United States v. Gomez-Gomez

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED July 26, 2007
July 20, 2007
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

05-41461

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE GOMEZ-GOMEZ, also known as Jose L Lopez,

Defendant-Appellant.

On 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

2
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

3
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

1
As noted earlier, the statute also includes a provision for
rape by “menace,” which is defined as “any threat, declaration, or
act which shows an intention to inflict injury upon another.” §
261(c). This definition, unlike that of duress, seems to allow for
conviction only in cases where there is at least an attempted or
threatened use of force against the person of another. Given this,
we do not consider the possibility of rape by menace any further.

4
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

2
In 1993, the California legislature specifically removed
“hardship” from the definition of duress. See People v. Leal, 94
P.3d 1071, 1075 (Cal. 2004) (discussing legislative history). We
are aware of only one published decision, issued by a state
appellate court in California, which identified a threat of
hardship sufficient to constitute duress. See People v.
Bergschneider, 259 Cal.Rptr. 219 (Cal. Ct. App. 1989). In that
case, the defendant told the victim, his minor stepdaughter, that
he would put her “on restriction” if she did not have sex with him.
Id. at 221. “Restriction” was the equivalent of being grounded;
the child would not be allowed to go out or spend the night at
anyone’s house. Id. While the Bergschneider decision is from a
lower state court, and has since been superseded by statute, it was
cited approvingly by the California Supreme Court in Leal. 94 P.3d
at 1077–78. In any case, we cite it only for the real-world
example of a non-forcible way in which a defendant might violate
the 1991 California statute, nothing more. See Gonzales v. Duenas-
Alvarez, __ U.S. __, 127 S.Ct. 815, 822 (2007) (noting that
defendant “must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues”). It should also be noted
that the 1993 amendment to the statute might prove to be extremely
significant for Guidelines purposes. If we were considering a more
recent version of the law, our conclusion today might be very
different. Of course, it is for future panels to evaluate such a
case. Our decision today is strictly limited to the 1991 version
of the statute under which Gomez-Gomez was convicted.

5
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; 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.

3
We note at the outset that California’s decision to call the
crime “forcible” rape is completely irrelevant. Taylor v. United
States, 495 U.S. 575, 592 (1990) (noting that offense “must have
some uniform definition independent of the labels employed by the
various States’ criminal codes”); accord United States v.
Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006)
(“Accordingly, Texas’s designation of Texas Penal Code § 29.02 as
its ‘robbery’ statute does not necessarily mean that it qualifies
as ‘robbery’ under § 2L1.2.” (citing Taylor, supra)); United States
v. Gonzalez-Ramirez, 477 F.3d 310, 314 (5th Cir. 2007) (evaluating
Tennessee kidnapping statute and explaining that “when determining
whether a defendant has been convicted of kidnapping for purposes
of section 2L1.2, state-law labels do not control.”).

6
 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. July 14, 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

4
In fact, our case law seems to lead to the conclusion that
any statute that does not satisfy the elements prong will also not
qualify as a “forcible sex offense.” We have never explicitly
stated as much, but we have described it as “unlikely.” United
States v. Jimenez-Banegas, 2006 WL 3627028, at *2 (5th Cir. Dec.
11, 2006) (unpublished opinion).

7
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

5
This naturally begs the question of how to define “forcible
compulsion.” In Sarmiento-Funes, we cited to BLACK’S LAW DICTIONARY
for the definition of “forcible” as “[e]ffected by force or threat
of force against opposition or resistance.” 374 F.3d at 344
(citing BLACK’S LAW DICTIONARY 657 (7th ed. 1999). More helpful than
this circular definition, however, is the operative definition of
“forcible compulsion” provided at the outset of that opinion:
“Forcible compulsion is defined as ‘[p]hysical force that overcomes
reasonable resistance; or . . . [a] threat, express or implied,
that places a person in reasonable fear of death, serious physical
injury or kidnapping of such person or another person.” Id. at 339
n.2 (quoting from Missouri’s “forcible rape” statute) (emphasis
added).

