United States v. Osmin Alfaro
2016 U.S. App. LEXIS 15927
| 4th Cir. | 2016Background
- Osmin Alfaro, an El Salvador native, was convicted in Maryland (2003) of third-degree sexual offense and deported in 2008; he illegally re-entered in 2010 and pleaded guilty in federal court to failure to register as a sex offender (18 U.S.C. §2250) and illegal re-entry (8 U.S.C. §1326).
- At sentencing the district court applied a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) because Alfaro’s prior felony was treated as a “crime of violence” (a "forcible sex offense").
- Maryland’s §3-307(a)(1) (third-degree sexual offense) criminalizes several alternatives: nonconsensual sexual contact, use/display of a weapon, suffocation/strangulation/serious injury, threats creating fear of imminent serious harm, or commission while aided/abetted by another.
- The statute is divisible; Shepard materials (indictment and jury instructions) show conviction under §3-307(a)(1) but do not identify which subsection applied, so the court applied the categorical approach considering the statute’s least culpable conduct.
- Alfaro conceded the statute is “forcible” but argued the offense is not a “sex offense” as defined by the Guidelines because §3-301(f)(1) allowed conviction on intent to “abuse” (not necessarily for sexual gratification).
- The Fourth Circuit affirmed, holding that a "sex offense" under §2L1.2 means an offense involving sexual conduct (not necessarily an intent to gratify), and that the least culpable variant of §3-307(a)(1) still requires nonconsensual sexual contact and therefore qualifies as a forcible sex offense.
Issues
| Issue | Alfaro's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Alfaro’s Maryland conviction is a "crime of violence" under U.S.S.G. §2L1.2 (forcible sex offense) | §3-307 can be violated by conduct aimed at "abuse" without sexual-gratification intent, so it is not a "sex offense" for §2L1.2 | §3-307 proscribes nonconsensual sexual conduct and fits within the broad Guideline category of "sex offense" | Affirmed: conviction is a forcible sex offense and a crime of violence under §2L1.2 |
| Whether the term "sex offense" requires intent to gratify sexual urges (per Diaz-Ibarra) | "Sex" must be interpreted like "sexual"; Diaz-Ibarra requires sexual-gratification intent for related categories, so §3-307 fails that test | "Forcible sex offense" is broader; intent to gratify is not necessary and would illogically exclude rape convictions | Rejected Alfaro: sexual-gratification intent not required; "sex offense" means an offense involving sexual conduct; nonconsensual sexual contact suffices |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of state-court records under the categorical approach for divisible statutes)
- Shepard v. United States, 544 U.S. 13 (2005) (defines admissible documents to identify the statutory basis of a conviction)
- United States v. Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008) (interprets "sexual abuse of a minor" to require intent tied to sexual gratification)
- United States v. Chacon, 533 F.3d 250 (4th Cir. 2008) (treats "forcible" in "forcible sex offense" by ordinary meaning and permits nonphysical compulsion)
- United States v. Quintero-Junco, 754 F.3d 746 (9th Cir. 2014) (holds nonconsensual touching statutes fit within "forcible sex offense")
- United States v. Flores-Granados, 783 F.3d 487 (4th Cir.) (explains categorical approach application to prior offenses)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifies the categorical approach focuses on statutory elements, not actual conduct)