United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 29, 2004 IN THE UNITED STATES COURT OF APPEALS June 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________
No. 03-40741 _____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE SARMIENTO-FUNES
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.
KING, Chief Judge:
The defendant pleaded guilty to illegally reentering the
country after having been deported. On appeal, he principally
challenges the imposition of a sixteen-level sentence enhancement
under U.S.S.G. § 2L1.2. We affirm the conviction but vacate the
sentence and remand for resentencing.
I. BACKGROUND
Defendant-Appellant Jose Sarmiento-Funes, a citizen of
Honduras, was indicted in January 2003 for violating 8 U.S.C.
§ 1326 by unlawfully reentering the United States after having been removed following an aggravated felony conviction.
Sarmiento-Funes pleaded guilty. The forty-eight-month sentence
imposed by the district court in May 2003 included a sixteen-
level enhancement based on a previous conviction for a “crime of
violence” within the meaning of U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)
(2002).
The prior conviction that generated the sentence enhancement
was a 2002 Missouri conviction for “sexual assault,” which the
state statutes define as follows: “A person commits the crime of
sexual assault if he has sexual intercourse with another person
knowing that he does so without that person’s consent.” MO. ANN.
STAT. § 566.040(1) (West 1999).1 Sarmiento-Funes objected to the
enhancement, pointing out that Missouri has a different statute,
§ 566.030, that outlaws “forcible rape.” The sexual assault
statute under which he was convicted, Sarmiento-Funes urged the
district court, does not require the use of force. The district
1 The record in this case includes a state court criminal information, but the information only tracks the language of the statute. This case accordingly does not involve the question of the extent to which the sentencing court can use charging papers to narrow down a broad statute in order to determine more precisely the nature of the conduct of which the defendant was convicted. See, e.g., Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Calderon-Pena, 339 F.3d 320 (5th Cir. 2003), vacated & reh’g granted, 362 F.3d 293 (5th Cir. 2004). Further, although the Presentence Investigation Report (PSR) contains some additional details possibly gleaned from a police report (although their provenance is unclear) that information cannot be used in determining whether Sarmiento-Funes committed a “crime of violence.” See United States v. Turner, 349 F.3d 833, 836-37 (5th Cir. 2003); United States v. Allen, 282 F.3d 339, 342-43 (5th Cir. 2002).
2 court overruled the objection, concluding that the offense
defined by § 566.040 has as an element the use of force, namely
the force inherent in sexual penetration.
Sarmiento-Funes appeals, challenging primarily the sentence
enhancement but also the constitutionality of part of the
illegal-reentry statute.
II. ANALYSIS
A. Sentence Enhancement
The 2002 Sentencing Guidelines, the version in effect at the
time of sentencing, provide that the term “crime of violence”:
(I) means an 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; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002). An offense can be a
“crime of violence” either because it has as an element the use
of force under paragraph (I) or because it fits within the
enumerated list in paragraph (II). United States v. Rayo-Valdez,
302 F.3d 314, 316-19 (5th Cir. 2002). The district court
enhanced the defendant’s sentence based on paragraph (I). We
review the district court’s interpretation of the Sentencing
Guidelines de novo and any findings of fact for clear error.
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).
3 1. Use of force as an element
We begin by observing that Sarmiento-Funes is correct that
the Missouri sexual assault statute does not require force in the
same sense as does a traditional forcible rape statute. That is,
the sexual assault statute does not require that physical
violence, coercion, or threats accompany the sex act. Instead,
the sexual assault statute makes it an offense for a person to
“ha[ve] sexual intercourse with another person knowing that he
does so without that person’s consent.” MO. ANN. STAT.
§ 566.040(1). The crime is a Class C felony that carries a
statutory maximum of seven years, including both imprisonment and
conditional release. Id. §§ 558.011(1), 566.040(2). As noted
above, a different Missouri statute outlaws rape that is
accomplished with “the use of forcible compulsion.” Id.
