IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 05-41461 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE GOMEZ-GOMEZ, also known as Jose L Lopez,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
Before JONES, Chief Judge, REAVLEY, JOLLY, DAVIS, SMITH, WIENER,
BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT,
PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.1
E. GRADY JOLLY and FORTUNATO P. BENAVIDES, Circuit Judges:
This case presents the question of whether a sex offense committed using
constructive force, i.e., nonphysical force, may qualify as a “forcible sex offense”
and thereby a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). Jorge Gomez-
Gomez appeals the district court’s holding that his prior conviction under
California’s rape statute was a conviction for a crime of violence under §
2L1.2(b)(1)(A) because it was a forcible sex offense. A unanimous panel of this
Court vacated Gomez-Gomez’s sentence and remanded the case for resentencing,
1
Judge KING did not participate in this decision.
No. 05-41461
finding that Gomez-Gomez’s prior rape conviction did not constitute a forcible
sex offense because the use of physical force was not a required element under
California’s rape statute. 493 F.3d 562 (5th Cir. 2007). We granted the
Government’s petition for rehearing en banc, 517 F.3d 730 (5th Cir. 2008), and
now AFFIRM Gomez-Gomez’s sentence.
I.
In 1991 Gomez-Gomez pled guilty to violating California’s rape statute,
which prohibits sexual intercourse “accomplished against a person’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person of another.” Cal. Penal Code § 261(a)(2) (1991). At
the time of his plea, duress encompassed “a direct or implied threat of . . .
hardship, or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities.”2 Cal. Penal Code § 261(b) (1991).
In 2005 Gomez-Gomez was arrested for illegally reentering the United
States. A jury convicted him, and the judge sentenced him to 100 months in
prison, finding that Gomez-Gomez’s 1991 conviction qualified as a prior
conviction for a crime of violence under § 2L1.2 of the advisory Federal
Sentencing Guidelines. Gomez-Gomez asks this Court to find that his 1991
offense was not a crime of violence. Although, post-Booker, the Sentencing
Guidelines are advisory only, and an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 128 S.Ct. 586, 596 (2007). In that
respect, for a guidelines issue preserved in district court, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
2
In 1993, the California legislature amended Cal. Penal Code § 261(b) by removing the
term “hardship” from the definition of duress. See People v. Leal, 94 P.3d 1071, 1075 (Cal.
2004).
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No. 05-41461
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
II.
U.S.S.G. § 2L1.2(b)(1)(A) provides a sixteen-level enhancement under the
Sentencing Guidelines for defendants convicted of unlawfully reentering the
United States who have a prior conviction for a crime of violence. A crime of
violence is defined as:
[A]ny 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. 1(B)(iii). Under this definition, a prior offense is a crime
of violence if it: (1) has physical force as an element, or (2) qualifies as one of the
enumerated offenses. Because Gomez-Gomez and the Government agree that
a conviction under the California statute does not require the use of physical
force as an element, we consider only whether the offense of conviction qualifies
as one of the enumerated offenses. The relevant enumerated offense in this case
is “forcible sex offenses.”
To determine whether Gomez-Gomez’s prior criminal offense qualifies as
a forcible sex offense, we do not look to his actual conduct. Instead, we consider
the offense categorically by looking “only to the fact of conviction and the
statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575,
602 (1990). If the full range of the conduct prohibited by the California rape
statute falls under the definition of a forcible sex offense, then we must hold that
Gomez-Gomez’s prior offense, rape as set forth in the California statute, was a
crime of violence. If, on the other hand, the California statute prohibits some
conduct that is not a forcible sex offense, then Gomez-Gomez’s offense was not
a crime of violence. Based on the language of the statute, the Government
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concedes, for purposes of this appeal, that Gomez-Gomez could have been
convicted for rape accomplished by means of duress, and that Gomez-Gomez’s
rape conviction cannot constitute a forcible sex offense if rape by means of duress
does not qualify as a forcible sex offense.3
III.
We first addressed the meaning of the term forcible sex offense under §
2L1.2 in United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004). In
Sarmiento-Funes, the defendant pleaded guilty to illegally reentering the United
States after deportation in violation of 8 U.S.C. § 1326—the same offense that
Gomez-Gomez was convicted of in this case. Id. at 338. At sentencing, the
district court applied a crime-of-violence enhancement under U.S.S.G. §
2L1.2(b)(1)(A) because the defendant was previously convicted of sexual assault
in Missouri. Id. In Missouri, sexual assault is defined as “sexual intercourse
with another person knowing that he does so without that person’s consent.”
