United States v. Osmin Alfaro

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4102
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSMIN ALFARO,
Defendant-Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-
cr-00221-PWG-1)
Argued: March 24, 2016 Decided: August 29, 2016
Before Traxler, Shedd, and Floyd, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion
in which Judge Shedd and Judge Floyd joined.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Sujit
Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
TRAXLER, Circuit Judge:
Osmin Alfaro, a native of El Salvador, entered the United
States illegally when he was a teenager. In 2003, he was
convicted in Maryland of third-degree sexual offense for
sexually assaulting his then-estranged wife. Alfaro was
deported in 2008, after failing to register as a sex offender in
Maryland, and he illegally re-entered the country in 2010.
Alfaro came to the attention of federal authorities in 2014, and
he was charged with, and ultimately pleaded guilty to, one count
of failing to register as a sex offender, see 18 U.S.C. § 2250,
and one count of illegal re-entry, see 8 U.S.C. § 1326. After
concluding that Alfaro’s prior felony conviction qualified as a
crime of violence and applying a 16-level enhancement, see
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014), the district court
sentenced Alfaro to 46 months’ imprisonment. Alfaro appeals his
sentence, arguing that the district court erred in concluding
that his previous conviction amounted to a crime of violence.
We affirm.
I.
The Sentencing Guidelines provide for a 16-level
enhancement in illegal entry cases where the defendant was
deported after “a conviction for a felony that is . . . a crime
of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to
§ 2L1.2 defines “crime of violence” as
2
any of the following offenses under federal, state, or
local law: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced), statutory rape,
sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a
dwelling, or any other 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).
To determine whether Alfaro’s Maryland conviction qualifies
as a crime of violence under § 2L1.2, we apply the familiar
categorical approach and compare the elements of the prior
offense to the elements of the generic federal offense. The
prior conviction qualifies as a crime of violence under the
categorical approach if the elements of the underlying statute
are the same as or narrower than the definition of the generic
offense. See United States v. Flores-Granados, 783 F.3d 487,
491 (4th Cir.), cert. denied, 136 S. Ct. 224 (2015). “However,
if the state statute criminalizes a broader scope of conduct
than the Guideline crime then it is not categorically a crime of
violence.” Id. (internal quotation marks and alterations
omitted)
The Maryland statute under which Alfaro was convicted
provides that:
(a) A person may not:
3
(1) (i) engage in sexual contact with another
without the consent of the other; and
(ii) 1. employ or display a dangerous
weapon, or a physical object that the victim
reasonably believes is a dangerous weapon;
2. suffocate, strangle, disfigure, or
inflict serious physical injury on the
victim or another in the course of
committing the crime;
3. threaten, or place the victim in
fear, that the victim, or an individual
known to the victim, imminently will be
subject to death, suffocation,
strangulation, disfigurement, serious
physical injury, or kidnapping; or
4. commit the crime while aided and
abetted by another;
(2) engage in sexual contact with another if the
victim is a mentally defective individual, a
mentally incapacitated individual, or a
physically helpless individual, and the person
performing the act knows or reasonably should
know the victim is a mentally defective
individual, a mentally incapacitated individual,
or a physically helpless individual;
(3) engage in sexual contact with another if the
victim is under the age of 14 years, and the
person performing the sexual contact is at least
4 years older than the victim;
(4) engage in a sexual act with another if the
victim is 14 or 15 years old, and the person
performing the sexual act is at least 21 years
old; or
(5) engage in vaginal intercourse with another if
the victim is 14 or 15 years old, and the person
performing the act is at least 21 years old.
Md. Code Ann., Crim. Law § 3-307 (2002). At the time of
Alfaro’s offense, “sexual contact” was defined as “an
4
intentional touching of the victim’s or actor’s genital, anal,
or other intimate area 1 for sexual arousal or gratification, or
for the abuse of either party.” Md. Code. Ann., Crim. Law § 3-
301(f)(1) (2002).