§ 566.030(1).2 The statutory maximum sentence for forcible rape
under Missouri law is life imprisonment. Id. § 566.030(2). Of
course, that Missouri has a forcible rape statute that evidently
describes a “crime of violence” does not necessarily mean that
Missouri’s relatively less aggravated sexual assault statute
therefore lacks the use of force as an element. The district
court did not find the existence of the two different statutes
2 Forcible compulsion is defined as “[p]hysical force that overcomes reasonable resistance; or . . . [a] threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person . . . .” MO. ANN. STAT. § 556.061(12) (West 1999).
4 determinative, and the government agrees with the district
court’s conclusion that the sexual assault offense involves the
“use of force” for purposes of the Guidelines regardless of
whether the offense involves overt physical violence, forcible
compulsion, or threats.
The Missouri sexual assault statute requires that the
perpetrator engage in sexual intercourse, which means “any
penetration, however slight.” Id. § 566.010(4). The government
has at points suggested that the statute involves the use of
force merely by virtue of the force inherent in the act of
penetration. Its principal support for this contention is United
States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir. 2002). That case
did not involve the “crime of violence” definition at issue here
but instead considered whether a certain Washington sex offense
counted as “rape” within the meaning of 8 U.S.C.
§ 1101(a)(43)(A). The Ninth Circuit held that the term “rape”
did not require any force beyond that inherent in the act of
penetration. Id. at 996.3 The court therefore held that
3 In this appeal we are not interpreting the meaning of the term “rape” as it is used in 8 U.S.C. § 1101(a)(43)(A), and so Yanez-Saucedo is not directly on point. The meaning of “rape” might be highly relevant on remand, however: Under § 2L1.2(b)(1)(C), Sarmiento-Funes would be eligible for an eight- level sentence enhancement if his prior offense constituted the “aggravated felony” of “rape” within the meaning of § 1101(a)(43)(A), the same provision at issue in Yanez-Saucedo. A holding that the sixteen-level “use of force” enhancement was improper does not mean that the eight-level “rape” enhancement is unavailable. See infra note 13.
5 although the state statute did not require forcible compulsion,
the defendant’s prior offense could still be considered rape
because of the force inherent in penetration. Id. at 995-96.4
It is true that the very act of penetration (like less
serious and intimate forms of bodily contact) involves “force” in
a physics or engineering sense. See Flores v. Ashcroft, 350 F.3d
666, 672 (7th Cir. 2003) (noting that practically every crime
involves “force” in this sense). Nonetheless, it is not open to
us to hold that the force of penetration per se amounts to the
“use of force” to which the Sentencing Guidelines refer. Indeed,
a recent decision of this court rejects that precise proposition.
See United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)
(holding that a certain sex crime did not involve the “use of
force” despite the fact that the defendant was charged with
4 The government reads a certain Missouri case, State v. Niederstadt, 66 S.W.3d 12, 15 (Mo. 2002), as demonstrating that the Missouri courts recognize that penetration is itself a type of force. The defendant, for his part, cites a different Missouri case, State v. Dighera, 617 S.W.2d 524, 533 n.8 (Mo. Ct. App. 1981), that distinguishes between rape and sexual assault and implies that Missouri law does not consider sexual assault “forceful.” Although we look to state law for the elements of an offense, state law does not govern the crucial question here: whether the Missouri sexual assault crime inherently involves the use of force. That question depends on the meaning of the phrase “use of physical force” in the Sentencing Guidelines, a question of federal law that does not turn on Missouri’s particular view of whether penetration inherently involves force. See United States v. Shannon, 110 F.3d 382, 385, 386 (7th Cir. 1997) (en banc); United States v. Vasquez-Balandran, 76 F.3d 648, 649-50 (5th Cir. 1996); cf. Taylor, 495 U.S. at 590-92 (explaining that the term “burglary” as it is used in a sentence-enhancement statute has a uniform, nationwide meaning, regardless of how individual states label offenses).
