PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4439
JESUS CHACON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(1:06-cr-545-JCC)
Argued: March 18, 2008
Decided: July 14, 2008
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.
COUNSEL
ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Greenbelt, Maryland, for Appellant. Tamara H.
Kassabian, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Meghan S. Skelton, Assistant Federal Public
2 UNITED STATES v. CHACON
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Alexandria, Virginia, for Appellee.
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 Guide-
lines. 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 vio-
lation of article 27, section 463 of the Maryland Code (the "Rape
Offense"). The criminal information filed against Chacon (the "Infor-
mation") alleged that, on August 18, 2002, he "did unlawfully commit
a rape upon [the victim] in violation of Art. 27, Sec. 463, of the Anno-
tated Code of Maryland." J.A. 40.1 The Information did not detail the
1
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
UNITED STATES v. CHACON 3
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 sen-
tence 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 appre-
hended 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 Cha-
con was a convicted felon and had previously been deported. Specifi-
cally, they learned that in December 2002 Chacon had been convicted
of the Rape Offense, and that he had thereafter been deported to Hon-
duras.
On December 28, 2006, a grand jury in the Eastern District of Vir-
ginia 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 Sen-
tencing 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
2
The Information also charged Chacon with four lesser included
offenses, all of which were dismissed after Chacon’s conviction on the
Rape Offense.
4 UNITED STATES v. CHACON
for Chacon’s acceptance of responsibility by pleading guilty. Id.
§ 3E1.1.
At sentencing, Chacon objected to the sixteen-level increase rec-
ommended 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 con-
cluded 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 per-
forming the act knows or reasonably should know that the other per-
son 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 physi-
cal force may be required, mental incapacitation by the vic-
tim 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 com-
pulsion." That’s the Remoi case at page 794. Accordingly,
the defendant’s conviction for second degree rape consti-
tutes 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.
UNITED STATES v. CHACON 5
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, 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 cal-
culating . . . 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 con-
sent — and which does not have as an element the use, attempted use,
or threatened use of physical force — constitutes a "crime of vio-
lence" 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 appli-
cation note to section 2L1.2 explains that the definition of a "crime
of violence" includes the following crimes:
murder, manslaughter, kidnaping aggravated assault, forc-
ible 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) consti-
6 UNITED STATES v. CHACON
tutes 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 dis-
trict 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 convic-
tion. See Begay v. United States, __ S. Ct. __, 2008 WL 1733270
(April 16, 2008)(concluding, under categorical approach, that "we
consider the offense generically, that is to say, we examine it in terms
of how the law defines the offense and not in terms of how an individ-
ual offender might have committed it on a particular occasion"); Tay-
lor v. United States, 495 U.S. 575, 588-90 (1990) (concluding courts
must look only to the statutory definitions of the prior offenses rather
than particular underlying facts); United States v. Pierce, 278 F.3d
282, 286 (4th Cir. 2002) (same).3 Utilizing the categorical approach
here, the Rape Offense constitutes a "crime of violence" if the full
range of conduct covered by the Statute falls within the scope of the
3
Although irrelevant to our analysis in this case under the categorical
approach, the PSR related the following about the Rape Offense. Chacon
went to a bar with the female victim and others. There, the victim
became intoxicated and ill. Chacon helped the victim home, where he
expressed a desire to have sex with her. When she refused, he removed
her clothes and proceeded anyway. The victim, being incapacitated, was
unable to resist his advances.
UNITED STATES v. CHACON 7
Guidelines provision. See United States v. Diaz-Ibarra, 522 F.3d 343,
352 (4th Cir. 2008) (concluding that categorical approach requires
consideration of "full range of conduct covered by statutory language,
including the most innocent conduct proscribed by the statute").4
B.
Analyzing Chacon’s appellate challenge to his sentence under the
categorical approach, we begin with the language of the Statute itself.
Under the Statute, a second-degree rape offense can be committed in
Maryland in three contexts — that is, if a person engages in vaginal
intercourse with another:
1. By force or threat of force against the will and without
the consent of the other person; or
2. Who is mentally defective, mentally incapacitated, or
physically helpless, and the person performing the act
knows or should reasonably know the other person is
mentally defective, mentally incapacitated, or physi-
cally helpless; or
3. Who is under 14 years of age and the person performing
the act is at least four years older than the victim.
Md. Code Ann. art. 27 § 463 (emphasis added).5 The Information
charging the Rape Offense failed to specify which of the three sub-
parts of the Statute Chacon had violated, and it also did not specify
any details of the offense conduct. Instead, it simply alleged that Cha-
con "did unlawfully commit a rape upon [the victim]" in violation of
the Statute. J.A. 40. In order to determine whether the Rape Offense
constitutes a "crime of violence" under section 2L1.2 of the Guide-
lines, we must assess each of the three subparts of the Statute and
decide whether they constitute "forcible sex offense[s];" whether they
4
The fact of Chacon’s underlying conviction is established by his stip-
ulation to his Rape Offense conviction.
5
The Statute was repealed in 2002, and a copy is included in the Joint
Appendix. See J.A. 44.
