United States v. Osmin Alfaro

835 F.3d 470, 2016 U.S. App. LEXIS 15927, 2016 WL 4501950
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 29, 2016
Docket15-4102
StatusPublished
Cited by11 cases

This text of 835 F.3d 470 (United States v. Osmin Alfaro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Osmin Alfaro, 835 F.3d 470, 2016 U.S. App. LEXIS 15927, 2016 WL 4501950 (4th Cir. 2016).

Opinion

Affirmed by published opinion. Judge TRAXLER wrote the opinion in which Judge SHEDD and Judge FLOYD joined.

TRAXLER, Circuit Judge:

Osmin Alfaro, a native of El Salvador, entered the United States illegally when he was a teenager. In 2003, he was convicted in Maryland of third-degree sexual offense for sexually assaulting his then-estranged wife. Alfaro 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 pri- or felony conviction qualified as a crime of violence and applying a 16-level enhancement, see U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2014), the district court sentenced Alfaro to 46 months’ imprisonment. Alfaro ap *472 peals his sentence, arguing that the district court erred in concluding that his previous conviction amounted to a crime of violence. We affirm.

I.

The Sentencing Guidelines provide for a 16-level enhancement in illegal entry cases where the defendant was deported after “a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The commentary to § 2L1.2 defines “crime of violence” as

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 conviction qualifies as a crime of violence under the 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, - U.S. -, 136 S.Ct. 224, 193 L.Ed.2d 169 (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 which Alfa-ro was convicted provides that:

(a) A person may not:
(1) (i) engage in sexual contact with another without the consent of the other; and
(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 crime while aided and abetted by another;
(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
*473 (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 Ann., Crim. Law § 3-307 (2002). At the time of Alfaro’s offense, “sexual contact” was defined as “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 § 3-801(0(1) (2002).

Because § 3-307 lists alternate sets of elements that effectively create multiple versions of the crime of third-degree sexual offense, reference to the statute alone does not identify the set of elements that applied to Alfaro. We are thus faced with a “divisible” statute, a circumstance that permits us to modify the categorical approach and consult a limited universe of “extra-statutory materials ... to determine which statutory phrase was the basis for the conviction.” Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (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 of documents that we may consult. See Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). These materials establish that Alfaro was convicted of violating § 3-307(a)(l), but do not further narrow the offense. Under these 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)(l) are “forcible” offenses for purposes of U.S.S.G. § 2L1.2.

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Bluebook (online)
835 F.3d 470, 2016 U.S. App. LEXIS 15927, 2016 WL 4501950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-osmin-alfaro-ca4-2016.