FILED
United States Court of Appeals
Tenth Circuit
PU BL ISH
October 16, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-2154
FELIPE ROM ERO-HER NA ND EZ,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR THE NEW M EXICO
(D. Ct. No. CR-04-2490 W PJ)
Submitted on the briefs: *
Jerry A. W alz and Alfred D. Creecy, W alz and Associates, Cedar Crest, New
M exico, for the Defendant-Appellant.
David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United
States Attorney, Office of the United States Attorney for the District of New
M exico, Albuquerque, New M exico, for the Plaintiff-Appellee.
Before TA CH A, Chief Circuit Judge, BR ISC OE, and GORSUCH, Circuit
Judges.
*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
TA CH A, Chief Circuit Judge.
Defendant-Appellant Felipe Romero-Hernandez, a citizen of M exico,
pleaded guilty to illegal reentry following removal for comm ission of an
aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing,
the District Court applied a sixteen-level upward adjustment to M r. Romero-
Hernandez’s sentence under § 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) after concluding that he had previously
been deported following a felony conviction for a crime of violence. On appeal,
M r. Romero-Hernandez argues that the District Court erroneously applied the
adjustment because his prior state conviction is not a crime of violence. W e
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and
AFFIRM .
I. BACKGROUND
On M arch 10, 2004, in Denver County Court, M r. Romero-Hernandez
pleaded guilty to and was convicted of misdemeanor unlaw ful sexual contact in
violation of Colorado law, Colo. Rev. Stat. § 18-3-404(1). M r. Romero-
Hernandez was sentenced to 720 days’ imprisonment with 60 days’ credit for time
served and 660 days suspended and was thereafter removed from the United
States. On August 14, 2004, M r. Romero-Hernandez was apprehended in
southern New M exico and was subsequently charged with illegal reentry
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following removal for commission of an aggravated felony, a violation of 8
U.S.C. § 1326(a) and (b)(2).
M r. Romero-Hernandez pleaded guilty to the federal charge. The
presentence report (“PSR”) calculated his base offense level as eight pursuant to
U.S.S.G. § 2L1.2(a). In addition, the PSR recommended a sixteen-level upward
adjustment under U.S.S.G. § 2L1.2(b)(1)(A )(ii), which provides for an increase to
the base offense level when the defendant has a prior felony conviction for a
crime of violence. According to the PSR, M r. Romero-Hernandez’s conviction is
a felony for federal sentencing purposes (despite its characterization as a
misdemeanor under Colorado law) because it is punishable by a term of
imprisonment exceeding one year, see U.S.S.G. § 2L1.2 cmt. n.2, and is a “crime
of violence” because M r. Romero-Hernandez had non-consensual sexual contact
with a minor and “sexual abuse of a minor” is an enumerated crime of violence
under the Guidelines, see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 1 The PSR also
1
The PSR describes the offense conduct as follow s:
Offense documentation reflects the victim[,] who was [15] years old
at the time, told her father of the defendant’s inappropriate sexual
behavior. . . . The victim advised the defendant went into her room
while she was sleeping and he attempted to grab her breasts as he
reached under her shirt. The victim stated she pushed the
defendant’s hands away while telling him to stop and leave her alone.
The victim related the defendant was telling her to touch him and
rubbed her outer thigh with his hand. The victim reported the
defendant tried to get into bed with the victim and again put his hand
in the victim’s shirt, grabbing her breast while stating “those mine.”
The victim advised she then told the defendant “no they’re mine!”
(continued...)
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recommended a three-level downward adjustment for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1. Applying these adjustments, the PSR reported an
adjusted offense level of 21. W ith a criminal history category of III, the
recommended Guidelines sentence was 46 to 57 months’ imprisonment. See
U.S.S.G. ch. 5 pt. A.
M r. Romero-Hernandez objected to the PSR, arguing that his prior state
conviction was neither a felony nor a crime of violence. The D istrict Court
rejected these objections, concluding that the offense was a felony and that a
“plain reading” of the Colorado statute reveals that a violation of the statute
constitutes a “forcible sex offense,” an offense specifically enumerated as a
“crime of violence” under the Guidelines, see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
The District Court sentenced M r. Romero-Hernandez to 46 months’ imprisonment
to be followed by two years’ supervised release. On appeal, M r.
