degree sexual offense qualified as a “sex offense,” Chacon did not offer a comprehensive definition of the full phrase “forcible sex offense.” See id. 11 offenses, such as rape, but instead included all sex offenses that are forcibly committed. Moreover, the Commission further confirmed the broad reach of the category by amending the reentry Guideline to clarify that a sex offense may be a forcible offense even in the absence of physical force presence of factual (but legally invalid) consent. and in the See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Indeed, the circuits considering the question have defined the “sex broadly. offense” portion of “forcible sex offense” very For example, the Fifth Circuit defines “sex offense” as an “offense proscribing sexual conduct,” United States v. Garza-Guijan, 714 F.3d 332, 334 (5th Cir. 2013), while the Tenth Circuit defines it as “an offense involving unlawful sexual conduct,” Romero-Hernandez, 505 F.3d at 1087 (internal quotation marks and alteration omitted). Similarly, in the Ninth and Eleventh Circuits, a “sex offense” is an offense involving a “sexual act,” United States v. Quintero-Junco, 754 F.3d 746, 753 (9th Cir. 2014) or “sexual contact,” United States v. Contreras, 739 F.3d 592, 597 (11th Cir. 2014). Alfaro insists, however, offense” are too broad. that these definitions of “sex Relying on our decision in Diaz-Ibarra, Alfaro contends that an intent to gratify sexual urges is a necessary element of a “sex offense.” 12 The question in Diaz-Ibarra was whether the defendant’s convictions for attempted child molestation qualified as “sexual abuse of a minor” and thus a crime of violence under U.S.S.G. § 2L1.2. (Like the “forcible sex offense” phrase at issue in this case, “sexual abuse of a minor” is identified as a crime of violence by the commentary to U.S.S.G. § 2L1.2.) Observing that the common meaning of the word “sexual” was “of or relating to the sphere of behavior associated with libidinal gratification,” 522 F.3d at 349 (internal quotation marks omitted), the DiazIbarra court defined the phrase “sexual abuse of a minor” as the “physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification,” (internal quotation marks omitted). id. at 352 Alfaro argues that there is no meaningful difference between “sex” and “sexual,” and that the same meaning must be applied to both words, particularly since the words are used in the same sentence in the Guidelines commentary. forcible Accordingly, Alfaro argues that to qualify as a sex offense under the Guidelines, the underlying offense must require that the prohibited conduct be committed for a purpose associated with sexual gratification. And because § 3-307(a)(1) can be violated with an intent to abuse rather than an intent to gratify sexual urges, Alfaro contends that his conviction does not qualify as disagree. 13 a forcible sex offense. We While the words “sex” and “sexual” may have similar meanings in certain contexts, the Diaz-Ibarra court was defining the phrase “sexual abuse of a minor,” while we are defining the phrase “forcible different, sex and interpretations offense.” those of “sex” Those differences and “sexual.” phrases require See are very different Yates v. United States, 135 S. Ct. 1074, 1082 (2015) (“[I]dentical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute.”). “Sexual abuse of a minor,” the phrase at issue in DiazIbarra, is a “broad” phrase “capturing physical or nonphysical conduct,” United States v. Perez-Perez, 737 F.3d 950, 953 (4th Cir. 2013), and it is the sexual-gratification element polices the line between lawful and unlawful conduct. that Indeed, as the court made clear in Diaz-Ibarra, the intent to gratify sexual urges is central to the offense of sexual abuse of a minor: “The clear focus of the phrase [‘sexual abuse’] is on the intent of the abuser -- sexual gratification -- not on the effect on the abused. However one styles it, ‘sexual abuse’ is an intent-centered phrase; the misuse of the child for sexual purposes completes the abusive act.” Id. at 350. The court in Diaz-Ibarra thus did not hold that the word “sexual” must always and in all circumstances be defined to include an intent to gratify sexual urges; it held that an intent to gratify sexual 14 urges is meaning central of the to and phrase therefore “sexual is part abuse.” of the ordinary See id. at 349 (explaining that the court must “consider the phrase as a whole to arrive at its meaning”). An intent to gratify sexual urges, however, is not central to the category offenses.” of offenses qualifying as “forcible sex Although