Because § 3-307 lists alternate sets of elements that
effectively create multiple versions of the crime of third-
degree sexual offense, reference to the statute alone does not
identify the set of elements that applied to Alfaro. We are
thus faced with a “divisible” statute, a circumstance that
permits us to modify the categorical approach and consult a
limited universe of “extra-statutory materials . . . to
determine which statutory phrase was the basis for the
conviction.” Descamps v. United States, 133 S. Ct. 2276, 2285
(2013) (internal quotation marks omitted).
The record in this case includes Alfaro’s state-court
indictment and jury instructions, both of which are within the
universe of documents that we may consult. See Shepard v.
United States, 544 U.S. 13, 20-21 (2005). These materials
establish that Alfaro was convicted of violating § 3-307(a)(1),
but do not further narrow the offense. Under these
1 Under Maryland law, “other intimate area” includes the
buttocks, see Bible v. State, 982 A.2d 348, 358 (Md. 2009), and
an intentional touching of an intimate area over the clothes
still amounts to sexual contact, see LaPin v. State, 981 A.2d
34, 36-37, 45 (Md. Ct. Spec. App. 2009).
5
circumstances, the categorical approach requires us to “consider
whether the full range of conduct covered by the statutory
language, including the most innocent conduct proscribed by the
statute, qualifies” as a predicate offense. United States v.
Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). Of the various
offenses identified by the Guidelines as crimes of violence,
“forcible sex offense” is the only one arguably applicable to
this case. 2
II.
On appeal, Alfaro concedes that violations of § 3-307(a)(1)
are “forcible” offenses for purposes of U.S.S.G. § 2L1.2. He
argues, however, that violations of the Maryland statute do not
qualify as “sex offenses.” Relying on our decision in Diaz-
Ibarra, Alfaro contends that an intent to gratify sexual urges
is a necessary element of a “sex offense.” As noted above, an
intent to abuse rather than an intent to gratify sexual urges
can support a conviction under the state statute, and Alfaro
2 We reject the government’s argument that a violation
of § 3-307(a)(1) qualifies as a crime of violence because it
“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). While the first three subsections of § 3-
307(a)(1) all require the use or threatened use of force, the
final subsection, which merely requires that the offense be
aided or abetted by another, contains no use-of-force element.
See Md. Code Ann., Crim. Law § 3-307(a)(1) (2002).
6
therefore argues that his conviction does not qualify as a
forcible sex offense under the categorical approach.
A.
In 2008, the Sentencing Commission resolved a circuit split
by amending § 2L1.2 to include the parenthetical statement that
the forcible-sex-offense category includes offenses “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. app. C, vol. III, Amendment
722; see United States v. Chacon, 533 F.3d 250, 257 (4th Cir.
2008) (pre-amendment case holding that a sex offense may be
“forcible” even without the use of physical force). 3 The
Guideline thus clarifies the circumstances under which a sex
offense may be considered forcible, but it provides no insight
on the issue at the heart of this appeal -- the kinds of
offenses that amount to “sex offenses.”
As previously explained, we answer that question through
application of the categorical approach, comparing the statutory
definition of the prior conviction to the definition of the
3 In United States v. Shell, 789 F.3d 335 (4th Cir.
2015), we considered the meaning of “forcible sex offenses” as
used in U.S.S.G. § 4B1.2, the career-offender guideline. Noting
that the Sentencing Commission did not amend § 4B1.2 to include
the parenthetical statement added to § 2L1.2, we held that an
offense that could be “committed without physical force and
predicated on legally invalid consent” was not a “forcible sex
offense” as used in § 4B1.2. Id. at 345-46.