6 “caus[ing] his sex organ to contact and penetrate the female sex
organ of [the victim]”);5 accord United States v. Meader, 118
F.3d 876, 881-82 (1st Cir. 1997); Shannon, 110 F.3d at 384-85
(both holding that statutory rape offenses did not involve the
use of force under U.S.S.G. § 4B1.2); cf. United States v.
Velazquez-Overa, 100 F.3d 418, 420 (5th Cir. 1996) (stating that
“physical force is not an element of the crime” of sexual contact
with a child). Therefore, we cannot conclude that the act of
penetration itself is enough to supply the force required under
§ 2L1.2 cmt. n.1(B)(ii)(I).
Of course, the Missouri statute does not criminalize mere
penetration, but instead outlaws penetration that the perpetrator
knows is without the consent of the victim, a crucial
consideration. The government argues that if penetration does
not itself entail the use of force, then it becomes forceful when
it occurs without consent (even though the bodily contact itself
is the same in either case). Here again we find that our recent
Houston decision provides substantial guidance. Houston held
that statutory rape, TEX. PENAL CODE ANN. § 22.011(a)(2) (Vernon
2003), does not have as an element the use of physical force
against the person of another. 364 F.3d at 246. Significantly
for present purposes, the Houston panel reasoned that the
5 Houston was interpreting U.S.S.G. § 4B1.2(a)(1), a Guidelines provision that employs “use of force” language identical to that employed in U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)(I).
7 statutory rape offense does not involve the use of force because
the statute proscribes “consensual” sexual conduct. Id.
Consensual sex, according to Houston, does not involve the use of
force, even though the sex happens to be illegal. Houston’s
holding that consensual sex does not involve the use of force
does not compel the proposition that nonconsensual intercourse
does involve the use of force, but such a result would not be
inconsistent with Houston’s reasoning.
In applying Houston to the case at hand, we observe that
Houston’s statement that statutory rape is consensual is in one
sense counter-intuitive, for it is often said that statutory rape
is considered rape precisely because the minor victim of the
crime is, as a matter of law, deemed incapable of giving consent.
See Turner v. State, 246 S.W.2d 642, 643 (Tex. Crim. App. 1952);
Duby v. State, 735 S.W.2d 555, 557 (Tex. App.–Texarkana 1987,
pet. ref’d) (“A person under the age of seventeen is legally
incapable of giving consent to intercourse.”); see also 3 CHARLES
E. TORCIA, WHARTON’S CRIMINAL LAW § 285, at 68-69 (15th ed. 1995)
(citing cases from various jurisdictions). But cf. Garcia v.
State, 661 S.W.2d 96, 99 (Tex. Crim. App. 1983) (McCormick, J.,
concurring) (“Children under seventeen are not presumed by the
law to be incapable of consent, their consent is simply
irrelevant.”). What Houston’s statements regarding consent must
be taken to mean is that the sex at issue in statutory rape may
be consensual as a matter of fact, even if the law disregards or
8 countermands the victim’s decision. The rule that emerges from
Houston, therefore, is that intercourse does not involve the use
of force when it is accompanied by consent-in-fact.
Although the Missouri sexual assault statute speaks of
intercourse “without consent,” the state statutes explicitly
distinguish between “assent” and “consent,” providing that
“assent” sometimes does not count as “consent.”6 The Missouri
sexual assault statute therefore reaches intercourse to which the
victim assents, though that assent is a legal nullity, such as
when it is the product of deception or a judgment impaired by
intoxication. But under the rule of Houston, described above,
illegal intercourse with consent-in-fact, i.e. assent, does not
6 Section 556.061(5) of the Missouri Code provides:
[C]onsent or lack of consent may be expressed or implied. Assent does not constitute consent if:
(a) It is given by a person who lacks the mental capacity to authorize the conduct charged to constitute the offense and such mental incapacity is manifest or known to the actor; or
(b) It is given by a person who by reason of youth, mental disease or defect, or intoxication, is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
(c) It is induced by force, duress or deception[.]
