U.S. v. Beltran-Munguia

• Decision Date: 07 June 2007
• Docket Number: No. 06-30118.,06-30118.
• Citation: 489 F.3d 1042
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Candelario Silvestre BELTRAN-MUNGUIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

489 F.3d 1042

UNITED STATES of America, Plaintiff-Appellee, v. Candelario Silvestre BELTRAN-MUNGUIA, Defendant-Appellant.

No. 06-30118.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2006.

Filed June 7, 2007.

Kathleen Moran, Federal Defenders of Eastern Washington & Idaho, Spokane, WA, for the defendant-appellant.

James A. McDevitt, Acting United States Attorney for the Eastern District of Washington, Spokane, WA; Pamela J. Byerly, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Before PAMELA ANN RYMER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Candelario Silvestre Beltran-Munguia pleaded guilty, under 8 U.S.C. § 1326, to unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. This case presents the question whether a prior felony conviction under Oregon Revised Statute (ORS) section 163.425 for sexual abuse in the second degree qualifies as a "crime of violence" for purposes of that guideline. We hold that it does not, both because the state statute does not make force — be it used, attempted, or threatened — an element of the crime and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline. Because the district court concluded otherwise, we vacate Beltran-Munguia's sentence and remand for resentencing.

Beltran-Munguia also contends that his sentence violates his Fifth and Sixth Amendment rights because the district judge found facts about his prior conviction that allowed him to increase his sentence beyond the two-year maximum allowed under 8 U.S.C. § 1326(a). This argument is foreclosed by Supreme Court and Ninth Circuit precedents.

I

The base offense level for a violation of § 1326 is eight. U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a). Where the defendant was previously deported after being convicted of a felony that constitutes a "crime of violence," the offense level goes up by sixteen levels. Id. § 2L1.2(b)(1)(A)(ii).

The presentence report ("PSR") on Beltran-Munguia noted that he had been previously convicted for sexual abuse in the second-degree under ORS section 163.425 and recommended that the district court impose the sixteen-level enhancement on the basis of that conviction. Beltran-Munguia objected to this recommendation, arguing that his prior conviction did not constitute a "crime of violence" as defined for purposes of § 2L1.2(b)(1)(A)(ii), because the Oregon statute criminalizes non-consensual sex and can be committed without the use of force. The district court disagreed, increased Beltran-Munguia's offense level by the recommended sixteen levels, and sentenced him to a 57-month prison term. Beltran-Munguia timely appealed.¹

We review de novo the district court's decision that a defendant's prior conviction qualifies for a sentencing enhancement under U.S.S.G. § 2L1.2(b). See United States v. Gonzalez-Perez, 472 F.3d 1158, 1159 (9th Cir.2007).

II

For the purpose of § 2L1.2(b)(1)(A)(ii), a "crime of violence" is defined as:

any 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. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii) (emphases added). Applying this definition, second-degree sexual abuse in Oregon constitutes a "crime of violence" only if: (1) the crime qualifies as a "forcible sex offense," a term left undefined by the guidelines; or (2) conviction of the crime requires proof of "the use, attempted use, or threatened use of physical force against the person of another."²

A

We begin with the latter possibility.

In Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court instructed that in determining whether a prior conviction meets the requirements of a federal recidivism provision, courts should ordinarily look only to the coverage of the statute of conviction and not to the specific conduct involved in the defendant's conviction. This examination is necessarily limited to "the elements of the crimes of which the defendant was previously convicted." United States v. Selfa, 918 F.2d 749, 751 (9th Cir.1990). To constitute an "element" of a crime, the particular factor in question needs to be "a `constituent part' of the offense[that] must be proved by the prosecution in every case to sustain a conviction under a given statute." United States v. Hasan, 983 F.2d 150, 151 (9th Cir.1992) (per curiam) (internal quotation marks omitted).

A plain reading of ORS section 163.425 makes clear that force — used, attempted, or threatened — is decidedly not an "element" of the crime of second-degree sexual abuse in Oregon. Instead, the victim's lack of consent is the crime's defining characteristic.