7
generic federal offense -- here, “forcible sex offense.” In
cases where the enumerated generic offense is a traditional,
common-law crime, we define the generic federal offense “based
on how the offense is defined ‘in the criminal codes of most
states.’” United States v. Peterson, 629 F.3d 432, 436 (4th
Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 598
(1990)). “Forcible sex offense,” however, does not describe a
traditional common-law crime, and the phrase thus does not
invoke an established, generic structure. Because the phrase is
a broad and inclusive phrase that could encompass multiple,
divergent offenses in any given state, “it is difficult, if not
impossible,” to sift through the multitudes of qualifying state
offenses and identify a consensus set of the minimum elements
necessary to define the category. United States v. Rodriguez,
711 F.3d 541, 556 (5th Cir. 2013) (en banc) (“As a conceptual
matter, it is difficult, if not impossible, to identify an
accurate set of discrete elements that define offense categories
that do not have a generic structure that is rooted in common
law. Moreover, wide variations in prohibited conduct under
state codes make it difficult, if not impossible, to determine
whether a majority consensus exists with respect to the element
components of an offense category or the meaning of those
elements.” (citation omitted)).
8
Although we did not explicitly note the difficulty of
distilling the elements of non-traditional crimes, this court in
Chacon did not survey the states’ criminal codes to define the
“forcible” aspect of “forcible sex offenses,” but instead looked
to the plain, ordinary meaning of the language used by the
Guidelines. See Chacon, 533 F.3d at 257 (“The term ‘forcible
sex offense’ is not defined in the Guidelines and thus must be
accorded its ordinary, contemporary meaning.”). We took the
same approach in Diaz-Ibarra when defining “sexual abuse of a
minor,” another enumerated crime of violence that lacks a
common-law antecedent. See Diaz-Ibarra, 522 F.3d at 348(“Because the Sentencing Guidelines do not define the phrase
[‘sexual abuse of a minor’], we interpret it by employing the
common meaning of the words that the Sentencing Commission
used.”); cf. United States v. Rangel-Castaneda, 709 F.3d 373,
377-79 (4th Cir. 2013) (surveying state laws when determining
the generic definition of “statutory rape” as used in U.S.S.G. §
2L1.2). 4 This plain-meaning approach is consistent with that of
4 While courts have disagreed about whether statutory
rape is a common-law offense, compare United States v.
Rodriguez, 711 F.3d 541, 559 (5th Cir. 2013) (en banc), with
United States v. Brooks, 841 F.2d 268, 269 (9th Cir. 1988) (per
curiam), the crime is of ancient lineage and has a well-
understood traditional meaning – carnal knowledge of a child
under the age of consent, see Rodriguez, 711 F.3d at 570-71
(Graves, J., concurring in part and concurring in the judgment);
Brooks, 841 F.2d at 269. Looking to the states’ various
(Continued)
9
other circuits. See United States v. Ramirez-Garcia, 646 F.3d
778, 783 (11th Cir. 2011) (“For offenses not developed in the
common law, courts define a generic offense based on the
ordinary, contemporary, and common meaning of the statutory
words . . . .” (internal quotation marks omitted)); United
States v. Trinidad-Aquino, 259 F.3d 1140, 1144 (9th Cir. 2001)
(where sentencing enhancement turns on enumerated offense that
is not “a traditional common law crime,” the enumerated offense
“can only be construed by considering the ordinary,
contemporary, and common meaning of the language”); United
States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001)
(“Martinez-Carillo’s state conviction squarely fits within the
federal understanding of the phrase ‘sexual abuse of a minor,’
which adopts the ordinary, contemporary, and common meaning of
the words.”); accord Rodriguez, 711 F.3d at 556; United States
v. Romero–Hernandez, 505 F.3d 1082, 1087 (10th Cir. 2007);
United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir.
2005); United States v. Londono-Quintero, 289 F.3d 147, 153 (1st
Cir. 2002).
formulations to determine the generic federal definition of
statutory rape thus does not present the same difficulties as
does identifying a consensus set of elements defining “forcible
sex offense” or “sexual abuse of a minor.”
10
Accordingly, following the approach laid out in Chacon, we
turn to the plain and ordinary meaning of the Guidelines’
language to determine whether a conviction under Md. Code Ann.,
Crim. Law § 3-307(a)(1) qualifies as a “forcible sex offense”
for purposes of U.S.S.G. § 2L1.2. 5
B.
