United States v. Contreras

• Decision Date: 02 January 2014
• Docket Number: No. 13–10928,Non–Argument Calendar.,13–10928,n–Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Raul Dagoberto CONTRERAS, a.k.a. Raul Dagoberto Flores–Contreras, a.k.a. Raul Dagoberto Flores, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

739 F.3d 592

UNITED STATES of America, Plaintiff–Appellant,

v.Raul Dagoberto CONTRERAS, a.k.a. Raul Dagoberto Flores–Contreras, a.k.a. Raul Dagoberto Flores, Defendant–Appellee.

No. 13–10928

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Jan. 2, 2014.

Patricia D. Barksdale, U.S. Attorney's Office, Jacksonville, FL, Samuel D. Armstrong, U.S. Attorney's Office, Ocala, FL, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellant.

Rosemary Cakmis, Rick Carey, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 5:12–cr–00034–WTH–PRL–1.

Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.

CARNES, Chief Judge:

The sole question in this case is whether second-degree sexual battery under Florida law, Fla. Stat. § 794.011(5), is a “crime of violence” under United States Sentencing Guideline § 2L1.2(b)(1)(A). The district court determined that it was not and therefore declined to apply the 16–level enhancement that the guidelines provide for prior convictions of such crimes. The government appeals the district court's refusal to apply the guidelines enhancement, arguing that second-degree sexual battery qualifies as a “crime of violence.”

I.

Raul Dagoberto Contreras, a national of El Salvador, pleaded guilty to illegally reentering the United States after removal for committing an aggravated felony, in violation of 8 U.S.C. § 1326. The probation office generated a presentence investigation report (PSR), which assigned Contreras a base offense level of 8 under U.S.S.G. § 2L1.2(a). Because Contreras had previously been convicted of second-degree sexual battery under Fla. Stat. § 794.011(5), and because the probation office determined that this offense qualified as a “crime of violence,” it recommended a 16–level increase in Contreras' base offense level under U.S.S.G. § 2L1.2(b)(1)(A). After a 3–level reduction for acceptance of responsibility, seeU.S.S.G. § 3E1.1(a)-(b), the probation office calculated a total offense level of 21. That offense level, coupled with Contreras' criminal history category of VI, yielded a guidelines range of 77 to 96 months of imprisonment.

Contreras objected to the 16–level enhancement, arguing that this sexual battery offense is not a “crime of violence” under § 2L1.2(b)(1)(A), but only an “aggravated felony” under subsection (b)(1)(C). Under U.S.S.G. § 2L1.2(b)(1)(C), a conviction for an aggravated felony warrants only an 8–level increase in the defendant's base offense level. The government countered that sexual battery is a crime of violence because it involves sexual contact without consent.

At sentencing, the district court noted that conviction under the Florida statute does not require physical force or violence. Because the court understood the term “crime of violence” to require “something more than a nonconsensual touching,” it determined that the 16–level enhancement recommended by the probation office was unwarranted. The district court further reasoned that, because we have not decided whether Florida's sexual battery offense is a crime of violence, it was “required to resolve this in favor of the defendant.” As a result, the court sustained Contreras' objection to the 16–level enhancement and replaced it with an 8–level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).¹ The district court calculated Contreras' offense level to be 13, which resulted in a guidelines range of 33 to 41 months imprisonment, and sentenced him to 36 months imprisonment.

II.

“We review de novo whether a defendant's prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Diaz–Calderone, 716 F.3d 1345, 1348 (11th Cir.2013) (citation omitted). In making that determination, we generally apply the categorical approach first articulated by the United States Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir.2010). The categorical approach compels us to “look only at the fact of conviction and the statutory definition” to determine whether a conviction under the statute would necessarily constitute a crime of violence. United States v. Romo–Villalobos, 674 F.3d 1246, 1248 (11th Cir.2012). Under certain circumstances, we will also apply a “modified categorical approach,” but neither party has requested the use of such a standard in this case.²Palomino Garcia, 606 F.3d at 1336.

When construing the meaning of sentencing guidelines, we are bound by the guidelines commentary. The commentary is “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.' ” United States v. Cortes–Salazar, 682 F.3d 953, 954 (11th Cir.2012) (quotation marks omitted); see also United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir.2006) ( “Commentary and Application Notes of the Sentencing Guidelines are binding on the courts unless they contradict the plain meaning of the text of the Guidelines.”) (quotation marks omitted).

III.

A.

The guidelines require a sentencing court to enhance the base offense level of a defendant convicted of illegal reentry by 16 if the defendant was previously deported after being convicted of a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary accompanying this guideline defines a “crime of violence” as, among other things:

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 ... or any other offense under federal, state, or local law which 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). The parenthetical statement delineating the scope of “forcible sex offenses” was added by the Sentencing Commission in 2008 (the “2008 Amendment”). That amendment took effect nearly four years before the arrest of Contreras that led to the sentence at issue here.

Under Florida law, sexual battery means “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” Fla. Stat. § 794.011(1)(h). The second-degree felony of which Contreras was convicted is established when a person “commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury.” Id. § 794.011(5). Consent, in turn, is defined as “intelligent, knowing, and voluntary consent” and does not include coerced submission. Id. § 794.011(1)(a).

We have not yet decided whether a conviction under Florida's second-degree sexual battery statute is a “crime of violence” for the purposes of U.S.S.G. § 2L1.2. However, we have held that a conviction for any of the offenses enumerated in U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)—which includes “forcible sex offenses”—qualifies as a “crime of violence,” regardless of whether the use of physical force is an element of the crime. Palomino Garcia, 606 F.3d at 1327. Thus, if we determine that Florida's second-degree felony of sexual battery is a “forcible sex offense,” then it is also a “crime of violence.”

B.

Contreras argues that the sexual battery offense of which he was convicted is not categorically a crime of violence under U.S.S.G. § 2L1.2. The focal point of his argument is that, because § 749.011(5) does not require any sort of force—other than the force necessary to achieve “penetration” or “union”—it is not a forcible sex offense or a crime of violence. SeeFla. Stat. § 794.005 (“[I]t was never intended that the sexual battery offense described in [§ ] 794.011(5) require any force or violence beyond the force and violence that is inherent in the accomplishment of ‘penetration’ or ‘union.’ ”). The very text of the statute makes clear that it deals with nonconsensual sexual contact in which a person “does not use physical force and violence likely to cause serious personal injury.” Id.§ 794.011(5). Contreras points out that nonconsensual “union” of sexual organs is sufficient for a conviction under the statute and that “union” has been defined as mere “contact.” See State v. Pate, 656 So.2d 1323, 1325–27 (Fla. 5th DCA 2010). To say that “illicit non-consensual sexual conduct” is a “forcible sex offense,” Contreras argues, is “to read ‘forcible’ out of ‘forcible sex offenses.’ ” We disagree.

The 2008 Amendment to § 2L1.2 unambiguously defines as a “crime of violence” any forcible sex offense “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,” and it includes “statutory rape.” U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii). That this definition includes sex offenses like second-degree sexual battery under Florida law is evidenced by the Sentencing Commission's explanation for the 2008 Amendment: “The amendment makes clear that forcible sex offenses ... are always classified as ‘crimes of violence,’ regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G.App. C., Amend. 722 (2011) (citing U.S.S.G.App. C., Amend. 658 (2011)). It may seem odd that the term “ forcible sexual offenses” is defined to include crimes that do not have physical force as an element but, as Toni Morrison observed, “Definitions belong to the definers, not the defined.” Toni Morrison, Beloved 190 (1987); see also Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 915 (11th Cir.2013) (“In general, statutory definitions control the...