This list of situations in which assent does not equal consent does not include the scenario in which the perpetrator incapacitates the victim, such as by drugging the victim without her knowledge. Such conduct would fall under Missouri’s forcible rape statute. See MO. ANN. STAT. § 566.030(1).
9 involve the use of force.7 Since some (though not all) methods
of violating the Missouri statute do not require the use of
physical force against the victim, the statute therefore does not
have, as an element, the use of physical force against the person
of another. See United States v. Vargas-Duran, 356 F.3d 598, 605
(5th Cir. 2004) (en banc).8
Our conclusion finds support in the Sixth Circuit’s decision
in United States v. Arnold, 58 F.3d 1117 (6th Cir. 1995). There,
the question was whether a Tennessee conviction for assault with
intent to commit sexual battery involved the “use, attempted use,
or threatened use of physical force” under U.S.S.G. § 4B1.2. The
court observed that sexual battery could, according to Tennessee
law, be accomplished in a number of disparate ways, namely
7 The dissent argues that the Missouri offense involves the use of force because the victim is unable to give consent-in- fact. We respectfully disagree, inasmuch as § 556.061(5) explicitly contemplates that the victim can manifest “assent,” i.e. consent-in-fact, without that manifestation qualifying as legal consent. Moreover, we do not find persuasive the dissent’s approach to intercourse induced by deception, which the statute also explicitly contemplates. The victim of deception manifests consent-in-fact, though it is legally vitiated. We do not believe that, under Houston, penetration that occurs under such a circumstance involves the use of physical force against the victim. 8 Since our decision relies on Houston’s distinction between consent-in-fact and consent-in-law, we leave open the question whether intercourse not accompanied by extrinsic force or threats could nonetheless be said to involve the “use of force” for Guidelines purposes when there is no factual assent to the sex act. That is, it is possible that there could be a “use of force” for Guidelines purposes even when there is no “force” as that term is normally understood in connection with forcible rape laws.
10 through: (1) the use of force or coercion, (2) the mental
deficiency or physical incapacity of the victim, or (3) fraud.
Id. at 1121-22. The court concluded that while the “use of
force” for Guidelines purposes was involved in some methods of
violating the statute, force was not required in all cases; in
particular, the court pointed to fraud as a manner of violating
the statute that “would not involve an element of force or
attempted or threatened force.” Id. at 1122; see also 2 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAW § 17.1(a), at 605 (2d ed. 2003)
(referring to fraud as an “alternative[]” to force in the rape
context). Deception is likewise one of the methods of committing
sexual assault under Missouri law, see MO. ANN. STAT.
§ 556.061(5)(c), and we agree that a sex offense accomplished in
this manner does not involve the “use of force” within the
meaning of the applicable Sentencing Guidelines.
In its final argument that the Missouri offense requires the
use of force, the government contends that unconsented-to sex is
itself a form of bodily injury. While we are sympathetic to the
sentiment the government is expressing, we cannot adopt this view
of the meaning of bodily injury. To begin with, as we observed
earlier, the Missouri offense reaches some assented-to sex.9 The
9 This factor distinguishes the present case from United States v. Brown, the Seventh Circuit case on which the government relies in arguing that the Missouri statute involves physical injury. Brown held that “forced nonconsensual sex with strangers is ‘conduct that presents a serious potential risk of physical injury to another’” under the Armed Career Criminal Act, 18
11 offense is certainly a gross and outrageous affront to the victim
in any case. But to say that the Missouri statute per se
involves bodily injury, while a way of amplifying one’s
condemnation of the crime, reaches beyond the normal
understanding of the term “bodily injury.” This court has
previously considered the Texas crime of sexual contact with a
child--an offense that likely affects the victim as seriously as
does the crime at issue here--and yet we have said that that
sexual contact does not amount to the use of physical force. See
Velazquez-Overa, 100 F.3d at 420. Some sex offenses do include
an element of bodily injury (as that term is normally
understood), e.g., LA. REV. STAT. ANN. § 14:43.2 (West 1997)
(aggravated sexual battery); TEX. PENAL CODE ANN.