Mo. Ann. Stat. § 566.040(1) (2008). Under Missouri law, consent is absent, even
if the victim “assented” or submitted to the act when:
(a) It is given by a person who lacks the mental capacity to
authorize the conduct charged to constitute the offense and such
mental incapacity is manifest or known to the actor; or
(b) It is given by a person who by reason of youth, mental disease or
defect, or intoxication, is manifestly unable or known by the actor
3
Despite the general rule that a prior crime is defined categorically by the statute of
conviction, a crime’s definition may be narrowed based, e.g., on the specific facts contained in
the charging papers. See Shepard v. United States, 544 U.S. 13, 30 (2005); United States v.
Carbajal-Diaz, 508 F.3d 804, 807 (5th Cir. 2007). In determining whether a prior crime
amounts to one of the enumerated offenses under § 2L1.2, we have held that a court “can look
to those facts contained in the charging papers and that are necessary to the verdict or the
plea.” Carbajal-Diaz, 508 F.3d at 809. While the felony complaint primarily tracks the
language of Cal. Penal Code § 261(a)(2), it lists the means of committing the offense
conjunctively instead of disjunctively. The Government concedes that it waived the argument
that this requires construing Gomez-Gomez’s guilty plea as an admission to having committed
rape through all of the means listed in the felony complaint, including “force, violence, duress,
menace, and fear of immediate and unlawful bodily injury,” by failing to raise this argument
in its principal brief on appeal.
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No. 05-41461
to be unable to make a reasonable judgment as to the nature or
harmfulness of the conduct charged to constitute the offense; or
(c) It is induced by force, duress, or deception[.]
Mo. Ann. Stat. § 556.061(5) (2008).
On appeal, we vacated the defendant’s sentence and remanded for
resentencing. Sarmiento-Funes, 374 F.3d at 337. First, we found that the
defendant’s Missouri sexual assault conviction did “not have, as an element, the
use of physical force against the person of another.” Id. at 341. This court drew
a distinction between offenses where the victim consents as a matter of fact, or
“assents,” but the law disregards or countermands the victim’s decision, such as
where the victim is underage or the assent is the result of deception or
intoxication, and offenses where the victim does not consent as a matter of fact.
Id. at 341 & n.7. We found that “intercourse does not involve the use of force
when it is accompanied by consent-in-fact.” Id. at 341.
We next considered whether the defendant’s prior conviction constituted
a crime of violence because it qualified as a forcible sex offense. We observed
that “it seems that the adjective ‘forcible’ centrally denotes 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,”
and that “when one specifically designates a sex offense as a ‘forcible’ sex offense,
one probably does so in order to distinguish the subject sex offense as one that
does require force or threatened force extrinsic to penetration.” Id. at 344. We
held that “regardless of the precise boundaries of the phrase,” at least some of
the conduct criminalized by the Missouri sexual assault statute did not
constitute “forcible sex offenses.”4 Id.
4
After the defendant in Sarmiento-Funes was sentenced, the Commission amended §
2L1.2 to include “statutory rape” as an enumerated crime of violence. Before November 2003,
U.S.S.G. § 2L1.2 provided that the term “crime of violence”:
(I) means an offense under federal, state, or local law that has as an element the
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No. 05-41461
The en banc court finds that Sarmiento-Funes stands for the limited
proposition that a sex offense does not involve the use of force when the victim
consents in fact. Sarmiento-Funes did not address the question presented in this
case: whether rape accomplished by means of nonphysical duress, in which the
victim submits to sex due to constructive force but not physical force or the
threat of physical force, is a forcible sex offense and thus a crime of violence
under § 2L1.2. Sarmiento-Funes does not, as the panel opinion in this case
mistakenly concluded, define forcible sex offense as requiring physical force.
Our opinion in Sarmiento-Funes observed only that the adjective “forcible” likely
refers to “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” in that case and that a forcible sex offense was
probably one that requires “force or threatened force extrinsic to penetration.”
Id. at 344. We did not state that physical force is required or address whether
words or actions of consent constitute consent in fact when they are procured
through the application of constructive force. Id.
use, attempted use, or threatened use of physical force against the person of
another; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2 cmt. 1(B)(ii) (2002) (emphasis added). Section 2L1.2 was amended in
November 2003, and the term “crime of violence” was redefined as:
[A]ny 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. 1(B)(iii) (emphasis added). The fact that this amendment lists statutory
rape as a separate and distinct crime of violence in § 2L1.2 makes unnecessary any further
inquiry into whether statutory rape is a forcible sex offense under § 2L1.2.
