U.S. v. Chacon

• Decision Date: 14 July 2008
• Docket Number: No. 07-4439.,07-4439.
• Citation: 533 F.3d 250
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus CHACON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

533 F.3d 250

UNITED STATES of America, Plaintiff-Appellee, v. Jesus CHACON, Defendant-Appellant.

No. 07-4439.

United States Court of Appeals, Fourth Circuit.

Argued: March 18, 2008.

Decided: July 14, 2008.

ARGUED: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Tamara H. Kassabian, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Meghan S. Skelton, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before KING and DUNCAN, Circuit Judges, and Jane R. ROTH, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN and Senior Judge ROTH joined.

OPINION

KING, Circuit Judge:

Defendant Jesus Chacon appeals from his forty-one-month prison sentence, imposed in the Eastern District of Virginia, on convictions for illegal reentry, in violation of 8 U.S.C. § 1326(a), and fraud and misuse of a permanent resident card, in contravention of 18 U.S.C. § 1546. Chacon presents a single challenge to his sentence—that the district court erred in increasing his Sentencing Guidelines base offense level by sixteen levels to account for an earlier conviction for a "crime of violence." See USSG § 2L1.2(b)(1)(A). Our sister circuits have taken differing positions on the legal issue presented: whether a sex offense perpetrated in the absence of consent—and which does not have as an element the use, attempted use, or threatened use of physical force—constitutes a "crime of violence" under the Guidelines. With all respect to the contrary views on the issue, we hold that such an offense is a "forcible sex offense" encompassed within the Guidelines definition of a "crime of violence." Accordingly, we affirm Chacon's sentence.

I.

Chacon, a native and citizen of Honduras, unlawfully entered the United States in 2000. Two years later, on December 18, 2002, he was convicted in Maryland state court of second-degree rape, in violation of article 27, section 463 of the Maryland Code (the "Rape Offense"). The criminal information filed against Chacon (the "Information") alleged that, on August 18, 2002, he "did unlawfully commit a rape upon [the victim] in violation of Art. 27, Sec. 463, of the Annotated Code of Maryland." J.A. 40.¹ The Information did not detail the specific conduct underlying the Rape Offense, nor did it specify which of the three subparts of article 27, section 463 of the Maryland Code (the "Statute") had been contravened. Chacon pleaded guilty to the Rape Offense and was sentenced to nine years in prison. His sentence was suspended, however, and, on January 30, 2003, he was deported to Honduras.²

Chacon unlawfully reentered the United States in approximately November 2006, and soon thereafter sought to use a false permanent resident card, bearing the name "Anibal Caseres-Milton," to gain entry into a building in Crystal City, Virginia. Chacon was apprehended by Immigration and Customs Enforcement ("ICE") agents, who determined his true identity by running his fingerprints through their identification system. The ICE agents also ascertained that Chacon was a convicted felon and had previously been deported. Specifically, they learned that in December 2002 Chacon had been convicted of the Rape Offense, and that he had thereafter been deported to Honduras.

On December 28, 2006, a grand jury in the Eastern District of Virginia returned a two-count indictment charging Chacon with illegal reentry, in violation of 8 U.S.C. § 1326(a), and fraud and misuse of a permanent resident card, in contravention of 18 U.S.C. § 1546(a). On January 10, 2007, Chacon pleaded guilty to both charges, without the benefit of a plea agreement. During the plea hearing, the parties agreed that Chacon had been previously convicted of the Rape Offense.

The Presentence Report ("PSR") computed Chacon's advisory Sentencing Guidelines range, using the 2006 version of the Guidelines, as forty-one to fifty-one months, premised on a total offense level of twenty-one and a criminal history category of II. The PSR arrived at the total offense level by starting with a base offense level of eight and imposing a sixteen-level increase to take account of the Rape Offense, which the PSR classified as a "crime of violence." See USSG § 2L1.2(a), (b)(1)(A). The PSR then subtracted three levels to account for Chacon's acceptance of responsibility by pleading guilty. Id. § 3E1.1.