§ 22.021(a)(2)(A)(i) (Vernon 2003) (aggravated sexual assault),
but this Missouri statute does not.
2. “Forcible sex offenses”
Although the district court enhanced the defendant’s
sentence under paragraph (I) of § 2L1.2’s “crime of violence”
definition, the government urges that we can also affirm the
enhancement on the alternative basis that the defendant’s prior
conviction--whether or not it satisfies paragraph (I)’s general
U.S.C. § 924(e)(2)(B)(ii) (2000). See 273 F.3d 747, 750 (7th Cir. 2001). In reaching that conclusion, the court observed that, in addition to the risk of collateral injuries, the compelled sex act could itself be considered a type of “physical injury.” Id. at 750-51.
12 definition--is an offense specifically enumerated in paragraph
(II), namely a “forcible sex offense.”
Neither side has been able to provide us with definitive
guidance on the meaning of “forcible sex offense” as that term is
used in § 2L1.2. The Sentencing Guidelines and their commentary
do not define the term. The parties agree that certain crimes,
such as forcible rape in the traditional sense, clearly count as
“forcible sex offenses,” and they also agree that certain other
crimes involving wholly consensual sex (such as adultery) are not
“forcible sex offenses.” The particular crime at issue here,
MO. ANN. STAT. § 566.040, falls somewhere in the middle of those
two agreed extremes. At certain points, the parties treat the
question whether the offense is a “forcible sex offense” as a
corollary to the question addressed earlier, i.e. whether the
prior offense has as an element the use of force for purposes of
paragraph (I): If the sexual assault offense does not involve the
use of force, then it is not a “forcible sex offense”; if it does
require the use of force, then it is a “forcible sex offense.”
They also, however, marshal a few arguments that would
independently arrive at a definition for the phrase.
The government’s primary argument regarding the meaning of
“forcible sex offense” as that term is used in § 2L1.2 is that
the same phrase is used in a different section of the Guidelines
in a context in which (says the government) it is apparent that
forcible compulsion is not required. In particular, the
13 government points out that the commentary to the Guidelines
section applicable to certain “sexual abuse crimes”--crimes that
do not necessarily require threats or forcible compulsion in the
brute sense--states that those crimes “are crimes of violence.”
U.S.S.G. § 2A3.1 cmt. bkgrd. (2003).10 At the time that this
particular Guideline was promulgated, over fifteen years ago,
there was only one definition of “crime of violence” in the
Guidelines, namely the definition provided in § 4B1.2. The 1987
commentary to § 4B1.2, in turn, states that its definition of
“crime of violence” encompasses, among many other things,
“forcible sex offenses.” Therefore, according to the government,
this series of cross-references tells us that a crime does not
require forcible compulsion for it to be a “forcible sex
offense.”
The government’s argument on this score is logically faulty.
From the propositions (1) that certain “sexual abuse crimes” are
“crimes of violence,” and (2) that “forcible sex offenses” are
10 One of the crimes covered by this Guidelines section is 18 U.S.C. § 2242, which can be violated, inter alia, by:
engag[ing] in a sexual act with another person if that other person is--
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act . . . .
18 U.S.C. § 2242(2) (2000).
14 also “crimes of violence,” it does not follow that the specified
“sexual abuse crimes” are “forcible sex offenses.” It is also
notable that the definition of “crime of violence” in the 1987
version of § 4B1.2 relied on 18 U.S.C. § 16, which in turn
defines “crime of violence” as either a crime that has as an
element the use of force or a crime that by its nature poses a
substantial risk that force may be used. Therefore, the “sexual
abuse crimes” discussed in § 2A3.1 could qualify as “crimes of
violence” under 18 U.S.C. § 16 as long as they involved a
substantial risk that force would be used.11 This web of related
provisions therefore does not support the logical inference the
government suggests.