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No. 05-41461
Our cases interpreting Sarmiento-Funes have provided seemingly
inconsistent guidance as to whether the term forcible sex offenses includes sex
offenses involving constructive force. In United States v. Luciano-Rodriguez, 442
F.3d 320 (5th Cir. 2006), we found that sex offenses involving exploitation of the
emotional dependency engendered by a clergymen’s or mental health service
provider’s position, coercion by a public servant, or a victim who is incapable of
appraising the nature of the act or of resisting it as a result of mental disease or
defect, were not necessarily “forcible” because “[i]n each of these situations, there
may be assent in fact but no legally valid consent under the statute.” Id. at 322.
We observed that “[n]othing in this court’s precedent . . . equates emotional
manipulation by a clergyman or a mental health professional with the use of
force.” Id. at 323 n.15.
In United States v. Beliew, 492 F.3d 314, 316 (5th Cir. 2007), we addressed
the meaning of the term forcible sex offenses for the purposes of U.S.S.G. §
4B1.2. We observed that the “[e]xpansion of the term ‘forcible sex offense’
through the fiction of ‘constructive force’ is bounded by Sarmiento-Funes,” but
held that an adult’s “use of influence by virtue of a position of control or
supervision” over a juvenile is “a form of psychological intimidation that carries
an implicit threat of force, a species of force extrinsic to penetration,
distinguishable from Sarmiento-Funes.” Id. at 316–17. This holding appears to
be in tension with our finding in Luciano-Rodriguez that duress or the
exploitation of a position of influence in other contexts in which the victim is in
a position of vulnerability does not involve the use of force because a victim may
still “consent in fact” in those situations.
We now seek to clarify whether the term forcible sex offenses includes sex
offenses involving constructive force. Because the Sentencing Guidelines do not
define the term “forcible sex offense,” “we look first to its plain, ordinary
meaning” by consulting the dictionary. See United States v. Izaguirre-Flores,
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No. 05-41461
405 F.3d 270, 275 (5th Cir. 2005) (per curiam). A sex offense or “sexual offense”
is “[a]n offense involving unlawful sexual conduct.” Black’s Law Dictionary 1112
(8th ed. 2004). “Forcible” is defined as “[e]ffected by force or threat of force
against opposition or resistance,” id. at 674, and force is defined as “[p]ower,
violence, or pressure directed against a person or thing,” id. at 673. Therefore,
a sex offense is forcible if, at the least, it is committed using force or forcible
compulsion against opposition or resistance.
Gomez-Gomez argues that the term forcible sex offenses encompasses only
“sex offenses involving at least some quantum of physical force or threat of
violence,” but the definitions make clear that physical force is not required. The
word “force” is defined broadly as “[p]ower, violence, or pressure directed against
a person or thing,” Black’s Law Dictionary 673 (8th ed. 2004) (emphasis added),
and “pressure” is defined as “the burden of physical or mental distress.”
Webster’s Third New International Dictionary 1795 (1981). Because pressure,
which may be both mental and physical in nature, constitutes force, the term
“forcible sex offense” encompasses sex offenses committed using constructive
force. See also Beliew, 492 F.3d at 316 (finding that psychological intimidation
is forcible). This interpretation is supported by the fact that the Sentencing
Commission explicitly modified the term “force” in the elements test for a crime
of violence with the term “physical,” but eschewed such a modifier for the
enumerated crime of violence “forcible sex offenses.” See U.S.S.G. § 2L1.2 cmt.
1(B)(iii).