Romero-Hernandez does not contest that the state conviction is a felony offense
for purposes of the Guidelines. He maintains, however, that the offense of
unlawful sexual contact is not a “crime of violence.”
II. D ISC USSIO N
This Court reviews de novo a district court’s determination that a prior
offense qualifies as a “crime of violence” under U .S.S.G. § 2L1.2(b)(1)(A)(ii).
1
(...continued)
and pushed him away again.
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See United States v. Torres-Ruiz, 387 F.3d 1179, 1180–81 (10th Cir. 2004). “In
interpreting a guideline, we look at the language in the guideline itself, as well as
the interpretative and explanatory commentary to the guideline provided by the
Sentencing Commission.” Id. at 1181 (quotation omitted).
The 2004 Guidelines, under w hich the D istrict Court sentenced M r.
Romero-Hernandez, provide a sixteen-level upw ard adjustment to the base
offense level if the “defendant previously was deported, or unlawfully remained
in the United States, after . . . a conviction for a felony that is . . . a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2
define “crime of violence” 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.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).
W hen a defendant contests whether a prior conviction is a crime of
violence, the sentencing court is generally required to follow the “categorical
approach” as adopted in Taylor v. United States, 495 U.S. 575, 600 (1990).
United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005). The
categorical approach requires the sentencing court to look “only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
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convictions.” Id. (quotation omitted). But when an examination of the statute
reveals that the statute “reaches a broad range of conduct, some of which merits
an enhancement and some of which does not, courts resolve the resulting
ambiguity by consulting reliable judicial records.” United States v. M artinez-
Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005). At this stage, the analysis is
referred to as the “modified categorical approach.” See G onzales v. Duenas-
Alvarez, – U.S. –, 127 S.Ct. 815, 819 (2007); Batrez Gradiz v. Gonzales, 490 F.3d
1206, 1211 (10th Cir. 2007). In applying the modified categorical approach, the
court is limited to examining “the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard v. United States, 544
U.S. 13, 26 (2005). The court may also rely on any admissions the defendant has
made regarding the facts of the prior conviction. Perez-Vargas, 414 F.3d at 1285.
Ultimately, the purpose of this analysis is to avoid “collateral trials.” Shepard,
544 U.S. at 23.
Following the categorical approach here, we look first to the language of
the statute to determine whether M r. Romero-Hernandez was convicted of a crime
of violence. Because we conclude that the particular section of the Colorado
statute at issue prohibits conduct that is categorically a crime of violence under
§ 2L1.2, our analysis ends with the language of the statute and we do not proceed
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to apply the modified categorical approach.
M r. Romero-Hernandez was convicted under Colo. Rev. Stat. § 18-3-
404(1), 2 which provides:
Any actor who knowingly subjects a victim to any sexual contact
commits unlawful sexual contact if:
(a) The actor knows that the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the
nature of the victim’s conduct; or
(c) The victim is physically helpless and the actor knows that the
victim is physically helpless and the victim has not consented; or
(d) The actor has substantially impaired the victim’s power to
appraise or control the victim’s conduct by employing, without the
victim’s consent, any drug, intoxicant, or other means for the purpose
of causing submission; or
[(e) Repealed by Laws 1990, H.B.90-1133, § 25, eff. July 1, 1990.]
(f) The victim is in custody of law or detained in a hospital or other
institution and the actor has supervisory or disciplinary authority
over the victim and uses this position of authority, unless incident to
a lawful search, to coerce the victim to submit; or
(g) The actor engages in treatment or examination of a victim for
other than bona fide medical purposes or in a manner substantially
inconsistent with reasonable medical practices.
The District Court concluded that a conviction under the Colorado statute is
categorically a “forcible sex offense” and thus a crime of violence. The statute
prohibits nonconsensual sexual contact that is not necessarily achieved by
2
W e may look to the criminal complaint at this stage only to narrow the
state offense we examine under the categorical approach. See Taylor, 495 U.S. at
602 (requiring courts, under the categorical approach, “to look only to the fact of
conviction and the statutory definition of the prior offense”); see also United
States v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005) (explaining that “[e]ven under
the categorical approach, we have been willing to consider charging documents in
refining the state offense [that] we examine”).
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physical force. 3 W e must therefore determine whether nonconsensual sexual
contact constitutes a forcible sex offense and therefore a crime of violence. As
we explain below , we conclude that it does.
