United States v. Herrera
2011 U.S. App. LEXIS 14314
| 5th Cir. | 2011Background
- Herrera pled guilty to illegal re-entry; district court sentenced him to 46 months with a 3-year supervised release and a $100 mandatory special assessment.
- The district court applied a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) based on Herrera's Arkansas conviction for a crime of violence.
- The Arkansas conviction was for sexual assault in the second degree under Ark. Code § 5-14-125 (2001), arising from a 2002 plea to a lesser-included offense of rape; Herrera was later deported.
- The PSR attributed 3 points for the Arkansas conviction and 3 more for illegal re-entry, totaling 6 points and a criminal history category III, yielding a 46–57 month guideline range.
- Herrera appealed, challenging the sixteen-level enhancement as to whether the Arkansas conviction qualifies as a crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Arkansas conviction is a crime of violence under § 2L1.2(b)(1)(A)(ii). | Herrera contends the Arkansas offense does not meet the crime-of-violence definition. | Prosecution argues the conviction fits either the element-based or enumerated-offense approach. | Yes; the conviction qualifies as a crime of violence. |
| Whether subsection (a)(1) (forcible compulsion) constitutes a forcible sex offense. | Herrera asserts forcible compulsion may be broader than the guideline's forcible sex offense. | The government contends forcible compulsion falls within the enumerated or element-based scope of violence. | Yes; subsection (a)(1) can be a forcible sex offense under the guideline. |
| Whether subsection (a)(2) (physically helpless/mentally incapacitated) is a forcible sex offense. | Herrera does not argue this point specifically; challenge focuses on (a)(1). | Prosecution maintains (a)(2) fits the forcible sex offense category as involuntary consent. | Yes; subsection (a)(2) is a forcible sex offense. |
| What is the proper approach to determining a prior conviction's status (elements vs. facts). | Herrera relies on factual underlying conduct for categorization. | The court uses the categorical approach focusing on the statute's elements. | Court uses the elements-based (categorical) approach. |
Key Cases Cited
- Hernandez-Galvan v. United States, 632 F.3d 192 (5th Cir. 2011) (de novo review of crime-of-violence determination)
- Gomez-Gomez II, 547 F.3d 242 (5th Cir. 2008) (en banc; interpretation of 'crime of violence' and forcible sex offense)
- Gomez-Gomez, 493 F.3d 562 (5th Cir. 2007) (en banc; pre-amendment reasoning on forcible sex offense)
- Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006) (guideline interpretation of 'crime of violence')
- Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011) (statutory interpretation guiding violence classification)
- Remoi, 404 F.3d 789 (3d Cir. 2005) (persuasive Third Circuit reasoning on forcible sex offense)
- Joyner v. State, 303 S.W.3d 54 (Ark. 2009) (note that certain subsections are not lesser-included offenses of rape)
- Garrity v. New Jersey, 385 U.S. 493 (1985) (broad conception of coercion including mental compulsion)