Relatively few appellate cases have discussed the meaning of
“forcible sex offenses” for Guidelines purposes. Almost all of
those that do discuss it, do so in connection with another
11 Indeed, a number of cases have held that various sex offenses satisfy 18 U.S.C. § 16’s definition precisely because they involve a substantial risk that force will be used, even if they do not necessary require the use of force as an element. See, e.g., Velazquez-Overa, 100 F.3d at 420-22. Section 4B1.2 has been amended since 1987, but not in any way that helps the government’s argument. The section now defines “crime of violence” to mean an offense that has the use of force as an element or an offense that poses a serious potential risk of physical injury. See U.S.S.G. § 4B1.2(a) (2003). Courts frequently hold that certain sex offenses are “crimes of violence” under this Guidelines section because the crimes present a risk of injury, even though they do not involve the use of force. See, e.g., United States v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997) (holding that sexual contact with a child did not involve the use of force but did carry a serious potential risk of physical injury).
15 enumerated crime of violence, “sexual abuse of a minor.” The
reason for the connection is that the 2001 version of § 2L1.2’s
“crime of violence” definition links these two offenses, stating
that “crime[s] of violence . . . include[] . . . forcible sex
offenses (including sexual abuse of a minor).” Statutes
involving child sexual abuse typically do not require violence or
threats, merely improper contact. One could therefore argue that
“forcible sex offenses,” which “include” such crimes, likewise do
not require violent force. Equally, one could also reconcile the
two offenses by contending that “sexual abuse of a minor”
qualifies as a crime of violence only when it is “forcible.”
This court, like others, has rejected the latter argument,
reasoning that “[s]exual abuse of a minor--forcible or not--
constitutes a crime of violence.” Rayo-Valdez, 302 F.3d at 316;
see also United States v. Pereira-Salmeron, 337 F.3d 1148, 1152
(9th Cir. 2003) (explaining that sexual abuse of a minor is a
crime of violence regardless of “whether it includes--or even
explicitly excludes--‘force’ as an element”). That is, courts
take the view that sexual abuse of a minor is essentially sui
generis and does not need to be otherwise “forcible.” And
indeed, in the 2003 version of § 2L1.2’s “crime of violence”
definition, the Sentencing Commission has de-coupled the two
offenses, listing each separately. See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) (2003). This change was intended to “make[] clear”
that offenses like sexual abuse of a minor qualify as crimes of
16 violence regardless of whether they involve the use of force.
See U.S.S.G. app. C, amend. 658, at 401-02 (2003). None of this
tells us what a “forcible sex offense” is, however, except
perhaps that “sexual abuse of a minor” might not otherwise
qualify as one.
In the absence of an authoritative definition of “forcible
sex offense,” we believe that the most natural reading of the
phrase suggests a type of crime that is narrower than the range
of conduct prohibited under § 566.040. In particular, it seems
that the adjective “forcible” centrally denotes a species of
force that either approximates the concept of forcible compulsion
or, at least, does not embrace some of the assented-to-but-not-
consented-to conduct at issue here. See BLACK’S LAW DICTIONARY 657
(7th ed. 1999) (defining “forcible” as “[e]ffected by force or
threat of force against opposition or resistance”). We recognize
that in the last few decades, a number of jurisdictions have
modernized and liberalized their rape laws (or the judicial
constructions of them), in a few cases even eliminating the force
requirement. E.g., State ex rel. M.T.S., 609 A.2d 1266, 1276-77
(N.J. 1992). A significant number of states, like Missouri, have
supplemented statutes requiring force, threats, or compulsion
with separate sexual assault statutes that criminalize certain
unconsented-to (or legally unconsented-to) intercourse that does
not involve extrinsic force. See, e.g., FLA. STAT. ANN.
§ 794.011(5) (West 2000 & Supp. 2003); N.Y. PENAL LAW § 130.20
17 (McKinney 2004); WISC. STAT. ANN. § 940.225(3) (West 1996 & Supp.