The G uidelines do not define the phrase “forcible sex offenses.” M r.
Romero-Hernandez argues that to qualify as a forcible sex offense the offense
must involve the use of physical force apart from the force inherent in the sexual
contact itself, while the Government contends that a sex offense can be “forcible”
even though no physical force is involved. According to the Government, a sex
offense is “forcible” if it is nonconsensual, including those situations in which the
victim is legally or medically unable to consent. This is an issue of first
impression for this Circuit, and other circuits appear to be split on the issue.
Compare United States v. Beltran-M unguia, 489 F.3d 1042, 1051 (9th Cir. 2007)
(noting that, “[n]ot surprisingly, given its language, we have interpreted the
phrase ‘forcible sex offenses’ as requiring the use of force,” and force “must
3
A conviction under § 18-3-404(1) does not require the use of physical
force against the victim apart from the force inherent in the unlawful contact
itself. Section 18-3-404 provides two separate penalty provisions. Generally,
unlaw ful sexual contact is a “class 1 misdemeanor,” C olo. Rev. Stat.
§ 18-3-404(2)(a), punishable by up to tw o years’ imprisonment, id. § 18-1.3-
501(1), (3)(a), (3)(b)(II)(a), unless the accused “compels the victim to submit by
use of . . . [physical] force, intimidation, or threat,” in w hich case the crime is a
“class 4 felony,” id. §§ 18-3-404(2)(b), 18-3-402(a)–(c), punishable by two to
eight years’ imprisonment, id. §§ 18-1.3-406, 18-1.3-401(10), 18-1.3-
401(a)(V)(A). Because the penalty depends on whether physical force, threats, or
intimidation were used to accomplish the sexual contact, it is clear that a person
can be convicted under the statute without a showing of physical force, threats, or
intimidation.
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actually be violent in nature”), and United States v. Gomez-Gomez, — F.3d — ,
2007 W L 2070276, at *3 (5th Cir. 2007) (collecting Fifth Circuit cases discussing
§ 2L1.2’s “forcible sex offenses” enhancement and explaining that, for those
cases to which the enhancement did not apply, “the act may well be against the
will of the victim . . . but [if] there is no force or threat of force, . . . it is not a
‘forcible sex offense’ under the Guidelines”), with United States v. Remoi, 404
F.3d 789, 794–95 (3d Cir. 2005) (rejecting an interpretation of § 2L1.2 limiting
“forcible sex offenses” to those offenses involving physical force and concluding
that a sex offense against a victim who is “physically helpless, mentally defective
or mentally incapacitated” is categorically a “forcible sex offense”).
B ecause the G uidelines do not define the term “forcible sex offense,” we
look to the “ordinary, contemporary, and common” meanings of the words used.
Perrin v. United States, 444 U.S. 37, 42 (1979); see also United States v.
Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th Cir. 2007); United States v.
M ungia-Portillo, 484 F.3d 813, 816 (5th Cir. 2007). A “sex offense” is
comm only understood as “[a]n offense involving unlawful sexual conduct.”
Black’s Law Dictionary 1112 (8th ed. 2004) (defining “sexual offense”); see also
Bolanos-Hernandez, 492 F.3d at 1144 (applying dictionary definition of “sexual
offense”). Section 18-3-404(1) proscribes “unlaw ful sexual contact.” 4 The full
4
Colorado law defines “sexual contact” as:
(continued...)
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range of conduct prohibited by § 18-3-404(1) is thus a “sex offense” as that term
is commonly understood.
The more difficult question is whether the full range of conduct prohibited
by § 18-3-404(1) is a forcible sex offense. Black’s generally defines “forcible” as
“[e]ffected by force or threat of force against opposition or resistance.” Black’s
Law Dictionary 674 (8th ed. 2004) (emphasis added). This rather circular
definition could be read to imply that the word “forcible” requires physical
compulsion sufficient to overcome “opposition or resistance.” Such a reading
would be incorrect for two reasons. First, as Black’s explains in the context of a
personal trespass, unlawful contact with another person is a forcible injury: “To
lay one’s finger on another person without lawful justification is as much a
forcible injury in the eye of the law . . . as to beat him with a stick.” Black’s Law
Dictionary 674 (8th ed. 2004). Thus, the inclusion of “opposition or resistance”
should not be read to require active opposition or resistance. A legal right to be
free from interference will suffice to satisfy this definition.
