United States v. Hans Cabrera-Umanzor
2013 U.S. App. LEXIS 17751
| 4th Cir. | 2013Background
- Defendant Hans Cabrera-Umanzor pleaded guilty to unlawful reentry after deportation under 8 U.S.C. § 1326(a)(1).
- At prior Maryland conviction (Md. Code, art. 27, § 35C), Cabrera admitted sexual intercourse with an 11‑year‑old when he was 19 and was convicted for causing abuse to a child (sexual abuse).
- Sentencing Guideline U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides a 16‑level enhancement for deportation following a felony that is a “crime of violence”; commentary lists forcible sex offenses, sexual abuse of a minor, statutory rape, and any offense with as an element the use/threatened use of physical force.
- District court applied the modified categorical approach, treated Cabrera’s § 35C conviction as a forcible sex offense, applied the 16‑level enhancement, and sentenced him to 41 months.
- On appeal, the Fourth Circuit—relying on United States v. Gomez and the Supreme Court’s Descamps decision—held the modified categorical approach was inapplicable because § 35C’s elements do not align with the enumerated crimes of violence; consequently § 35C sexual‑abuse convictions are not categorically crimes of violence for § 2L1.2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the modified categorical approach could be used to determine if a § 35C conviction is a Guideline "crime of violence." | Gov: § 35C is divisible because it references specific sex crimes (e.g., rape, sexual offense) and some referenced offenses are categorically crimes of violence. | Cabrera: § 35C’s sexual‑abuse elements are broader and serve as an umbrella; the listed crimes are illustrative means, not alternative elements, so statute is not divisible for this purpose. | Court: Modified categorical approach inapplicable—§ 35C’s elements do not divide into categories that match the Guideline enumerated crimes. |
| Whether sexual abuse under § 35C is categorically a "forcible sex offense." | Gov: Prior conduct (intercourse with an 11‑year‑old) is a forcible sex offense. | Cabrera: § 35C does not require force or threat; it covers omissions and non‑contact conduct, so it lacks the force element. | Court: Not a forcible sex offense—§ 35C lacks required force/compulsion element. |
| Whether sexual abuse under § 35C is categorically "sexual abuse of a minor" as defined in the Guidelines commentary. | Gov: The offense involves sexual mistreatment of a child and therefore fits. | Cabrera: § 35C does not require sexual‑gratification intent; the Guideline definition requires a sexual‑gratification element. | Court: Not categorical sexual abuse of a minor—the statute does not require intent to gratify sexual urges. |
| Whether sexual abuse under § 35C is categorically "statutory rape." | Gov: Some incorporated offenses (e.g., rape) may match statutory rape. | Cabrera: § 35C convictions can be based on non‑contact or omission conduct; statutory rape requires sexual intercourse. | Court: Not statutory rape—§ 35C does not require intercourse or touch. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach to divisible statutes whose categories align with the generic offense)
- United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (interpreting divisibility and modified categorical approach for Maryland child‑abuse statute)
- Taylor v. United States, 495 U.S. 575 (1990) (articulates categorical approach focusing on statutory elements)
- United States v. Rangel‑Casteneda, 709 F.3d 373 (4th Cir. 2013) (applies Taylor’s generic‑meaning rule in sentencing context)
- United States v. Chacon, 533 F.3d 250 (4th Cir. 2008) (discusses forcible sex‑offense requirement of force or compulsion)