8
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 v. Meraz-

Enriquez, 442 F.3d 331, 333 (5th Cir. 2006) (ruling that sex with

person who is “incapable of giving consent because of mental

deficiency or disease, . . . or the effect of any alcoholic liquor,

narcotic, drug or other substance . . . .” is not “forcible” for

Guidelines purposes); United States v. Luciano-Rodriguez, 442 F.3d

320, 322 (5th Cir. 2006) (ruling that sex obtained by clergyman or

mental health professional who “exploits the [victim’s] emotional

dependency” is not “forcible” for Guidelines purposes). We

canvassed this case law recently in United States v. Luciano-

9
Rodriguez, and explained that what these statutes have in common is

that they allow for conviction in cases where “there may be assent

in fact but no legally valid consent under the statute.” 442 F.3d

at 322. In such cases, the act may well be against the will of the

victim (as where the victim is coerced to comply by a public

official), but there is no force or threat of force, and thus it is

not a “forcible sex offense” under the Guidelines. Id. The same

is true here: An employer threatens to dismiss an employee unless

the employee has sex with him or her, and the employee agrees to do

so. That sex is “forcible” rape under the California statute

before us, but because it is accomplished without force or the

threat of force, it is not a forcible sex offense in this Circuit.6

6
We must note that a recent decision of this Court has
explicitly altered our approach in this area. See United States v.
Beliew, No. 06-30400, __ F.3d __, 2007 WL 1932812 (5th Cir. July 5,
2007). In considering whether child molestation in Louisiana was
a “forcible sex offense,” Beliew explicitly expanded the meaning of
the term forcible sex offense “through the fiction of ‘constructive
force.’” Id. at *2. The statute in question could be violated by
traditional forcible means, but also by “duress, . . .
psychological intimidation, . . . [or] use of influence by virtue
of a position of control or supervision over the juvenile.” Id. at
*1 (quoting LA. REV. STAT. § 14:81.2(A)). The panel found that the
last of these was the most problematic, as it “isn’t obviously
forcible compulsion,” but nonetheless “can be deemed constructive
force as the interstitial federal common law of 4B1.2.” Id. The
opinion also concludes, albeit somewhat indirectly, that
molestation by “duress” and “psychological intimidation” would
constitute forcible compulsion. Id.
At first glance, Beliew seems to be in tension with our
holding, insofar as it finds that duress is “forcible,” and we do
not. We reiterate, however, that our decision rests largely on the
uniquely broad definition of “duress” in use in California in 1991.
See supra note 2. Moreover, we note that Beliew explicitly states
its own limitations in light of Sarmiento-Funes, so it may be of

10
 3. The Government’s Counterarguments

The government offers three main arguments in support of the

sentencing enhancement, but they are largely inconsistent with our

precedent. First, the government posits that Sarmiento-Funes is

distinguishable because the sentencing guidelines have since

changed. However, we previously rejected that argument with regard

to the 2003 amendments, and there were no changes to the Guidelines

between 2003 and 2004 that would impact this case. See Luciano-

Rodriguez, 442 F.3d 320, 324 (noting that government’s argument was

considered and rejected) (Jolly, J., specially concurring).

Second, the government asserts that the California statute does not

encompass the assented-to-but-not-consented-to conduct at issue in

Sarmiento-Funes, which is simply inaccurate. Third and finally,

the government asks us to follow the alternate reasoning of the

Third Circuit in United States v. Remoi, 404 F.3d 789 (3d Cir.

2005). However, this is impossible because our jurisprudence since

Sarmiento-Funes is inconsistent with the Third Circuit’s holding in

limited import in the instant case. Beliew at *2 (“Expansion of
the term ‘forcible sex offense’ through the fiction of
‘constructive force’ is bounded by Sarmiento-Funes.”).
Nevertheless, despite these plausible distinctions, we recognize
the possible tension and the uncertainty that it may cause going
forward. To the extent that the opinions conflict, however, we
believe it is because Beliew, and not our holding, is at odds with
the prior precedent of this Court. We are powerless to resolve
such a conflict here, as that is the province of the en banc Court.
This case may indeed present a valuable opportunity for the whole
Court to reconsider our precedent in this area, but until then, we
adhere to our conclusion.

11
Remoi. See United States v. Fernandez-Cusco, 447 F.3d 382, 387–88

(noting that in Remoi, “the Third Circuit declined to follow

Sarmiento-Funes, instead taking a broad approach that allows for

crime-of-violence enhancements for forcible sex offenses even in

the absence of physical force”). Clearly our Circuit and the Third

Circuit have chosen different courses in this area, and thus we are

not in a position to adopt the reasoning of Remoi. If the

government wishes to press this particular argument, it will have

to do so when this court is sitting en banc.7

B. GOMEZ-GOMEZ’S REMAINING ARGUMENTS

Gomez-Gomez includes two additional arguments in his brief.

First, he argues that the district court erred in enhancing his

sentence under § 2L1.2(b)(1)(B) based on his conviction for a drug

crime in 1996. However, our review of the record reveals that

neither the pre-sentence report nor the district court considered

Gomez-Gomez’s drug conviction for the purposes of a 16-level

enhancement under § 2L1.2(b)(1)(B). That conviction was mentioned

at sentencing, and Gomez-Gomez objected to its potential use by the

7
The government’s remaining arguments are also unavailing,
either because they rely on case law interpreting the term “force”
in wholly unrelated contexts, or because they rely on the faulty
premise that this Court will affirm any sentence that it considers
“reasonable.” Its final point, that an 8-level enhancement is
appropriate if the 16-level enhancement is not, may well be true,
but this is a matter for the district court to decide in the first
instance. See Sarmiento-Funes, 374 F.3d at 345 n.13 (“It is for
the district court to resolve in the first instance whether an
eight-level enhancement is proper.”).