8 UNITED STATES v. CHACON
have as an element the use, attempted use, or threatened use of physi-
cal force against the person of another; or whether they might other-
wise constitute a "crime of violence." We begin with the first aspect
of that analysis — whether the subparts of the Statute have as an ele-
ment the use, attempted use, or threatened use of physical force.
1.
As explained above, the Maryland offense of second-degree rape
is committed if a defendant has engaged in sexual intercourse with
another: (1) by force or threat of force; or (2) who is mentally defec-
tive, mentally incapacitated, or physically helpless, and the defendant
knows or should reasonably know of such disability; or (3) with a per-
son who is under 14 years of age and the defendant is at least four
years older than the victim. A violation of the Statute’s first subpart
plainly constitutes a crime of violence since it has as an element the
use or threat of force. Similarly, the third subpart is a crime of vio-
lence because the Guidelines definition categorically includes the
offense of statutory rape. The second subpart of the Statute (the "Sec-
ond Subpart") presents a more difficult question, however, which we
must assess further.
Under the Second Subpart, a defendant has contravened the Statute
by engaging in nonconsensual sex with a person "who is mentally
defective, mentally incapacitated, or physically helpless," and the
defendant "knows or should reasonably know the other person is
mentally defective, mentally incapacitated, or physically helpless."
Md. Code Ann. art. 27 § 463. Common sense dictates, of course, that
any nonconsensual sexual contact is forcible because, if actual physi-
cal force is unnecessary, some degree of compulsion is nevertheless
required to overcome an unwilling victim or take advantage of a help-
less and incapacitated one. Although such compulsion is forcible in
the broader sense, the Second Subpart does not have, as contemplated
by the Guidelines, an element of the "use, attempted use, or threat-
ened use of physical force against the person of another." USSG
§ 2L1.2 cmt. n.1(B)(iii).
As noted above, in the process of resolving this issue, we are obli-
gated to assess the Statute as a whole. See United States v. Diaz-
Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). In so doing, we recognize
UNITED STATES v. CHACON 9
that the Second Subpart can be violated without the use or threat of
physical force. Thus, the prosecution is unable to show that the Rape
Offense is the type of "crime of violence" under the Guidelines that
includes "any . . . offense . . . 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). As a result, we must examine the
Government’s contention that the proper interpretation of the term
"forcible sex offense" renders the Rape Offense a "crime of violence"
within the meaning of section 2L1.2.
2.
a.
The issue of whether a sexual offense perpetrated without consent
constitutes a "forcible sex offense" (and thus a "crime of violence"
under the Guidelines) is one of first impression in our circuit, and the
other circuits to have addressed the question appear to be split on its
resolution. For example, at least two circuits have recognized a dis-
tinction between a sexual offense that results from force and a sexual
offense that is committed in the absence of consent. See United States
v. Gomez-Gomez, 493 F.3d 562, 567 (5th Cir. 2007) (concluding that
an act against the will of the victim is not a forcible sex offense unless
there is also force or threat of force); United States v. Sarmiento-
Funes, 374 F.3d 336, 344-45 (5th Cir. 2004) (ruling that nonconsen-
sual intercourse is not "forcible" for Guidelines purposes); United
States v. Beltran-Munguia, 489 F.3d 1042, 1051 (9th Cir. 2007) (rul-
ing that "forcible sex offense" requires use of force that is "violent in
nature," and concluding that statute criminalizing nonconsensual
intercourse does not categorically constitute forcible sex offense); but
see United States v. Bolanos-Hernandez, 492 F.3d 1140, 1145 (9th
Cir. 2007) (concluding that requiring forcible sex offense "to contain
the same level of force required to qualify a crime under the catch-all
provision would . . . render[ ] the enumeration superfluous").
In contrast, at least two other circuits have addressed this question
and reached the contrary conclusion — that a sex offense perpetrated
without consent constitutes a "forcible sex offense" without requiring
the element of physical force. The position we adopt — that the
Maryland offense of second-degree rape, which criminalizes noncon-
10 UNITED STATES v. CHACON
sensual sex absent the element of physical force, is nevertheless a
"forcible sex offense" — is consistent with this latter group of cir-
cuits. See United States v. Romero-Hernandez, 505 F.3d 1082, 1089
(10th Cir. 2007) (addressing whether nonconsensual sexual contact
constitutes forcible sex offense, and concluding that "[w]hen an
offense involves sexual contact with another person, it is necessarily
forcible when that person does not consent"); United States v. Remoi,
404 F.3d 789, 796 (3d Cir. 2005) (concluding that "one can commit
a ‘forcible sexual offense’ . . . without employing physical force").6
As explained below, we conclude that, under the Statute, the Rape
Offense is a "forcible sex offense," and thus a "crime of violence"
under section 2L1.2.
b.
