United States v. Jorge Rodriguez

711 F.3d 541, 2013 WL 1092568, 2013 U.S. App. LEXIS 5290
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 15, 2013
Docket11-20881
StatusPublished
Cited by304 cases

This text of 711 F.3d 541 (United States v. Jorge Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jorge Rodriguez, 711 F.3d 541, 2013 WL 1092568, 2013 U.S. App. LEXIS 5290 (5th Cir. 2013).

Opinions

Jorge Cabecera Rodriguez (“Rodriguez”) pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to twenty-three months of imprisonment. Rodriguez now challenges his sentence, arguing that it was error for the district court to apply a sixteen-level “crime of violence” enhancement based on a prior Texas conviction for sexual assault of a child. We AFFIRM Rodriguez’s sentence, and in so doing, we adopt a plain-meaning approach to the “crime of violence” enhancements of “sexual abuse of a minor” and “statutory rape” under U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A)(ii) [hereinafter “U.S.S.G.”]. Under this approach, we hold that for the purposes of the crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii), the meaning of “minor” in “sexual abuse of a minor” is a person under the age of majority — which we conclude to be eighteen. We also hold that the age of consent for the purposes of “statutory rape” is the age of consent as defined by statute in the jurisdiction where the prior conviction was obtained. More specifically, under this plain-meaning approach, we proceed with the following four steps: First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other well-accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enumerated offense category. This plain-meaning approach is faithful to the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), but does not impose a cumbersome methodological requirement on lower courts to conduct a nationwide survey and look to the majority of state codes — as well as the Model Penal Code, federal law, and criminal law treatises — when deriving the meaning of an undefined offense category enumerated in a federal sentencing enhancement.

I. Procedural Background

Rodriguez was charged with illegal reentry after deportation following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2), and pleaded guilty without the benefit of a plea agreement. After the district court accepted Rodriguez’s plea, it ordered the preparation of a Presentence Investigation Report (“PSR”). The probation officer determined that Rodriguez had a base offense level of eight. The probation officer recommended that Rodriguez’s base offense level be increased by a sixteen-level “crime of violence” enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because Rodriguez had been deported following a 2003 conviction for sexual assault of a child under Texas Penal Code § 22.011(a)(2). From this adjusted offense level of twenty-four, Rodriguez received a three-level reduction pursuant to U.S.S.G. § 3E1.1 for his prompt acceptance of responsibility. Accordingly, Rodriguez had a total offense [545]*545level of twenty-one. Rodriguez received four criminal history points from his two prior adult criminal convictions,1 which resulted in a criminal history category of III. Rodriguez was subject to an imprisonment range of forty-six to fifty-seven months under the Guidelines based on his offense level of twenty-one and criminal history category of III.

Before the sentencing hearing, Rodriguez filed a written objection to the probation officer’s recommendation of the sixteen-level enhancement pursuant to § 2L1.2(b)(l)(A)(ii). Rodriguez argued, as he does before this court, that his conviction under Texas Penal Code § 22.011(a)(2) is not a “crime of violence” under § 2L1.2(b)(l)(A)(ii) because that statute criminalizes conduct that falls outside of the “generic, contemporary meaning” of “statutory rape” and “sexual abuse of a minor.” Specifically, he argued that the generic definitions of both offense categories require that the victim be under sixteen years of age and that the defendant be at least four years older than the victim. Rodriguez contended that because § 22.011(a)(2) applies to victims under seventeen years of age and requires only a three-year age differential, the statute is broader than these generic definitions. He also maintained that the victim was sixteen years old at the time of the offense, and that he was nineteen years old at the time.2 Rodriguez explained that without these enhancements, he would have a total offense level of ten3 and, therefore, the Guidelines range would be ten to sixteen months. He also argued that a downward departure from the Guidelines was appropriate because of his cultural assimilation and the fact that his criminal history overstated the seriousness of his prior convictions.

At the sentencing hearing, the district court first discussed Rodriguez’s objection to the sixteen-level “crime of violence” enhancement. Specifically, the district court asked Rodriguez’s counsel whether any precedent supported Rodriguez’s position that his 2003 conviction for sexual assault of a child under Texas Penal Code § 22.011(a)(2) was not a “crime of violence.” Rodriguez’s counsel expressly acknowledged that under our precedent, the district court lacked the ability to conclude [546]*546that Rodriguez’s conviction was not a “crime of violence.” In response, the district court noted that although such a concession might tie its hands with respect to Guidelines application, it retained the discretion to consider a departure from the Guidelines or a variance under 18 U.S.C. § 3553(a).

Following this statement, the discussion at the sentencing hearing turned to consideration of the district court’s discretion to grant a variance from the Guidelines. Initially, the district court asked the government about its position on the appropriateness of a variance under § 3553(a). The government agreed that a variance was appropriate on the facts of this case and recommended a three-level variance — lowering the offense level from twenty-one to eighteen, resulting in a Guidelines range of thirty-three to forty-one months.

The district court then asked Rodriguez whether he agreed with the government’s suggested three-level variance. Rodriguez’s counsel expressed appreciation for the government’s willingness to acknowledge that a Guidelines sentence would be inappropriate, but argued that the appropriate variance would be to treat Rodriguez’s conviction as a felony rather than as a “crime of violence.” Rodriguez’s counsel explained that with this suggested variance, the adjusted offense level would be ten, resulting in a Guidelines range of ten to sixteen months. Under this range, Rodriguez’s counsel recommended a sentence of one year and a day.

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Cite This Page — Counsel Stack

Bluebook (online)
711 F.3d 541, 2013 WL 1092568, 2013 U.S. App. LEXIS 5290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jorge-rodriguez-ca5-2013.