The ordinary construction of the “sex offense” phrase
suggests that it simply refers to criminal offenses involving
sexual conduct. See Black’s Law Dictionary (10th ed. 2014)
(defining “sexual offense” as “[a]n offense involving unlawful
sexual conduct, such as prostitution, indecent exposure, incest,
pederasty, and bestiality”); American Heritage College
Dictionary (3d ed. 1997) (defining “sex” as, inter alia, “[t]he
sexual urge or instinct as it manifests itself in behavior”).
While that definition is expansive, the language and history of
§ 2L1.2 make it clear that “forcible sex offenses” is a broad
category encompassing a wide range of statutory offenses. After
all, the Sentencing Commission did not limit its definition of
“crime of violence” to include only the most serious sex
5 In Chacon, we concluded that the word “forcible” did
not require the use of physical force as it includes compulsion
effectuated through power or pressure. See Chacon, 533 F.3d at
257. However, because the defendant did not dispute that his
Maryland conviction for second-degree sexual offense qualified
as a “sex offense,” Chacon did not offer a comprehensive
definition of the full phrase “forcible sex offense.” See id.11
offenses, such as rape, but instead included all sex offenses
that are forcibly committed. Moreover, the Commission further
confirmed the broad reach of the category by amending the re-
entry Guideline to clarify that a sex offense may be a forcible
offense even in the absence of physical force and in the
presence of factual (but legally invalid) consent. See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii).
Indeed, the circuits considering the question have defined
the “sex offense” portion of “forcible sex offense” very
broadly. For example, the Fifth Circuit defines “sex offense”
as an “offense proscribing sexual conduct,” United States v.
Garza-Guijan, 714 F.3d 332, 334 (5th Cir. 2013), while the Tenth
Circuit defines it as “an offense involving unlawful sexual
conduct,” Romero-Hernandez, 505 F.3d at 1087 (internal quotation
marks and alteration omitted). Similarly, in the Ninth and
Eleventh Circuits, a “sex offense” is an offense involving a
“sexual act,” United States v. Quintero-Junco, 754 F.3d 746, 753
(9th Cir. 2014) or “sexual contact,” United States v. Contreras,
739 F.3d 592, 597 (11th Cir. 2014).
Alfaro insists, however, that these definitions of “sex
offense” are too broad. Relying on our decision in Diaz-Ibarra,
Alfaro contends that an intent to gratify sexual urges is a
necessary element of a “sex offense.”
12
The question in Diaz-Ibarra was whether the defendant’s
convictions for attempted child molestation qualified as “sexual
abuse of a minor” and thus a crime of violence under U.S.S.G. §
2L1.2. (Like the “forcible sex offense” phrase at issue in this
case, “sexual abuse of a minor” is identified as a crime of
violence by the commentary to U.S.S.G. § 2L1.2.) Observing that
the common meaning of the word “sexual” was “of or relating to
the sphere of behavior associated with libidinal gratification,”
522 F.3d at 349 (internal quotation marks omitted), the Diaz-
Ibarra court defined the phrase “sexual abuse of a minor” as the
“physical or nonphysical misuse or maltreatment of a minor for a
purpose associated with sexual gratification,” id. at 352(internal quotation marks omitted). Alfaro argues that there is
no meaningful difference between “sex” and “sexual,” and that
the same meaning must be applied to both words, particularly
since the words are used in the same sentence in the Guidelines
commentary. Accordingly, Alfaro argues that to qualify as a
forcible sex offense under the Guidelines, the underlying
offense must require that the prohibited conduct be committed
for a purpose associated with sexual gratification. And because
§ 3-307(a)(1) can be violated with an intent to abuse rather
than an intent to gratify sexual urges, Alfaro contends that his
conviction does not qualify as a forcible sex offense. We
disagree.