Gomez-Gomez also argues that interpreting the term forcible sex offenses
to encompass sex offenses that do not involve the use of physical force or the
threat of physical force would render superfluous the eight-level enhancement
for aggravated felonies, including rape, under U.S.S.G. § 2L1.2(b)(1)(C).5 Gomez-
5
U.S.S.G. § 2L1.2(b)(1)(C) provides an eight-level enhancement for defendants
previously convicted of an “aggravated felony,” which is defined as “ha[ving] the meaning given
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No. 05-41461
Gomez asserts that listing rape as an aggravated felony is redundant if rape
always qualifies for the sixteen-level crime-of-violence enhancement as a forcible
sex offense, and therefore “forcible sex offense” must embrace only the most
egregious forms of rape, which he contends to be rape “involving at least some
quantum of physical force or threat of violence.” However, many offenses are
eligible for both the eight-level and the sixteen-level enhancements under
U.S.S.G. § 2L1.2. See United States v. Treto-Martinez, 421 F.3d 1156, 1158 (10th
Cir. 2005) (recognizing that defendant’s prior conviction qualified for the eight-
level and sixteen-level enhancements under U.S.S.G. § 2L1.2). For example,
murder, like rape, is an aggravated felony that qualifies for an eight-level
enhancement. See U.S.S.G. § 2L1.2 cmt. 3(A); 8 U.S.C. § 1101(a)(43). Murder
also always qualifies for the sixteen-level crime-of-violence enhancement because
murder is an enumerated offense. U.S.S.G. § 2L1.2 cmt. 1(B)(iii). The
Sentencing Commission is aware of the redundancies contained in the
guidelines, and has instructed courts to “[a]pply the [g]reatest” enhancement
applicable. U.S.S.G. § 2L1.2(b)(1).
In light of the foregoing, we find that sex offenses committed using
constructive force that would cause a reasonable person to succumb qualify as
“forcible sex offenses,” and therefore crimes of violence, under § 2L1.2.6 Such
offenses, by definition, involve victims who have not consented in fact, even if the
victim has nominally consented. As we use the phrase, “consent in fact” means
that term in 8 U.S.C. 1101(a)(43).” U.S.S.G. § 2L1.2 cmt. 3(A). 8 U.S.C. § 1101(a)(43) in turn
lists a number of offenses that qualify as an aggravated felony, including “murder, rape, sexual
abuse of a minor” and “a crime of violence.” 8 U.S.C. § 1101(a)(43)(A) and (F).
6
We decline to address the implications of our interpretation in this case of the term
“forcible sex offenses” under § 2L1.2 for the meaning of same phrase in § 4B1.2. Although §
4B1.2 and § 2L1.2 both list “forcible sex offenses” as crimes of violence, § 4B1.2 does not
contain “statutory rape” and “sexual abuse of a minor” as separate and distinct crimes of
violence. We leave the task of further specifying the meaning of “forcible sex offenses” in either
section for cases that squarely present those issues.
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No. 05-41461
consent actually and freely given. A mere word or action indicating consent that
is given under duress, whether through physical or nonphysical means, and
against the free will of the victim, indicates nothing about whether the victim in
fact wishes to engage in sex; such nominal consent is solely a creature of the
duress, and the perpetrator who has applied physical or constructive force to
make the victim submit cannot reasonably interpret such a word or action as
indicating that the victim actually wishes to manifest consent. See Black’s Law
Dictionary 542 (8th ed. 2004) (defining duress as “a threat of harm made to
compel a person to do something against his or her will or judgment”). Such
“consent” is not simply null as a matter of law, as with a word or action
indicating consent freely given by an underage victim in a statutory rape case,
but null as a matter of fact.7
IV.
Comparing the definitions of Gomez-Gomez’s prior conviction and the term
“forcible sex offenses,” we find that the district court properly applied the crime-
of-violence enhancement in this case. As discussed above, we hold that sex
offenses committed using constructive force that would cause a reasonable
person to succumb qualify as crimes of violence under § 2L1.2. The California
statute underlying Gomez-Gomez’s prior conviction criminalizes intercourse
“accomplished against a person’s will by means of force, violence, duress,
menace, or fear of immediate or unlawful bodily injury on the person of another.”
Cal. Penal Code § 261(a)(2) (1991). Duress, at the time of Gomez-Gomez’s plea,
encompassed “a direct or implied threat of . . . hardship, or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities.” Cal. Penal Code §
7
The Commission’s proposed amendment to § 2L1.2 attaches the following
parenthetical to the phrase “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).” U.S.S.G. § 2L1.2 cmt. 1(b)(iii) (eff. Nov. 1, 2008). We need not
address the proposed amended definition here because the definition in effect at the time of
sentencing governs. See 18 U.S.C. §§ 3553(a)(4)(A)(ii), 3742(g)(1).
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No. 05-41461
261(b) (1991). The full range of conduct prohibited by the California rape statute
falls under the definition of “forcible sex offenses.” For this reason, the judgment
of the district court is
AFFIRMED.
11