this circuit has not previously formulated a comprehensive definition of “forcible sex offense,” we have noted that the phrase is “intended to connote rape or other qualifying conduct.” Rangel-Castaneda, 709 F.3d at 380; accord United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th Cir. 2007) (“[R]ape is a ‘sex offense,’ as the term is commonly understood.”). Thus, however “forcible sex offense” is defined, that definition must, at the very least, be broad enough to include rape in its scope. While there is variation in the states’ (however definitions of rape labeled), not a single state includes a sexual-gratification element when defining the most serious forms of the offense. 6 6 Because the intent to See Ala. Code § 13A-6-61 (first-degree rape); Alaska Stat. Ann. § 11.41.410 (first-degree sexual assault); Ariz. Rev. Stat. Ann. § 13-1406 (sexual assault); Ark. Code Ann. § 5-14103(a) (rape; no sexual-gratification element if intercourse involved); Cal. Penal Code § 261(a) (rape); Colo. Rev. Stat. Ann. § 18-3-402(1)(a) (sexual assault; no sexual-gratification element if penetration involved); Conn. Gen. Stat. Ann. § 53a70(a)(1) (first-degree sexual assault); Del. Code Ann. tit. 11, § 773 (first-degree rape); Fla. Stat. Ann. § 794.011 (sexual (Continued) 15 gratify sexual urges is simply not relevant to the most serious forms of the paradigmatic forcible sex offense, we cannot battery); Ga. Code Ann. § 16-6-1 (rape); Haw. Rev. Stat. Ann. § 707-730 (first-degree sexual assault); Idaho Code Ann. § 18-6101 (rape); 720 Ill. Comp. Stat. Ann. 5/11-1.20 (criminal sexual assault); Ind. Code Ann. § 35-42-4-1 (rape); Iowa Code Ann. § 709.1 (sexual abuse); Kan. Stat. Ann. § 21-5503 (rape); Ky. Rev. Stat. Ann. § 510.040 (first-degree rape); La. Stat. Ann. § 14:41 (rape); Me. Rev. Stat. tit. 17-A, § 253 (gross sexual assault); Md. Code Ann., Crim. Law § 3-303 (first-degree rape); Mass. Gen. Laws Ann. ch. 265, § 22 (rape); Mich. Comp. Laws Ann. § 750.520b (first-degree criminal sexual conduct); Minn. Stat. Ann. § 609.342 (first-degree criminal sexual conduct; no sexualgratification element if sexual penetration involved); Miss. Code. Ann. § 97-3-95 (sexual battery); Mo. Ann. Stat. § 566.030 (first-degree rape); Mont. Code Ann. § 45-5-503 (sexual intercourse without consent); Neb. Rev. Stat. Ann. § 28-319 (first-degree sexual assault); Nev. Rev. Stat. Ann. § 200.366 (sexual assault); N.H. Rev. Stat. Ann. § 632-A:2 (aggravated felonious sexual assault); N.J. Stat. Ann. § 2C:14-2(a) (aggravated sexual assault); N.M. Stat. Ann. § 30-9-11 (criminal sexual penetration); N.Y. Penal Law § 130.35 (first-degree rape); N.C. Gen. Stat. Ann. § 14-27.21 (first-degree forcible rape); N.D. Cent. Code Ann. § 12.1-20-03 (gross sexual imposition); Ohio Rev. Code Ann. § 2907.02 (rape); Okla. Stat. Ann. tit. 21, § 1111 (rape); Or. Rev. Stat. Ann. § 163.375 (first-degree rape); 18 Pa. Stat. and Cons. Stat. Ann. § 3121 (rape); 11 R.I. Gen. Laws Ann. § 11-37-2 (first-degree sexual assault); S.C. Code Ann. § 16-3-652 (criminal sexual conduct); S.D. Codified Laws § 22-22-1 (rape); Tenn. Code Ann. § 39-13-502 (aggravated rape); Tex. Penal Code Ann. § 22.021 (aggravated sexual assault); Utah Code Ann. § 76-5-402 (rape); Vt. Stat. Ann. tit. 13, § 3252 (sexual assault); Va. Code Ann. § 18.2-61 (rape); Wash. Rev. Code Ann. § 9A.44.040 (first-degree rape; no sexual-gratification element if vaginal intercourse involved); W. Va. Code Ann. § 61-8B-3 (first-degree sexual assault; no sexual-gratification element if sexual intercourse involved); Wis. Stat. Ann. § 940.225 (first-degree sexual assault; no sexual-gratification element if intercourse involved); Wyo. Stat. Ann. § 6-2-302 (first-degree sexual assault; no sexualgratification element if intercourse involved). 16 conclude that an intent to gratify sexual urges is part of the ordinary meaning of “forcible sex offense.” Moreover, since no state requires proof of an intent to gratify sexual urges for a rape conviction, accepting Alfaro’s argument would exclude all convictions for the most serious of all forcible sex offenses from the definition of “forcible sex offense,” while at the same time permitting many less-serious crimes to be so classified. 7 We decline to endorse a definition that would lead to such illogical results. 