13
While the words “sex” and “sexual” may have similar
meanings in certain contexts, the Diaz-Ibarra court was defining
the phrase “sexual abuse of a minor,” while we are defining the
phrase “forcible sex offense.” Those phrases are very
different, and those differences require different
interpretations of “sex” and “sexual.” See Yates v. United
States, 135 S. Ct. 1074, 1082 (2015) (“[I]dentical language may
convey varying content when used in different statutes,
sometimes even in different provisions of the same statute.”).
“Sexual abuse of a minor,” the phrase at issue in Diaz-
Ibarra, is a “broad” phrase “capturing physical or nonphysical
conduct,” United States v. Perez-Perez, 737 F.3d 950, 953 (4th
Cir. 2013), and it is the sexual-gratification element that
polices the line between lawful and unlawful conduct. Indeed,
as the court made clear in Diaz-Ibarra, the intent to gratify
sexual urges is central to the offense of sexual abuse of a
minor: “The clear focus of the phrase [‘sexual abuse’] is on
the intent of the abuser -- sexual gratification -- not on the
effect on the abused. However one styles it, ‘sexual abuse’ is
an intent-centered phrase; the misuse of the child for sexual
purposes completes the abusive act.” Id. at 350. The court in
Diaz-Ibarra thus did not hold that the word “sexual” must always
and in all circumstances be defined to include an intent to
gratify sexual urges; it held that an intent to gratify sexual
14
urges is central to and therefore is part of the ordinary
meaning of the phrase “sexual abuse.” See id. at 349(explaining that the court must “consider the phrase as a whole
to arrive at its meaning”).
An intent to gratify sexual urges, however, is not central
to the category of offenses qualifying as “forcible sex
offenses.” Although this circuit has not previously formulated
a comprehensive definition of “forcible sex offense,” we have
noted that the phrase is “intended to connote rape or other
qualifying conduct.” Rangel-Castaneda, 709 F.3d at 380; accord
United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th
Cir. 2007) (“[R]ape is a ‘sex offense,’ as the term is commonly
understood.”). Thus, however “forcible sex offense” is defined,
that definition must, at the very least, be broad enough to
include rape in its scope. While there is variation in the
states’ definitions of rape (however labeled), not a single
state includes a sexual-gratification element when defining the
most serious forms of the offense. 6 Because the intent to
6 See Ala. Code § 13A-6-61 (first-degree rape); Alaska
Stat. Ann. § 11.41.410 (first-degree sexual assault); Ariz. Rev.
Stat. Ann. § 13-1406 (sexual assault); Ark. Code Ann. § 5-14-
103(a) (rape; no sexual-gratification element if intercourse
involved); Cal. Penal Code § 261(a) (rape); Colo. Rev. Stat.
Ann. § 18-3-402(1)(a) (sexual assault; no sexual-gratification
element if penetration involved); Conn. Gen. Stat. Ann. § 53a-
70(a)(1) (first-degree sexual assault); Del. Code Ann. tit. 11,
§ 773 (first-degree rape); Fla. Stat. Ann. § 794.011 (sexual
(Continued)
15
gratify sexual urges is simply not relevant to the most serious
forms of the paradigmatic forcible sex offense, we cannot
battery); Ga. Code Ann. § 16-6-1 (rape); Haw. Rev. Stat. Ann. §
707-730 (first-degree sexual assault); Idaho Code Ann. § 18-6101(rape); 720 Ill. Comp. Stat. Ann. 5/11-1.20 (criminal sexual
assault); Ind. Code Ann. § 35-42-4-1 (rape); Iowa Code Ann. §
709.1 (sexual abuse); Kan. Stat. Ann. § 21-5503 (rape); Ky. Rev.
Stat. Ann. § 510.040 (first-degree rape); La. Stat. Ann. § 14:41(rape); Me. Rev. Stat. tit. 17-A, § 253 (gross sexual assault);
Md. Code Ann., Crim. Law § 3-303 (first-degree rape); Mass. Gen.
