U.S. v. Sarmiento-Funes

Decision Date21 June 2004
Docket NumberNo. 03-40741.,03-40741.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose SARMIENTO-FUNES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Mitchel Neurock (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Aurora Ruth Bearse (argued), John S. Paul, Houston, TX, for 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 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).

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 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. § 66.010(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 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 "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 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, 157 Tex.Crim. 77, 246 S.W.2d 642, 643 (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 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 continue reading

Request your trial
63 cases
  • Blanco v. Bayview Loan Servicing LLC (In re Blanco)
    • United States
    • U.S. Bankruptcy Court — Southern District of Texas
    • 14 Septiembre 2021
    ... ... at 555, 127 S.Ct. 1955 ). 57 Id ... (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). See also Lormand v. US Unwired, Inc ., 565 F.3d 228, 232 (5th Cir. 2009) (citations omitted) ("A complaint does not need detailed factual allegations but must provide the ... ...
  • United States v. Rodriguez
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 15 Marzo 2013
    ... ... 18 Applying the categorical approach would not yield the result that the Commission has expressly said it intends. What, then, should this tell us about how the Commission intended courts to construe sexual abuse of a minor and statutory rape? I agree with the court's opinion today that we ... ...
  • U.S. v. Beltran-Munguia
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Junio 2007
    ... ... While we have never expressly ruled out that possibility, the majority of other circuits have. See United States v. Sarmiento-Funes, 374 F.3d 336, 340 (5th Cir.2004) (rejecting that "the act of penetration itself is enough to supply the force required under § 2L1.2"); United ... 1154 (noting, after discussing in dicta the results reached under the catchall provision of another guideline, that "[t]he specific issue before us is whether Pereira-Salmeron's conviction ... falls within the category of `sexual abuse of a minor,'" a per se category); Granbois, 376 F.3d at 995 ... ...
  • U.S. v. Ruiz–apolonio
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 14 Septiembre 2011
    ... ... the Commission, in writing its Supplementary Report or in the Guidelines themselves, considered or referred to the particular question here before us, that is whether good time credit is to be based on time served or the sentence imposed. The Guidelines Manual itself, a more authoritative account ... ...
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT