U.S. v. Gomez-Gomez

• Decision Date: 20 July 2007
• Docket Number: No. 05-41461.,05-41461.
• Citation: 493 F.3d 562
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge GOMEZ-GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.3d 562

UNITED STATES of America, Plaintiff-Appellee, v. Jorge GOMEZ-GOMEZ, Defendant-Appellant.

No. 05-41461.

United States Court of Appeals, Fifth Circuit.

July 20, 2007.

Tony Ray Roberts (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Asst. Federal Public Defender (argued), Philip G. Gallagher, Houston, TX, for Defendant-Appellant.

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

Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Jorge Gomez-Gomez was convicted by a jury of illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b). At sentencing, the district judge imposed a sixteen-level "crime of violence" enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Gomez-Gomez's 1991 rape conviction in California. Gomez-Gomez objected to the enhancement, arguing that his conviction for rape was not a "crime of violence" as that term is used in the Sentencing Guidelines. The court overruled the objection and, after further calculations, sentenced Gomez-Gomez to 100 months imprisonment, to be followed by three years of supervised release. Gomez-Gomez appeals the sentence.

I. STANDARD OF REVIEW

A lower court's characterization of a prior conviction as a "crime of violence" is a question of law that we review de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.2005).

II. DISCUSSION

A. THE "CRIME OF VIOLENCE" ENHANCEMENT

There are two ways that the California conviction for forcible rape can qualify as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). It must be a "forcible sex offense," or it must "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another." See U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii). In United States v. Sarmiento-Funes, we suggested that the second inquiry informs the first. 374 F.3d 336, 345 (5th Cir.2004) (noting that "forcible sex offense" may encompass a narrower range of conduct than element criterion). Accordingly, we have usually treated these categories in reverse order and we do so again today.

1. Whether the offense has as an element the use, attempted use, or threatened use of force

"Where some (though not all) methods of violating a statute do not require the use, attempted use, or threatened use of physical force against the victim, `the statute therefore does not have, as an element, the use of physical force against the person of another.'" United States v. Garcia, 470 F.3d 1143, 1147 (5th Cir.2006) (quoting Sarmiento-Funes, 374 F.3d at 341). "If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element — implicit or explicit — of the crime." United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc). "Force" in this context requires more than mere penetration. Sarmiento-Funes, 374 F.3d at 341 ("[I]ntercourse does not involve the use of force when it is accompanied by consent-in-fact.") (relying on and interpreting United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004)); United States v. Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir.2006) (noting that Sarmiento-Funes is controlling where sexual assault can be accompanied by consent-in-fact, even where consent is legal nullity). Accordingly, state statutes will not satisfy the "element" criterion when they allow for convictions for statutory rape or rape by deception. Sarmiento-Funes, 374 F.3d at 341 n. 7. In such cases, while the victim cannot give legal consent, he or she is still capable of consent-in-fact, and thus it cannot be said that the statute includes physical force as an element of the crime.

A close look at the 1991 version of California's "forcible rape" statute makes plain that it was possible for a defendant to be convicted of that crime in some cases in which there was no actual, attempted or threatened use of physical force. See CAL.PENAL CODE § 261 (1990). A subsection of that statute defines "duress" as "a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." Id. at § 261(b) (emphasis added).¹ It adds that "[t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress." Id.

That definition allows for conviction even in cases where a defendant does not attempt or threaten physical force. Threats of "hardship" or "retribution" will suffice, both of which fall short of force or injury. "Hardship" was only included in the California rape statute for three years, from 1990 to 1993, so there is not much California case law on the precise meaning of the term, but what there is confirms that a threat of hardship is quite different than a threat of force or injury.² For example, one could have violated the 1991 statute by threatening to reveal embarrassing secrets about his victim that the victim desperately wished to keep private. Similarly, if an employer threatened to fire a subordinate unless she complied with his demands, that would seem to fit within the statute's definition of duress. However, such actions, while despicable, do not require the use, attempted use, or threatened use of physical force as we have defined that term. Thus, when Gomez-Gomez was convicted of violating § 261(c) in 1991, it is not true that actual, attempted or threatened force was an element of the crime. Therefore, his conviction for forcible rape does not satisfy the element criterion of U.S.S.G. § 2L1.2(b)(1)(A)(ii).