2003). To our minds, these facts underscore that when one
specifically designates a sex offense as a “forcible” sex
offense, one probably does so in order to distinguish the subject
sex offense as one that does require force or threatened force
extrinsic to penetration.12 Thus, the phrase “forcible sex
offense” used in paragraph (II) of § 2L1.2 cmt. n.1(B)(ii) may
well be a term of art that encompasses a narrower range of
conduct than does paragraph (I)’s general definition referring to
crimes that “ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person of another.”
See supra note 8. In any event, regardless of the precise
boundaries of the phrase, we do not think that all of the conduct
criminalized by § 566.040 can be considered a “forcible sex
12 See, e.g., Michael M. v. Superior Court, 450 U.S. 464, 501 n.8 (1981) (Stevens, J., dissenting) (referring to “forcible rape . . . and nonforcible, but nonetheless coerced, sexual intercourse” (emphasis added)); Soto v. Superior Court, 949 P.2d 539, 543-44 (Ariz. Ct. App. 1997) (holding that a sexual assault is a “forcible sexual assault” when the victim, in addition to not consenting, is coerced by the use or threatened use of force); In re Jessie C., 565 N.Y.S.2d 941, 943 (App. Div. 1991) (stating that a sexual misconduct statute criminalizing sex without valid consent “proscribes both forcible and nonforcible sexual intercourse”); State v. Philbrick, 402 A.2d 59, 63 (Me. 1979) (holding that a crime qualifies as a “forcible sex offense” when it involves “force in fact”). These authorities are relevant--just like dictionaries and other interpretive aids-- because they provide evidence of how speakers typically use the term we are interpreting. We do not claim that “forcible sex offense” is always used in this way, but we believe that the usage reflected in the above citations illustrates the central meaning of the term.
18 offense.” Therefore, we cannot affirm the defendant’s sentence
on this alternative basis.
On remand, the government is free to pursue the eight-level
“aggravated felony” sentence enhancement. We express no opinion
regarding whether that enhancement would be proper.13
B. Constitutionality of 8 U.S.C. § 1326(b)
8 U.S.C. § 1326(a) makes it a crime, punishable by up to two
years’ imprisonment, for an alien to reenter the country without
permission after having previously been removed. Section
1326(b)(1)-(2) provides that aliens whose prior removal followed
a conviction of certain crimes may be imprisoned for
substantially longer terms. In Almendarez-Torres v. United
States, the Supreme Court held that § 1326(b) set forth
sentencing factors rather than separate offenses, and that the
statute was constitutional. See 523 U.S. 224, 235, 247 (1998).
13 As noted earlier, supra note 3, one route to the eight- level “aggravated felony” enhancement would be to show that Sarmiento-Funes had been convicted of “rape” within the contemporary meaning of that term. See 8 U.S.C. § 1101(a)(43)(A) (listing “rape” as an “aggravated felony”); Taylor, 495 U.S. at 598 (holding that the term “burglary” in a sentence enhancement statute should be understood according to its “generic, contemporary meaning”). Indeed, the Ninth Circuit’s Yanez- Saucedo decision, heavily relied upon by the district court and the government, actually involves the meaning of “rape” in the context of § 1101(a)(43)(A). Even as traditionally conceived, the law of rape recognized certain cases in which actual force was not required. Therefore, our holding today regarding the “use of force” language in U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) does not necessarily mean that Sarmiento-Funes did not commit “rape” for purposes of § 1101(a)(43)(A). It is for the district court to resolve in the first instance whether an eight-level enhancement is proper.
19 Raising an objection that was not raised below, Sarmiento-
Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on
its face and as applied, in light of Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), in which the Supreme Court held that facts
that increase a sentence beyond the statutory maximum must as a
general matter be found by a jury. But Apprendi explicitly
refrained from overruling Almendarez-Torres, and this circuit has
consistently rejected Sarmiento-Funes’s position, stating that it
is for the Supreme Court to overrule Almendarez-Torres. See,
e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Sarmiento-Funes concedes that the issue is foreclosed by circuit
precedent, and he presents the issue solely to preserve it for
possible further review.
III. CONCLUSION
For the foregoing reasons, the defendant’s conviction is
AFFIRMED and his sentence is VACATED. The case is REMANDED to
the district court for resentencing.
