711 F.3d 541 (5th Cir. 2013), 11-20881, United States v. Rodriguez

Docket Nº:11-20881.
Citation:711 F.3d 541
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jorge Cabecera RODRIGUEZ, also known as Jorge Cebecera, also known as Jorge Paul Cabecera, also known as Jorge P. Cabecera, Defendant-Appellant.
Attorney:James Lee Turner, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee. Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Judge Panel:Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH, DeMOSS, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges. JENNIFER WALKER ELROD and STEPHEN A. HIGGINSON, Circuit Judges, joined by CARL E. STEWART, Chief Judge, and KING, E. GRADY JOLL...
Case Date:March 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 541

711 F.3d 541 (5th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge Cabecera RODRIGUEZ, also known as Jorge Cebecera, also known as Jorge Paul Cabecera, also known as Jorge P. Cabecera, Defendant-Appellant.

No. 11-20881.

United States Court of Appeals, Fifth Circuit.

March 15, 2013

Page 542

[Copyrighted Material Omitted]

Page 543

James Lee Turner, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

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

Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH, DeMOSS, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges.

Page 544

JENNIFER WALKER ELROD and STEPHEN A. HIGGINSON, Circuit Judges, joined by CARL E. STEWART, Chief Judge, and KING, E. GRADY JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, DeMOSS, EDITH BROWN CLEMENT, PRADO, and LESLIE H. SOUTHWICK, Circuit Judges:

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)(1)(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)(1)(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)(1)(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

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level 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)(1)(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)(1)(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 ten 3 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

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that 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. The government responded to this recommendation by reiterating its position that a sentence between thirty-three and forty-one months would be appropriate, contending that a lower sentence would not adequately address Rodriguez's conviction for sexual assault of a child. Following this response by the government, the district court acknowledged that it was bound by precedent, as Rodriguez's counsel conceded, to overrule Rodriguez's objection that his offense did not constitute " statutory rape" or " sexual abuse of a minor" under § 2L1.2.4 After overruling his objections, the district court calculated his Guidelines range of forty-six to fifty-seven months.

The district court, however, explicitly noted that despite its conclusion that the Guidelines range was forty-six to fifty-seven months, a variance was appropriate and requested further argument on the appropriate sentence to impose. Rodriguez's counsel continued by arguing that one year and a day was the appropriate sentence considering his significant cultural assimilation. Rodriguez also made a statement on his own behalf, which acknowledged that he knew it was a crime to return to the United States but explained that he returned " with the best intentions with being with my family and helping them out." The government declined the opportunity to provide further argument.

After hearing all arguments by Rodriguez and the government, the district court explained:

All right. Unfortunately, you're...

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