12
district court, but the court never actually relied upon it.

Accordingly, it is not our place to consider it at this time.

Finally, Gomez-Gomez challenges the constitutionality of 8

U.S.C. § 1326(b), which treats prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury. Gomez-Gomez concedes,

however, that this argument is currently foreclosed by the Supreme

Court’s opinion in Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998). He presents it to us solely to preserve it for

possible Supreme Court review, and we need not consider it further.

III. CONCLUSION

Our precedent compels the result that California’s forcible

rape statute, as it existed in 1991, does not satisfy the element

criterion of § 2L1.2(b)(1)(A)(ii), nor does it qualify as a

forcible sex offense. Accordingly, the sentence is VACATED and the

case is REMANDED for re-sentencing.

13
E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur, but only because we must follow our precedent, which

I hope we will reconsider en banc. In my view, under any common-

sense standard, forcing sex against an unwilling woman would be

forcible sex and therefore a crime of violence against the body of

a woman. When a woman is coerced to have sex against her will

because of threats that could impair or devastate her life, it is

unwilling sex; if it is unwilling sex, it is not unforced sex; and

if it is not unforced sex, it is forcible sex within the meaning of

the Sentencing Guidelines. Yet our precedent, which we must

follow, leads to nonsensical results. Here, for example, no one

contests that Gomez-Gomez was convicted under a California statute

of the crime of forcible rape of a woman. That statute defines

rape as “an act of sexual intercourse ... [w]here it is

accomplished against a person’s will by means of force, violence,

duress, menace, or fear of immediate and unlawful bodily injury on

the person or another.” Cal. Penal Code § 261(a)(2) (1991)

(emphasis added). Nevertheless, we follow United States v.

Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004), to require a holding

that Gomez-Gomez was not convicted of a “forcible sex offense”

because, under the California statute’s definition of “duress,”

rape could be accomplished by a “threat of ... hardship[] or

retribution sufficient to coerce a reasonable person,” Cal. Penal

Code § 261(b). Under Sarmiento-Funes, the majority is forced to

conclude that forcible sex is not forcible sex.
 The unfortunate error of Sarmiento-Funes is that it imposes

the elements test on “forcible sex offense,” a conclusion that

frustrates the intent of the Sentencing Guidelines. The Guidelines

provide two methods for determining whether the crime of conviction

qualifies as a “crime of violence”: either the crime qualifies as

one of the enumerated offenses, such as “forcible sex offense,” or

the crime has as an element the use, attempted use, or threatened

use of physical force. U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt.

n.1(B)(iii). It seems clear that these present two separate

inquiries. See, e.g., Izaguirre-Flores, 405 F.3d at 274

(distinguishing the elements test from enumerated offenses). Yet

Sarmiento-Funes, as the majority makes clear, imposes the elements

test on “forcible sex offense,” requiring rape to include an

element of palpable physical force in order to qualify as a

“forcible sex offense.” Effectively, Sarmiento-Funes iterates the

same analysis for determining whether rape is a “crime of

violence.” Sarmiento-Funes strips “forcible sex offense” of any

significance independent from the elements test, and in doing so,

tends to contradict rules of statutory construction requiring that

we not render statutory language meaningless. See White v. Black,

190 F.3d 366, 368-69 (5th Cir. 1999). The elements test and

“forcible sex offense” surely must have independent meanings, and

that is why the Third Circuit in United States v. Remoi, 404 F.3d

789 (3d Cir. 2005), declined to follow Sarmiento-Funes and instead

emphasized: “The amended definition makes clear that the

15
enumerated 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.” Id. at 796 (quoting U.S.S.G. app. C (vol.

II), amend. 658, at 401-02 (Supp. 2003)). The Third Circuit

correctly concluded: “Thus, one can commit a ‘forcible sexual

offense,’ an enumerated offense under section 2L1.2, without

employing physical force. 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.”

Id.

Consistent with Remoi, the correct result to be reached here

is found in this Court’s recent decision in United States v.

Beliew, No. 06-30400, __ F.3d __, 2007 WL 1932812 (5th Cir. July 5,

2007), now in conflict with Sarmiento-Funes and this case. As the

majority notes, Beliew held, inter alia, that “duress” and

“psychological intimidation” constitute “forcible compulsion,” see

id. at *1; whereas, Sarmiento-Funes and this panel have required

actual physical force.

I would hope that we follow the suggestion of the majority and

permit our en banc court to clear up the confusion that our

precedents have created.

16