2. Whether the California conviction constitutes a "forcible sex offense" under § 2L1.2(b)(1)(A)(ii)³

The Supreme Court has instructed lower courts to consider the enumerated crimes in the "generic sense in which [they are] now used in the criminal codes of most States." Taylor, 495 U.S. at 598, 110 S.Ct. 2143; see also Santiesteban-Hernandez, 469 F.3d at 378 (noting that where enhancement provision does not define predicate offense, "we must first find its `generic, contemporary meaning'"). It can, of course, prove difficult to ascertain a crime's "generic, contemporary meaning," but in this case we are not writing on a blank slate. There is already substantial case law in this Circuit discussing the term "forcible sex offense," and that precedent compels the conclusion that the California statute does not qualify.

For a crime to qualify as a forcible sex offense, all of the conduct criminalized by the statute must so qualify. United States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir.2006); accord United States v. Palomares-Candela, 104 Fed.Appx. 957, 961 (5th Cir.2004) (unpublished opinion) ("Because there are non-forcible ways to violate the Colorado statute, Candela's prior conviction cannot be said to constitute a forcible sex offense."). "If [the] statute allows for convictions in circumstances that do not constitute forcible sex offenses, the crime of violence enhancement would be improper, regardless of [the defendant's] conduct in committing the offense." Fernandez-Cusco, 447 F.3d at 385 (citing United States v. Alfaro, 408 F.3d 204, 209 (5th Cir.2005)). Hence, the "forcible sex offense" inquiry usually mimics the "elements" inquiry.⁴ The former requires us to consider ways in which the state statute could be violated without "forcible" conduct, while the latter requires us to consider ways in which the statute could be violated without the use, attempted use or threatened use of force. These are essentially the same question, particularly after Sarmiento-Funes, which defined "forcible" as denoting "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." 374 F.3d at 344 (citing BLACK'S LAW DICTIONARY 657 (7th ed.1999)).⁵ We added that, in our view, Congress specifically chose the term "forcible" "in order to distinguish the subject sex offense as one that does require force or threatened force extrinsic to penetration." Id. at 345 (citations omitted) (emphasis added).

If the 1991 California statute in this case "encompasses prohibited behavior that is not within the plain, ordinary meaning" of the term "forcible sex offense" as we defined it in Sarmiento-Funes, we cannot affirm Gomez-Gomez's sentence. See United States v. Izaguirre-Flores, 405 F.3d 270, 277 (5th Cir.2005) (per curiam). Here again the best example comes from the statute's inclusion of duress by threat of hardship. For the very same reasons that force was not an element of the statute, it is clear that the statute could have been violated in a way that does not fall within Sarmiento-Funes's definition of the term "forcible." 374 F.3d at 344. Therefore, because § 261 sweeps in circumstances that do not require "forcible" conduct, Gomez-Gomez's conviction under that section cannot properly be considered a "forcible sex offense" for sentencing purposes.

Our decision today is in keeping with a line of established precedent in this Circuit. See, e.g., Sarmiento-Funes, 374 F.3d 336 (5th Cir.2004) (ruling sex by intoxication or deception not "forcible" for Guidelines purposes, even where offender knows he is acting without legally valid consent of victim); United States v. Palomares-Candela, 104 Fed.Appx. 957, 961 (5th Cir.2004) (per curiam) (unpublished opinion) (ruling that sex between eighteen-year-old and someone four years younger, and sex accomplished by deceiving victim into believing he or she is offender's spouse, are not "forcible" for Guidelines purposes); United States...