U.S. v. Gomez-Gomez

• Decision Date: 21 October 2008
• Docket Number: No. 05-41461.,05-41461.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge GOMEZ-GOMEZ, also known as Jose L. Lopez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

547 F.3d 242

UNITED STATES of America, Plaintiff-Appellee, v. Jorge GOMEZ-GOMEZ, also known as Jose L. Lopez, Defendant-Appellant.

No. 05-41461.

United States Court of Appeals, Fifth Circuit.

October 21, 2008.

Tony Ray Roberts (argued), James Lee Turner and Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Margaret Christina Ling (argued) and Laura Fletcher Leavitt, Asst. Fed. Pub. Defenders, Philip G. Gallagher, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and REAVLEY, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.¹

E. GRADY JOLLY and BENAVIDES, Circuit Judges:

This case presents the question of whether a sex offense committed using constructive force, i.e., nonphysical force, may qualify as a "forcible sex offense" and thereby a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A). Jorge Gomez-Gomez appeals the district court's holding that his prior conviction under California's rape statute was a conviction for a crime of violence under § 2L1.2(b)(1)(A) because it was a forcible sex offense. A unanimous panel of this Court vacated Gomez-Gomez's sentence and remanded the case for resentencing, finding that Gomez-Gomez's prior rape conviction did not constitute a forcible sex offense because the use of physical force was not a required element under California's rape statute. 493 F.3d 562 (5th Cir.2007). We granted the Government's petition for rehearing en banc, 517 F.3d 730 (5th Cir.2008), and now AFFIRM Gomez-Gomez's sentence.

I.

In 1991 Gomez-Gomez pled guilty to violating California's rape statute, which prohibits sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another." Cal.Penal Code § 261(a)(2) (1991). At the time of his plea, duress encompassed "a direct or implied threat of ... hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities."² Cal.Penal Code § 261(b) (1991).

In 2005 Gomez-Gomez was arrested for illegally reentering the United States. A jury convicted him, and the judge sentenced him to 100 months in prison, finding that Gomez-Gomez's 1991 conviction qualified as a prior conviction for a crime of violence under § 2L1.2 of the advisory Federal Sentencing Guidelines. Gomez-Gomez asks this Court to find that his 1991 offense was not a crime of violence. Although, post-Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In that respect, for a guidelines issue preserved in district court, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).

II.

U.S.S.G. § 2L1.2(b)(1)(A) provides a sixteen-level enhancement under the Sentencing Guidelines for defendants convicted of unlawfully reentering the United States who have a prior conviction for a crime of violence. A crime of violence is defined as:

[A]ny of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any 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. 1(B)(iii). Under this definition, a prior offense is a crime of violence if it: (1) has physical force as an element, or (2) qualifies as one of the enumerated offenses. Because Gomez-Gomez and the Government agree that a conviction under the California statute does not require the use of physical force as an element, we consider only whether the offense of conviction qualifies as one of the enumerated offenses. The relevant enumerated offense in this case is "forcible sex offenses."

To determine whether Gomez-Gomez's prior criminal offense qualifies as a forcible sex offense, we do not look to his actual conduct. Instead, we consider the offense categorically by looking "only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If the full range of the conduct prohibited by the California rape statute falls under the definition of a forcible sex offense, then we must hold that Gomez-Gomez's prior offense, rape as set forth in the California statute, was a crime of violence. If, on the other hand, the California statute prohibits some conduct that is not a forcible sex offense, then Gomez-Gomez's offense was not a crime of violence. Based on the language of the statute, the Government concedes, for purposes of this appeal, that Gomez-Gomez could have been convicted for rape accomplished by means of duress, and that Gomez-Gomez's rape conviction cannot constitute a forcible sex offense if rape by means of duress does not qualify as a forcible sex offense.³

III.

We first addressed the meaning of the term forcible sex offense under § 2L1.2 in United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir.2004). In Sarmiento-Funes, the defendant pleaded guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326—the same offense that Gomez-Gomez was convicted of in this case. Id. at 338. At sentencing, the district court applied a crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because the defendant was previously convicted of sexual assault in Missouri. Id. In Missouri, sexual assault is defined as "sexual intercourse with another person knowing that he does so without that person's consent." Mo. Ann. Stat. § 566.040(1) (2008). Under Missouri law, consent is absent, even if the victim "assented" or submitted to the act when:

(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[.]

Mo. Ann. Stat. § 556.061(5) (2008).

On appeal, we vacated the defendant's sentence and remanded for resentencing. Sarmiento-Funes, 374 F.3d at 337. First, we found that the defendant's Missouri sexual assault conviction did "not have, as an element, the use of physical force against the person of another." Id. at 341. This court drew a distinction between offenses where the victim consents as a matter of fact, or "assents," but the law disregards or countermands the victim's decision, such as where the victim is underage or the assent is the result of deception or intoxication, and offenses where the victim does not consent as a matter of fact. Id. at 341 & n. 7. We found that "intercourse does not involve the use of force when it is accompanied by consent-in-fact." Id. at 341.

We next considered whether the defendant's prior conviction constituted a crime of violence because it qualified as a forcible sex offense. We observed that "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," and 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." Id. at 344. We held that "regardless of the precise boundaries of the phrase," at least some of the conduct criminalized by the Missouri sexual assault statute did not constitute "forcible sex offenses."⁴ Id.

The en banc court finds that Sarmiento-Funes stands for the limited proposition that a sex offense does not involve the use of force when the victim consents in fact. Sarmiento-Funes did not address the question presented in this case: whether rape accomplished by means of nonphysical duress, in which the victim submits to sex due to constructive force but not physical force or the threat of physical force, is a forcible sex offense and thus a crime of violence under § 2L1.2. Sarmiento-Funes does not, as the panel opinion in this case mistakenly concluded, define forcible sex offense as requiring physical force. Our opinion in Sarmiento-Funes observed only that the adjective "forcible" likely refers to "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" in that case and that a forcible sex offense was probably one that requires "force or threatened force extrinsic to penetration." Id. at 344. We did not state that physical force is required or address whether words or actions of consent constitute consent in fact when they are procured through the application of constructive force. Id.

Our cases interpreting Sarmiento-Funes have provided seemingly inconsistent guidance as to whether the term forcible sex offenses includes sex offenses involving constructive force. In United States v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir.2006), w...