Background

• Diaz–Corado, a Guatemalan citizen, was deported in 2009 after pleading guilty in Colorado to unlawful sexual contact; the Colorado charge included other counts for aggravated incest and child sex offenses, which were dismissed.
• Diaz–Corado later pled guilty to illegal reentry under 8 U.S.C. § 1326 in 2009.
• The PSR applied a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) on the basis that unlawful sexual contact was a crime of violence, plus a 3-level reduction for acceptance of responsibility.
• The district court overruled Diaz–Corado’s objection that the Colorado conviction was not a crime of violence under § 2L1.2(b)(1)(A)(ii) and sentenced him to 51 months.
• On appeal, Diaz–Corado argues the conviction is not a crime of violence and the sentence exceeds the applicable Guidelines range; the Fifth Circuit reviews de novo the Guideline interpretation.
• The court affirms, concluding unlawful sexual contact is a forcible sex offense under the amended Commentary and thus a crime of violence for § 2L1.2 purposes.

Issues

Key Cases Cited

• Gomez–Gomez, 547 F.3d 242 (5th Cir. 2008) (en banc held analysis of forcible sex offense; later amended by Commentary)
• Romero–Hernandez v. United States, 505 F.3d 1082 (10th Cir. 2007) (precedent cited on force/consent in sex offenses and lack of consent constitutes forcible conduct)
• Rodriguez–Juarez, 631 F.3d 192 (5th Cir. 2011) (discusses applicability of amended § 2L1.2 definitions)
• Olalde–Hernandez, 630 F.3d 372 (5th Cir. 2011) (guideline interpretation for crime of violence)
• Herrera, 2011 WL 2698982 (5th Cir. 2011) (applies amended Commentary definition to find forcible sex offense)
• Stinson v. United States, 508 U.S. 36 (U.S. 1993) (authoritative interpretation of Guideline Commentary)