The term "forcible sex offense" is not defined in the Guidelines and
thus must be accorded its ordinary, contemporary meaning. See Smith
v. United States, 508 U.S. 223, 228 (1993) ("When a word is not
defined by statute, we normally construe it in accord with its ordinary
or natural meaning."); United States v. Lehman, 225 F.3d 426, 428
(4th Cir. 2000) (same). There is no dispute in this case that the Rape
Offense is a sex offense. Thus, we are left only to ascertain the mean-
ing of the term "forcible," which has generally been defined as
"[e]ffected by force or threat of force against opposition or resis-
tance." See Black’s Law Dictionary 674 (8th ed. 2004). Black’s Law
Dictionary further explains the term "forcible" as follows:
[In the law of trespass, the] term "forcible" is used in a wide
and somewhat unnatural sense to include any act of physical
interference with the person or property of another. To lay
one’s finger on another person without lawful justification
6
In the Remoi case, on which the district court relied, the Third Circuit
applied the 2002 version of the Guidelines, which contains an earlier def-
inition of "crime of violence." Remoi, 404 F.3d at 792; see also
Sarmiento-Funes, 374 F.3d at 338-39 (also applying 2002 version of
Guidelines). There are no material distinctions in the definitions for our
purposes, however, as both provide that a crime of violence can be either
a "forcible sex offense" or an offense that has as an element the use or
attempted use of physical force.
UNITED STATES v. CHACON 11
is as much a forcible injury in the eye of the law, and there-
fore a trespass, as to beat him with a stick.
Id. at 674. The term "force" is defined in Black’s Law Dictionary as
"[p]ower, violence, or pressure directed against a person or thing." Id.
at 673.7 "Power," in turn, is defined as "[d]ominance, control, or influ-
ence." Id. at 1207. These definitions are helpful in our analysis, and
support the proposition that a "forcible sex offense" may be accom-
plished in the absence of physical force. This is so because, although
the use of force necessarily involves a degree of compulsion, it can
be effected through "power" or "pressure," which do not necessarily
have physical components. See United States v. Romero-Hernandez,
505 F.3d 1082, 1088 (10th Cir. 2007) (examining dictionary defini-
tions and concluding that "[t]hese definitions omit any reference to
physical power, pressure, dominance, or control").
The conclusion that a "forcible sex offense" can be accomplished
by a degree of compulsion that does not constitute the use of physical
force is also supported by the balance of the Guidelines definition of
a "crime of violence." For example, a sexual offense is a "crime of
violence" if it falls either within the definition of a "forcible sex
offense," or within the catch-all provision of the definition — an
offense 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). Had the Sentencing Commission
intended for all "forcible sex offenses" to involve the use of physical
force, it knew how to make its intention clear — by modifying the
word "forcible" with the word "physical," as it did elsewhere in its
definition of a crime of violence. See Romero-Hernandez, 505 F.3d
at 1088 (concluding that Commission’s omission of "physical" modi-
fier from term "forcible sex offense" shows that "forcible" means
more than physical compulsion). Furthermore, the fact that the Com-
7
The term "forcible" is similarly defined by Webster’s Dictionary as
"effected by force used against opposition or resistance: obtained by
compulsion or violence." Webster’s New International Dictionary 888
(3d ed. 2002). Webster’s defines "force," in turn, as, inter alia, "power,
violence, compulsion, or constraint exerted upon or against a person or
thing," and "strength or power of any degree that is exercised without
justification or contrary to law upon a person or thing." Id. at 887.
12 UNITED STATES v. CHACON
mission used the term "physical force" elsewhere in its "crime of vio-
lence" definition buttresses the proposition that it does not, in this
setting, deem "force" to necessarily include, or require, some physical
compulsion.
Our ruling on the meaning of a "forcible sex offense" is also sup-
ported by the fact that there are other offenses identified in the Guide-
lines definition of a "crime of violence" that do not have physical
force as an element. See USSG § 2L1.2 cmt. n.1(B)(iii) (providing
that offenses such as statutory rape and sexual abuse of minor consti-
tute crimes of violence). For example, the offense of statutory rape
does not have physical force as an element, and such an offense can
be committed by a defendant who simply engages in sexual activity
with a minor. See, e.g., Md. Code. Ann. art. 27 § 463(3) (criminaliz-
ing intercourse with victim under 14 years of age by defendant at least
four years older than victim). Accordingly, it is not unreasonable to
conclude that a second-degree rape — accomplished by taking advan-
tage of someone who is physically helpless or incapacitated — would
also readily constitute a "crime of violence." See Romero-Hernandez,
505 F.3d at 1088 (concluding that "forcible" must mean more than
physical compulsion, because "there are other enumerated offenses
that do not necessarily involve physical compulsion, permitting an
inference that physical compulsion is not necessary for a crime to be
a crime of violence generally"). In sum, although the Second Subpart
of the Statute does not have as an element the use or attempted use
of physical force, it nevertheless constitutes a "forcible sex offense,"
and is thus a "crime of violence" for the purposes of section 2L1.2.
Having assessed the Statute as a whole, as we must, we are satis-
fied that any violation thereof constitutes a "crime of violence" under
the Guidelines. In these circumstances, the sentencing court correctly
applied the sixteen-level increase provided by section 2L1.2 to its cal-
culation of Chacon’s Sentencing Guidelines range.
IV.
Pursuant to the foregoing, we reject Chacon’s contention of error
and affirm the district court.
AFFIRMED