Second, the word “force” does not necessarily connote the use of physical
4
(...continued)
[T]he knowing touching of the victim’s intimate parts by the actor, or
of the actor’s intimate parts by the victim, or the knowing touching
of the clothing covering the immediate area of the victim’s or actor’s
intimate parts if that sexual contact is for the purposes of sexual
arousal, gratification, or abuse.
Colo. Rev. Stat. § 18-3-401(4).
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compulsion. Black’s defines force as “[p]ower, violence, or pressure directed
against a person or thing.” Black’s Law Dictionary 673 (8th ed. 2004). “Power”
is in turn defined as “[d]ominance, control, or influence.” Black’s Law
Dictionary 1207 (8th ed. 2004). These definitions omit any reference to physical
pow er, pressure, dominance, or control. This omission is consistent with how w e
have defined “force” in similar contexts. For example, we have stated that “force
may be inferred by such facts as disparity in size between victim and assailant, or
disparity in coercive power.” United States v. Holly, 488 F.3d 1298, 1302
(quotation and citation omitted) (10th Cir. 2007) (holding that in the context of
aggravated sexual assault, force does not mean “the brute force [commonly]
associated with rape”). These facts do not get at the issue of physical
compulsion, but rather go to the disparity of influence. Thus, where one party has
sufficient control of a situation to overcome the another’s free will, force is
present.
The language of the crime-of-violence definition, § 2L1.2 cmt. n.1(B)(iii),
also indicates that use of physical compulsion is not required for a sex offense to
be “forcible.” The application note specifically uses the word “physical” to
modify force in denoting an offense committed by means of physical compulsion.
See § 2L1.2 cmt. n.1(B)(iii) (defining crime of violence to include any offense
that “has as an element the use, attempted use, or threatened use of physical force
against the person of another” (emphasis added)). The Sentencing Commission’s
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omission of the “physical” modifier from the term “forcible sex offense” indicates
that the word “forcible” must mean more than physical compulsion. This
conclusion is bolstered by the fact that 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. For example, the list of specifically enumerated crimes of violence
include statutory rape and sexual abuse of a minor, neither of which requires
physical compulsion. See Remoi, 404 F.3d at 795 (noting that sexual abuse of a
minor is a crime that involves exploitation, but not necessarily physical
compulsion). Thus, a sex offense may be committed by means that do not involve
“physical” force, yet the offense may still be “forcible.”
Though we have determined that a “forcible” sex offense need not be
accomplished by means of physical compulsion, the question remains whether
nonconsensual sexual contact, such as that prohibited by the Colorado statute, is
necessarily “forcible.” W hen an offense involves sexual contact with another
person, it is necessarily forcible when that person does not consent. See Remoi,
404 F.3d at 796 (“If a ‘forcible’ sexual offense is not associated with physical
compulsion, it must therefore mean a sexual act that is committed against the
victim’s will or consent.”). In the instant case, this conclusion is reinforced by
reference to the specifically enumerated situations that are covered by the statute
in question: victims unable to comprehend the nature of their conduct; physically
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helpless victims; victims whose self-control is impaired through the perpetrator’s
actions; or victims who are in the power of the perpetrator for medical purposes
or pursuant to some legal or disciplinary authority. Colo. Rev. Stat. § 18-3-
404(1)(b)–(d), (f)–(g). These examples are all ones in w hich the victims’
situational lack of power, influence, or control renders them unable to give
consent. Read with these examples in mind, subsection (a), which requires
merely that the perpetrator know that the victim did not consent, id., should be
read to cover an analogous situation: where, due to disparities in power or
influence, the victim’s lack of consent and the perpetrator’s knowledge of this
lack of consent is insufficient to protect the victim. Like the more specific
examples discussed in the later subsections, such situations clearly fall under the
definition of “force” discussed in Holly, 488 F.3d at 1302.
Because, as noted supra, the use of such disparities in situational power or
influence meet the definition of force, the offense in question is categorically a
crime of violence, and the District Court did not err by applying the § 2L1.2
enhancement to M r. Romero-H ernandez’s sentence.
III. C ON CLU SIO N
For the foregoing reason, we AFFIRM the sentence imposed by the
District Court.
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