ENDRECORD
20 EMILIO M. GARZA, Circuit Judge, dissenting:
I conclude that the Missouri sexual assault statute, which
punishes a person for having “sexual intercourse with another
person knowing that he does so without that person’s consent,”
MO. ANN. STAT. § 566.040(1) (West 1999), is a crime of violence
under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), because it has as
an element the use of force. I accept, for purposes of this
opinion, the majority opinion’s rule, based upon the rationale in
United States v. Houston, 364 F.3d 243 (5th Cir. 2004), that
“intercourse does not involve the use of force when it is
accompanied by consent-in-fact.” However, I do not accept the
majority opinion’s holding that the Missouri sexual assault
statute does not require the use of force.
The majority opinion’s holding is based upon its conclusion
that a defendant can be convicted under the Missouri sexual
assault statute in cases where the victim gave consent-in-fact.
This conclusion, based on Houston, necessarily assumes that a
victim under the Missouri sexual assault statute can give
consent-in-fact. Houston turned on the fact that an underage
victim of statutory rape was capable of giving consent-in-fact to
the sexual intercourse. In contrast, as explained below, a
victim under the Missouri sexual assault statute is, by
definition and as a matter of law, unable to give consent-in-fact
to sexual intercourse. See MO. ANN. STAT. § 556.061(5) (West
21 1999). Therefore, sexual assault under the Missouri statute
involves the use of force and is a crime of violence.
Houston holds that a statutory rape victim can give consent-
in-fact to sexual intercourse even though the victim cannot give
legal consent, and, as a result, that statutory rape is not a
crime of violence. See Houston, 364 F.3d at 247.
Houston distinguished between legal consent and consent-in-fact
based upon the assumption that the victim was able to consciously
decide whether or not to engage in sexual intercourse with the
defendant, and that the intercourse would be consensual were it
not for her age. See id. at 247-48. That is, consent-in-fact
only accompanies sexual intercourse in those situations where the
parties were able to decide for themselves whether or not they
wished to participate.
However, under the Missouri sexual assault statute a victim
cannot give consent-in-fact because, by definition, the victim is
unable to decide whether to participate in the sexual
intercourse. In Missouri assent to sexual intercourse is not
legal consent in situations where the defendant knew (or it was
manifest) that the victim “lacked the mental capacity to
authorize” the sexual intercourse or because of certain specified
impairments was “unable to make a reasonable judgment as to the
nature or harmfulness of” the sexual activity. MO. ANN. STAT. §
556.061(5) (a), (b) (West 1999).
22 Under the Missouri statutory definition of consent, even
though the victim may have demonstrated some physical assent to
the sexual intercourse, the victim was “unable to make a
reasonable judgment” or “lacked the mental capacity” to do so and
thus did not make the mental decision to engage in intercourse.14
Id. Furthermore, Missouri’s definition of consent requires that
the defendant either knew of the impairment in the victim’s
cognitive ability or that the condition was “manifest.” Id. If
a person is convicted under Missouri’s sexual assault statute,
the victim was unable to give consent-in-fact and the defendant
knew so.15 Such a conviction involves a use of force.
Therefore, I believe that a Missouri sexual assault conviction is
a crime of violence for purposes of the 16-level enhancement
under § 2L1.2.
I respectfully dissent.
14 For example, in normal circumstances a twenty-five year old woman is able to consent to sex. However, under Missouri law, if she is “unable to make a reasonable judgment” due to intoxication, for example, she is unable to consent-in-fact to sexual intercourse. 15 The Missouri definition of consent also provides that assent does not constitute legal consent when “[i]t is induced by force, duress or deception.” MO. ANN. STAT. § 556.061(5)(c) (West 1999). Even assent procured by means of deception is not consent-in-fact because the defendant deprives the victim of the opportunity to make a mental decision whether or not to participate in the sexual intercourse. The victim is equally unable to give consent-in-fact whether such incapacity is caused by intoxication, mental retardation, or deception.