Laws Ann. ch. 265, § 22 (rape); Mich. Comp. Laws Ann. § 750.520b
(first-degree criminal sexual conduct); Minn. Stat. Ann. §
609.342 (first-degree criminal sexual conduct; no sexual-
gratification element if sexual penetration involved); Miss.
Code. Ann. § 97-3-95 (sexual battery); Mo. Ann. Stat. § 566.030(first-degree rape); Mont. Code Ann. § 45-5-503 (sexual
intercourse without consent); Neb. Rev. Stat. Ann. § 28-319(first-degree sexual assault); Nev. Rev. Stat. Ann. § 200.366(sexual assault); N.H. Rev. Stat. Ann. § 632-A:2 (aggravated
felonious sexual assault); N.J. Stat. Ann. § 2C:14-2(a)
(aggravated sexual assault); N.M. Stat. Ann. § 30-9-11 (criminal
sexual penetration); N.Y. Penal Law § 130.35 (first-degree
rape); N.C. Gen. Stat. Ann. § 14-27.21 (first-degree forcible
rape); N.D. Cent. Code Ann. § 12.1-20-03 (gross sexual
imposition); Ohio Rev. Code Ann. § 2907.02 (rape); Okla. Stat.
Ann. tit. 21, § 1111 (rape); Or. Rev. Stat. Ann. § 163.375(first-degree rape); 18 Pa. Stat. and Cons. Stat. Ann. § 3121(rape); 11 R.I. Gen. Laws Ann. § 11-37-2 (first-degree sexual
assault); S.C. Code Ann. § 16-3-652 (criminal sexual conduct);
S.D. Codified Laws § 22-22-1 (rape); Tenn. Code Ann. § 39-13-502(aggravated rape); Tex. Penal Code Ann. § 22.021 (aggravated
sexual assault); Utah Code Ann. § 76-5-402 (rape); Vt. Stat.
Ann. tit. 13, § 3252 (sexual assault); Va. Code Ann. § 18.2-61(rape); Wash. Rev. Code Ann. § 9A.44.040 (first-degree rape; no
sexual-gratification element if vaginal intercourse involved);
W. Va. Code Ann. § 61-8B-3 (first-degree sexual assault; no
sexual-gratification element if sexual intercourse involved);
Wis. Stat. Ann. § 940.225 (first-degree sexual assault; no
sexual-gratification element if intercourse involved); Wyo.
Stat. Ann. § 6-2-302 (first-degree sexual assault; no sexual-
gratification element if intercourse involved).
16
conclude that an intent to gratify sexual urges is part of the
ordinary meaning of “forcible sex offense.”
Moreover, since no state requires proof of an intent to
gratify sexual urges for a rape conviction, accepting Alfaro’s
argument would exclude all convictions for the most serious of
all forcible sex offenses from the definition of “forcible sex
offense,” while at the same time permitting many less-serious
crimes to be so classified. 7 We decline to endorse a definition
that would lead to such illogical results. 8 Cf. Voisine v.
7 In many states, less serious sexual offenses -- those
involving touching rather than penetration, for example -- do
include the intent to gratify sexual urges as an element of the
offense. See, e.g., Ind. Code Ann. § 35-42-4-8 (sexual
battery); Kan. Stat. Ann. § 21-5505 (sexual battery); Ky. Rev.
Stat. Ann. §§ 510.110 & 510.010(7) (sexual abuse); Neb. Rev.
Stat. Ann. §§ 28-320 & 28-318(5) (second- and third-degree
sexual assault); N.C. Gen. Stat. Ann. § 14-27.33 (sexual
battery); N.D. Cent. Code Ann. §§ 12.1-20-07 & 12.1-20-02(5)
(sexual assault); Or. Rev. Stat. Ann. §§ 163.427 & 163.305(6)
(sexual abuse); 18 Pa. Stat. and Cons. Stat. Ann. §§ 3126 & 3101
(indecent assault); 11 R.I. Gen. Laws Ann. §§ 11-37-4 & 11-37-
1(7) (second-degree sexual assault); Tenn. Code Ann. §§ 39-13-
505 & 39-13-501(6) (sexual battery); Va. Code Ann. §§ 18.2-67.4& 18.2-67.10(6) (sexual battery); W. Va. Code Ann. §§ 61-8B-7 &
61-8B-1 (6) (sexual abuse).