At sentencing, Chacon objected to the sixteen-level increase recommended by the PSR, contending that the Rape Offense was improperly classified as a "crime of violence." Chacon conceded, however, that the Rape Offense was an "aggravated felony" under section 2L1.2(b)(1)(C), and argued for an increase of only eight levels. The sentencing court overruled Chacon's objection and concluded that the Rape Offense was a "crime of violence" under the Guidelines. In so ruling, the court explained that the Statute defines second-degree rape as vaginal intercourse "by force or threat of force against the will and without the consent of the other person" or "with a person who is ... mentally incapacitated ... and the person performing the act knows or reasonably should know that the other person is ... mentally incapacitated." J.A. 83. Thus, the court, ruling from the bench, concluded that:

Under either scenario, force or the threat of force upon the victim is necessary to complete the act. Although less physical force may be required, mental incapacitation by the victim does not preclude the use of force and, at a minimum, requires compulsion. U.S. v. Remoi, 404 F.3d 789 (3d Cir.2005). "The sentencing commission did not mean to limit forcible sexual offenses to those involving the application of direct physical force, as opposed to some other type of compulsion." That's the Remoi case at page 794. Accordingly, the defendant's conviction for second degree rape constitutes a forcible sexual offense, a crime of violence under Section 2L1.2, and a 16-level enhancement is proper.

J.A. 83-84.

The sentencing court thus calculated Chacon's advisory Sentencing Guidelines range as forty-one to fifty-one months, as recommended in the PSR, and sentenced Chacon to forty-one months in prison on each of his convictions, to run concurrently, followed by a three-year term of supervised release. Chacon filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

The Supreme Court has recently held that "courts of appeals must review all sentences—[including those] inside ... the Guidelines range—under a deferential abuse-of-discretion standard." See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 590, 169 L.Ed.2d 445 (2007). The first step in this review requires us to "ensure that the district court committed no significant procedural error, such as ... improperly calculating ... the Guidelines range." Id. at 597. In assessing whether a sentencing court properly applied the Guidelines, we review the court's "factual findings for clear error and its legal conclusions de novo." United States v. Allen, 446 F.3d 522, 527 (4th Cir.2006). We thus review de novo the sentencing court's imposition of a sixteen-level increase to Chacon's offense level "because it involves [the] interpretation of a statute and ... presents a question of law." United States v. Campbell, 94 F.3d 125, 127 (4th Cir.1996).

III.

By this appeal, Chacon presents our court with an issue of first impression: whether a sex offense perpetrated in the absence of consent—and which does not have as an element the use, attempted use or threatened use of physical force—constitutes a "crime of violence" under the Guidelines. Pursuant to section 2L1.2, a defendant convicted of illegal reentry under 8 U.S.C. § 1326(a) is subject to a sixteen-level increase if he was previously deported after committing a "crime of violence." USSG § 2L1.2(b)(1)(A)(ii). The relevant application note to section 2L1.2 explains that the definition of a "crime of violence" includes the following crimes:

murder, manslaughter, kidnaping 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.

USSG § 2L1.2 cmt. n. 1(B)(iii) (emphasis added). Thus, under the Guidelines, the Rape Offense is a crime of violence if it: (1) constitutes a forcible sex offense; (2) has as an element "the use, attempted use, or threatened use of physical force against" another person; or (3) otherwise falls within the "crime of violence" definition.

In pursuing this appeal, Chacon contends that the Rape Offense is not a "crime of violence," because it is not a "forcible sex offense" and not every violation of the Statute has as an element the use or attempted use of force. The Government asserts, on the other hand, that although a second-degree rape may be committed in Maryland without the use of physical force, a "forcible sex offense" need not, under the Guidelines, have as an element the use, attempted use, or threatened use of physical force. Thus, it contends that the Rape Offense constitutes a "forcible sex offense," and that, as such, the district court was correct to deem it a "crime of violence" under section 2L1.2.

A.

In resolving an issue such as that presented here, we have utilized what is known as the "categorical approach," taking into account only the generic definition of the underlying offense and the fact of conviction. See Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170...