United States v. Raul Dagoberto Contreras
739 F.3d 592
| 11th Cir. | 2014Background
- Contreras, a national of El Salvador, pleaded guilty to illegal reentry after removal for an aggravated felony; PSR added a 16-level enhancement if prior conviction is a crime of violence.
- Contreras had Florida second-degree sexual battery under Fla. Stat. § 794.011(5); the district court found it is not a crime of violence and replaced the 16-level enhancement with an 8-level enhancement under § 2L1.2(b)(1)(C).
- The government appeals, arguing § 794.011(5) is a crime of violence under § 2L1.2(b)(1)(A) and thus warrants the 16-level enhancement.
- At sentencing, the court treated the Florida statute as not involving force beyond nonconsensual touching, and concluded the 16-level enhancement was unwarranted; it vacated the 16-level enhancement and sentenced Contreras using an 8-level enhancement.
- The Eleventh Circuit applies a categorical (and sometimes modified-categorical) approach to determine if a prior conviction constitutes a crime of violence, and relies on the 2008 amendment defining forcible sex offenses to include nonconsensual conduct without physical force as a crime of violence.
- The court vacates Contreras’ sentence and remands for resentencing consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Florida § 794.011(5) a crime of violence under § 2L1.2(b)(1)(A)? | Government argues § 794.011(5) is a forcible sex offense and a crime of violence. | Contreras contends the statute does not require force and thus is not a forcible sex offense. | Yes; it is a forcible sex offense and a crime of violence. |
| Does the 2008 Amendment define forcible sex offenses to include nonconsensual conduct without physical force? | Government relies on Amendment defining forcible sex offenses to include lack of valid consent. | Contreras contends the pre-amendment definition does not include such conduct. | Yes; the amendment includes such conduct, making the offense a crime of violence. |
| Did the district court err in applying only an 8-level enhancement instead of 16-level for a prior crime of violence? | Government seeks 16-level enhancement under § 2L1.2(b)(1)(A). | Contreras argues the offense does not qualify as a crime of violence. | Yes; the district court erred and the 16-level enhancement applies. |
| Is Johnson v. United States (ACCA context) applicable to § 2L1.2 determinations here? | Not directly; Johnson addresses a different statute (ACCA). | Some analogy drawn by district court is misplaced. | No; Johnson is inapplicable to § 2L1.2. |
Key Cases Cited
- Diaz-Cordero v. United States, 716 F.3d 1345 (11th Cir. 2013) (applies categorical approach to crime of violence)
- Palomino Garcia v. United States, 606 F.3d 1317 (11th Cir. 2010) (defines approach to determining crime of violence under § 2L1.2)
- Gomez-Gomez v. United States, 493 F.3d 562 (5th Cir. 2007) (illustrates pre-amendment view on forcible sex offenses)
- Sarmiento-Funes v. United States, 374 F.3d 336 (5th Cir. 2004) (pre-amendment interpretation of forcible sex offenses)
- Garza-Guijan v. United States, 714 F.3d 332 (5th Cir. 2013) (post-amendment affirmation that § 794.011(5) is a forcible sex offense)
- Johnson v. United States, 559 U.S. 133 (U.S. 2010) (ACCA violent felony standard; not controlling for § 2L1.2)