8 Alfaro suggests that rape offenses predicated on
sexual intercourse would qualify as forcible sex offenses
because intercourse requires “an erect penis, which necessarily
involves sexual gratification.” Brief of Appellant at 21. The
categorical approach, however, is concerned only with the
elements of the underlying offense, not the manner in which the
offense was actually committed. See Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (“[T]he categorical approach . . .
focus[es] solely on whether the elements of the crime of
conviction sufficiently match the elements of [the] generic
(Continued)
17
United States, 136 S. Ct. 2272, 2280 (2016) (addressing statute
barring possession of firearms by those convicted of a
“misdemeanor crime of violence” and rejecting definition of that
phrase that “risk[ed] rendering [the statute] broadly
inoperative in . . . 35 jurisdictions”).
Accordingly, we reject Alfaro’s argument that to qualify as
a forcible sex offense under U.S.S.G. § 2L1.2, the underlying
offense must include as an element the intent to gratify sexual
urges. Instead, we join the other circuits addressing the issue
and hold that, for purposes of the re-entry Guideline, a “sex
offense” is an offense involving sexual conduct with another
person. See Quintero-Junco, 754 F.3d at 753; Contreras, 739
F.3d at 597; Garza-Guijan, 714 F.3d at 334; Romero-Hernandez,
505 F.3d at 1087. And as the Guidelines commentary itself makes
clear, a sex offense is “forcible” if it is not consensual. See
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (explaining that “forcible sex
offenses” includes offenses “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”). While this
[offense and] ignor[es] the particular facts of the case.”).
Thus, even assuming that an intent to gratify sexual urges is
factually present in most rape cases, the absence of a sexual-
gratification element would prevent rape offenses from
qualifying as forcible sex offenses under Alfaro’s proposed
definition.
18
definition is broad, its breadth is compelled by the expansive
language chosen by the Sentencing Commission -- language that,
in our view, provides no principled basis for us to narrow the
category of qualifying offenses.
C.
Having defined the relevant phrase, we turn now to the
ultimate question in this case: Whether the least culpable
version of the crime defined by § 3-307(a)(1) -- sexual contact
while aided or abetted by another -- categorically qualifies as
a “forcible sex offense” and thus a “crime of violence” under
U.S.S.G. § 2L1.2.
We believe that question must be answered in the
affirmative. All forms of the offense as charged to the jury
require nonconsensual sexual contact, and the jury was thus
required to find that Alfaro engaged in sexual contact without
consent in order to convict him. Accordingly, the district
court did not err by treating Alfaro’s Maryland conviction as a
“forcible sex offense” under U.S.S.G. § 2L1.2(b)(1)(A). See
Quintero-Junco, 754 F.3d at 753 (statute prohibiting non-
consensual sexual contact with person over the age of 15 and
defining “sexual contact” as the direct or indirect touching of
“any part of the genitals, anus or female breast” “fits
comfortably within the broad definition of forcible sex
offense”); United States v. Diaz–Corado, 648 F.3d 290, 293 (5th
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Cir. 2011) (per curiam) (state statute prohibiting the non-
consensual, through-clothing “touching of the victim’s intimate
parts . . . for the purposes of sexual arousal, gratification,
or abuse” constitutes a forcible sex offense under U.S.S.G. §
2L1.2); Romero-Hernandez, 505 F.3d at 1087-88 & n.4 (conviction
under statute prohibiting non-consensual touching, even through
clothing, of “victim’s intimate parts” for “purposes of sexual
arousal, gratification, or abuse” qualifies as forcible sex
offense).
III.
For the foregoing reasons, we find no error by the district
court, and we hereby affirm Alfaro’s sentence.
AFFIRMED
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