United States v. Diaz-Corado
2011 U.S. App. LEXIS 15880
| 5th Cir. | 2011Background
- Diaz-Corado pled guilty to illegal reentry after deportation; sentenced to 51 months.
- Prior Colorado conviction: unlawful sexual contact under Colo. Rev. Stat. § 18-3-404(1)(a).
- PSR increased offense level by 16 for crime of violence, plus base 8 and 3-point acceptance of responsibility.
- Defendant objected that unlawful sexual contact was not a crime of violence under § 2L1.2(b)(1)(A)(ii).
- District court overruled objection and imposed 51-month sentence; Diaz-Corado appealed challenging the crime-of-violence finding.
- Court ultimately held unlawful sexual contact is a forcible sex offense and a crime of violence for guideline purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unlawful sexual contact is a crime of violence | Diaz-Corado: not a crime of violence; no force element. | Government: amended Commentary includes lack of valid consent as forcible; thus crime of violence. | Unlawful sexual contact is a forcible sex offense; qualifies as a crime of violence. |
Key Cases Cited
- United States v. Gomez-Gomez, 547 F.3d 242 (5th Cir. 2008) (en banc definition of forcible sex offense)
- United States v. Herrera, 647 F.3d 172 (5th Cir. 2011) (amendment to Commentary expanding forcible sex offense to lack of consent)
- United States v. Rodriguez-Juarez, 631 F.3d 192 (5th Cir. 2011) (revisions to § 2L1.2(b)(1)(A)(ii) make prior precedent inapplicable)
- United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007) (forcible contact doctrine in pre-amendment context)
- United States v. Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011) (analysis of whether statute has essential element of force)
- United States v. Rosas-Pulido, 526 F.3d 829 (5th Cir. 2008) ( cited but not controlling after amendments)