8 Cf. Voisine v. 7 In many states, less serious sexual offenses -- those involving touching rather than penetration, for example -- do include the intent to gratify sexual urges as an element of the offense. See, e.g., Ind. Code Ann. § 35-42-4-8 (sexual battery); Kan. Stat. Ann. § 21-5505 (sexual battery); Ky. Rev. Stat. Ann. §§ 510.110 & 510.010(7) (sexual abuse); Neb. Rev. Stat. Ann. §§ 28-320 & 28-318(5) (second- and third-degree sexual assault); N.C. Gen. Stat. Ann. § 14-27.33 (sexual battery); N.D. Cent. Code Ann. §§ 12.1-20-07 & 12.1-20-02(5) (sexual assault); Or. Rev. Stat. Ann. §§ 163.427 & 163.305(6) (sexual abuse); 18 Pa. Stat. and Cons. Stat. Ann. §§ 3126 & 3101 (indecent assault); 11 R.I. Gen. Laws Ann. §§ 11-37-4 & 11-371(7) (second-degree sexual assault); Tenn. Code Ann. §§ 39-13505 & 39-13-501(6) (sexual battery); Va. Code Ann. §§ 18.2-67.4 & 18.2-67.10(6) (sexual battery); W. Va. Code Ann. §§ 61-8B-7 & 61-8B-1 (6) (sexual abuse). 8 Alfaro suggests that rape offenses predicated on sexual intercourse would qualify as forcible sex offenses because intercourse requires “an erect penis, which necessarily involves sexual gratification.” Brief of Appellant at 21. The categorical approach, however, is concerned only with the elements of the underlying offense, not the manner in which the offense was actually committed. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (“[T]he categorical approach . . . focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic (Continued) 17 United States, 136 S. Ct. 2272, 2280 (2016) (addressing statute barring possession of firearms by those convicted of a “misdemeanor crime of violence” and rejecting definition of that phrase that “risk[ed] rendering [the statute] broadly inoperative in . . . 35 jurisdictions”). Accordingly, we reject Alfaro’s argument that to qualify as a forcible sex offense under U.S.S.G. § 2L1.2, the underlying offense must include as an element the intent to gratify sexual urges. Instead, we join the other circuits addressing the issue and hold that, for purposes of the re-entry Guideline, a “sex offense” is an offense involving sexual conduct with another person. See Quintero-Junco, 754 F.3d at 753; Contreras, 739 F.3d at 597; Garza-Guijan, 714 F.3d at 334; Romero-Hernandez, 505 F.3d at 1087. And as the Guidelines commentary itself makes clear, a sex offense is “forcible” if it is not consensual. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (explaining that “forcible sex offenses” includes offenses “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced”). While this [offense and] ignor[es] the particular facts of the case.”). Thus, even assuming that an intent to gratify sexual urges is factually present in most rape cases, the absence of a sexualgratification element would prevent rape offenses from qualifying as forcible sex offenses under Alfaro’s proposed definition. 18 definition is broad, its breadth is compelled by the expansive language chosen by the Sentencing Commission -- language that, in our view, provides no principled basis for us to narrow the category of qualifying offenses. C. Having ultimate defined question the in relevant this phrase, case: we Whether turn the now least to the culpable version of the crime defined by § 3-307(a)(1) -- sexual contact while aided or abetted by another -- categorically qualifies as a “forcible sex offense” and thus a “crime of violence” under U.S.S.G. § 2L1.2. We believe affirmative. require that question must be answered in the All forms of the offense as charged to the jury nonconsensual sexual contact, and the jury was thus required to find that Alfaro engaged in sexual contact without consent in order to convict him. Accordingly, the district court did not err by treating Alfaro’s Maryland conviction as a “forcible sex offense” under U.S.S.G. § 2L1.2(b)(1)(A). Quintero-Junco, 754 F.3d at 753 (statute prohibiting See non- consensual sexual contact with person over the age of 15 and defining “sexual contact” as the direct or indirect touching of “any part comfortably of the within genitals, the anus broad or female definition of breast” forcible “fits sex offense”); United States v. Diaz–Corado, 648 F.3d 290, 293 (5th 19 Cir. 2011) (per curiam) (state statute prohibiting the non- consensual, through-clothing “touching of the victim’s intimate parts . . . for the purposes of sexual arousal, gratification, or abuse” constitutes a forcible sex offense under U.S.S.G. § 2L1.2); Romero-Hernandez, 505 F.3d at 1087-88 & n.4 (conviction under statute prohibiting non-consensual touching, even through clothing, of “victim’s intimate parts” for “purposes of sexual arousal, gratification, or abuse” qualifies as forcible sex offense). III. For the foregoing reasons, we find no error by the district court, and we hereby affirm Alfaro’s sentence. AFFIRMED 20
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