United States v. Alfaro

• Decision Date: 29 August 2016
• Docket Number: No. 15–4102,15–4102
• Citation: 835 F.3d 470
• Parties: United States of America, Plaintiff–Appellee, v. Osmin Alfaro, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

835 F.3d 470

United States of America, Plaintiff–Appellee,

v.Osmin Alfaro, Defendant–Appellant.

No. 15–4102

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2016

Decided: August 29, 2016

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Leslie Caldwell, Assistant Attorney General, Sung–Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before Traxler, Shedd, and Floyd, Circuit Judges.

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 prior felony conviction qualified as a crime of violence and applying a 16-level enhancement, see U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014), the district court sentenced Alfaro to 46 months' imprisonment. Alfaro appeals 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)(1)(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 Alfaro 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(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 area¹ for sexual arousal or gratification, or for the abuse of either party.” Md. Code. Ann., Crim. Law § 3-301(f)(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)(1), 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)(1) are “forcible” offenses for purposes of U.S.S.G. § 2L1.2. He argues, however, that violations of the Maryland statute do not qualify as “sex offenses.” Relying on our decision in Diaz–Ibarra, Alfaro contends that an intent to gratify sexual urges is a necessary element of a “sex offense.” As noted above, an intent to abuse rather than an intent to gratify sexual urges can support a conviction under the state statute, and Alfaro therefore argues that his conviction does not qualify as a forcible sex offense under the categorical approach.

A.

In 2008, the Sentencing Commission resolved a circuit split by amending § 2L1.2 to include the parenthetical statement that the forcible-sex-offense category includes offenses “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.” U.S.S.G. app. C, vol. III, Amendment 722; see United States v. Chacon, 533 F.3d 250, 257 (4th Cir. 2008) (pre-amendment case holding that a sex offense may be “forcible” even without the use of physical force).³ The Guideline thus clarifies the circumstances under which a sex offense may be considered forcible, but it provides no insight on the issue at the heart of this appeal—the kinds of offenses that amount to “sex offenses.”

As previously explained, we answer that question through application of the categorical approach, comparing the statutory definition of the prior conviction to the definition of the generic federal offense—here, “forcible sex offense.” In cases where the enumerated generic offense is a traditional, common-law crime, we define the generic federal offense “based on how the offense is defined ‘in the criminal codes of most states.’ ” United States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). “Forcible sex offense,” however, does not describe a traditional common-law crime, and the phrase thus does not invoke an established, generic structure. Because the phrase is a broad and inclusive phrase that could encompass multiple, divergent offenses in any given state, “it is difficult, if not impossible,” to sift through the multitudes of qualifying state offenses and identify a consensus set of the minimum elements necessary to define the category. United States v. Rodriguez, 711 F.3d 541, 556 (5th Cir. 2013) (en banc) (“As a conceptual matter, it is difficult, if not impossible, to identify an accurate set of discrete elements that define offense categories that do not have a generic structure that is rooted in common law. Moreover, wide variations in prohibited conduct under state codes make it difficult, if not impossible, to determine whether a majority consensus exists with respect to the element components of an offense category or the meaning of those elements.” (citation omitted)).

Although we did not explicitly note the difficulty of distilling the elements of...