United States v. Madrid, 2015 U.S. App. LEXIS 19133

In 2014 Jonathan Madrid pled guilty to possession with intent to distribute methamphetamine; a PSR classified him as a career offender under U.S.S.G. §4B1.1 based in part on a 2004 Texas conviction for aggravated sexual assault of a child (Tex. Penal Code §22.021(a)(1)(B)(i) & (a)(2)(B)).
The career-offender designation raised his Guidelines range from 92–115 months to 188–235 months; the district court adopted the PSR and imposed an enhanced sentence (188 months).
Madrid appealed, challenging only whether his 2004 Texas statutory-rape conviction qualifies as a "crime of violence" under U.S.S.G. §4B1.2.
The Texas subsections of conviction criminalize penetration of a child under 14 by any means and lack an express element requiring force or lack of consent.
The Tenth Circuit applied the modified categorical approach, examined the statutory elements (not facts), and considered whether the offense fit any §4B1.2 categories: force-as-an-element, an enumerated "forcible sex offense," or the residual clause.
The court concluded the statute does not require force, the conviction is not a "forcible sex offense," and the Guidelines' residual clause is void for vagueness under Johnson; it vacated Madrid’s sentence and remanded for resentencing.

Issue	Madrid's Argument	Government's Argument	Held
Whether the Texas §22.021(a)(1)(B)(i)/(a)(2)(B) conviction has as an element the use, attempted use, or threatened use of physical force (§4B1.2(a)(1))	The statute does not include force; conviction can be obtained without proof of force	Force is inherent given adult/child power imbalance and typical facts	Held: No—statute lacks a force element; conviction does not qualify under §4B1.2(a)(1)
Whether the conviction is an enumerated "forcible sex offense" under §4B1.2 commentary	Statutory rape with victims under 14 is forcible per se	The offense is forcible given victim’s age and power asymmetry; factual coercion present	Held: No—statute allows possible factual consent and omits coercion language; not a forcible sex offense
Whether the conviction qualifies under the Guidelines' residual clause (§4B1.2(a)(2))	If not covered by elements or enumeration, residual clause could apply	Residual clause could reach the offense as posing serious risk of physical injury	Held: Court found the residual clause void for vagueness under Johnson and cannot be used to enhance sentence
Whether any error is plain and warrants resentencing even though vagueness was not raised below	Enhancement under an unconstitutional guideline affected sentencing and substantial rights	Enhancement was based on career-offender status supported by the PSR	Held: Yes—plain error; substantial rights affected; remand for resentencing granted

Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual-clause holding that similar residual language is unconstitutionally vague)
Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining the modified categorical approach for divisible statutes)
United States v. Wray, 776 F.3d 1182 (10th Cir. 2015) (statutory rape not per se a forcible sex offense when statute allows factual consent)
United States v. Rooks, 556 F.3d 1145 (10th Cir. 2009) (distinguishing forcible/non-forcible sexual-assault provisions of Texas law; left statutory-rape question unresolved under elements approach)
United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003) (adult sexual penetration of a natural child may imply coercive force in incest context)
Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative absent conflict with statute or Constitution)
Peugh v. United States, 133 S. Ct. 2072 (2013) (Guidelines subject to constitutional scrutiny despite advisory status)