Specifically, under the state statute,

[a] person commits the crime of sexual abuse in the second degree when that person subjects another person to sexual intercourse, deviate sexual intercourse, or ... penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim does not consent thereto.

OR. REV. STAT. § 163.425(1) (emphasis added). Thus, the government bears no burden of proving force extrinsic to the act of penetration. By comparison, when prosecuting a defendant for either rape in the first degree or sexual abuse in the first degree under ORS sections 163.375(1)(a) and 163.427(1)(a)(B), respectively, the state bears the burden of proving that the victim was "subjected to forcible compulsion." Id. §§ 163.375(1)(a), 163.427(1)(a)(B) (emphasis added).

That the same "forcible compulsion" requirement does not apply to second-degree sexual abuse is evident not only from the language of ORS section 163.425 but also from its legislative history. That history makes clear that ORS section 163.425 was enacted to fill a specific "omission" in the Oregon criminal code — namely, the failure to make criminal "subject[ing] another to sexual intercourse without the victim's consent — but not by forcible compulsion." See State v. Stamper, 197 Or.App. 413, 106 P.3d 172, 177-78 (discussing a 1983 amendment to Oregon's second degree sexual abuse statute), review denied, 339 Or. 230, 119 P.3d 790 (2005).³

That force, actual or inchoate, is not a required element of ORS section 163.425 is further corroborated by the Oregon appellate decisions that have interpreted the statute. Those decisions make clear that a defendant can be convicted of second-degree sexual abuse where the victim professed consent but was legally incapable of giving it. See id. at 179; State v. Mezick, 109 Or.App. 563, 820 P.2d 849, 850 (1991); State v. Landino, 38 Or.App. 447, 590 P.2d 737, 739 (1979).

ORS section 163.315 delineates four types of legal incapacity that apply to all sexual offenses listed in the Oregon criminal code, including second-degree sexual abuse. See OR. REV. STAT. § 163.315; Landino, 590 P.2d at 739 ("That all four types of legal incapacity set out in ORS 163.315 were intended to apply to all sexual offenses is clear."):⁴ Under ORS section 163.315(1):

A person is considered incapable of consenting to a sexual act if the person is:

(a) Under 18 years of age;

(b) Mentally defective;

(c) Mentally incapacitated; or

(d) Physically helpless.

OR. REV. STAT. § 163.315(1). ORS section 163.305, in turn, defines the terms "mentally defective," "mentally incapacitated," and "physically helpless." Id. § 163.305(3)-(5). To be "mentally defective," for example, "means that a person suffers from a mental disease or defect that renders[her] incapable of appraising the nature of the conduct of the person." Id. § 163.305(3). To be "mentally incapacitated," the victim must have been

rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense because of the influence of a controlled or other intoxicating substance administered to the person without the consent of the person or because of any other act committed upon the person without [her] consent.

Id. § 163.305(4). Finally, to be "physically helpless," the victim must have been "unconscious or for any other reason [was] physically unable to communicate unwillingness to an act." Id. § 163.305(5).

Given the applicability of ORS section 163.315 to ORS section 163.425, a perpetrator could commit second-degree sexual abuse by surreptitiously adding to his victim's drink a drug that affects one's judgment, thereby rendering her "mentally incapacitated." She would then be legally incapable of consent even if she participated fully in the sex act. Similarly, the victim could be "mentally defective," yet fully physically cooperative. Under both those circumstances, a perpetrator would not necessarily have to use, attempt to use, or threaten to use any force above and beyond the force inherent in the act of penetration, see infra p. 1047, to commit second-degree sexual abuse. In other words, under such circumstances, a perpetrator would not have categorically committed a "crime of violence," as the term is defined for purposes of § 2L1.2(b)(1)(A)(ii).

To be sure, a victim of second-degree sexual abuse could, in reality, have been subjected to force during the commission of the crime. In defining the term "without [her] consent," the Oregon state legislature included not only victims "considered to be incapable of consenting as a matter of law," but also victims who were "forcibly compelled to submit" and victims who did "not acquiesce in the actor's conduct." Stamper, 106 P.3d at 176 (citing to the Commentary to Criminal Law Revision Commission...