OPINION
Jоse Bolanos-Hernandez (“Bolanos”) appeals the sentence imposed after he pleaded guilty to illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326. He contends that his sentence should be reversed because: (1) his prior conviction for assault with intent to commit rape is not a crime of violence; and (2) the .district court improperly found that he was subject to a prior conviction and that he had beеn deported subsequent to that conviction. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We hold that Bolanos’ prior California crime of assault with intent to commit rape, in violation of CaLPenal Code §§ 220 and 261(a)(2), is a crime of violence under United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2L1.2(b)(1)(A)(ii). We therefore affirm the sixteen-level enhancement imposed by the district court. We also reject Bolanos’ contention that he was sentenced based on faсts improperly found by the district court.
STANDARD OF REVIEW
[i, 2] We review the district court’s interpretation of the Guidelines, including its determination whether a prior conviction is a “crime of violence” for purposes of U.S.S.G. § 2L1.2, de novo.
United States v. Rodriguez-Rodriguez,
FACTUAL AND PROCEDURAL BACKGROUND
Bolanos, an alien, was indicted on October 18, 2005, on one count of being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. He plеaded guilty. During the plea colloquy, the district court asked Bolanos if he had been deported on October 9, 2002, and Bolanos answered that he had. The dis *1142 trict court also asked if he had subsequently entered the country without permission, and Bolanos answered that he had.
Bolanos’ presentence investigation report (“PSR”) recommended increasing his base offense level by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR asserted that Bolanos had been deported following a conviction for assault with intent to commit rape, a crime of violence, committed in 2000 in California. Based on the adjusted offense level, the PSR recommended a sentencing range of forty-one to fifty-one months.
At sentencing, the government provided several documents related to Bolanos’ pri- or conviction, including: (1) the criminal complaint charging assault with intent to commit rape; (2) Bolanos’ plea of no contest; (3) thе minute order and commitment; and (4) the transcript of Bolanos’ sentencing hearing. The documents established that Bolanos was charged and convicted of violating Cal.Penal Code §§ 220 and 261(a)(2).
Section 220 provides that “[e]very person who assaults another with intent to commit ... rape ... is punishable by imprisonment in the state prison for two, four, or six years.” Cal.Penal Code § 220 (1999). Section 261(a) defines “rape” as follows:
Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or [sic] another.
Cal.Penal Code § 261(a)(2) (1999).
At the district court sentencing hearing, the court found that the California offense of assault with intent to commit rape is categorically a crimе of violence, holding it to be a “forcible sex offense.” Consequently, the district court imposed the sixteen-level enhancement. The court sentenced Bolanos to forty-one months’ imprisonment, a three-year period of supervised release, and a $100 special assessment. •
ANALYSIS
I. Assault with Intent To Commit Rape Is a Crime of Violence.
Even though the Guidelines were made advisory in
United States v. Booker,
Section 2L1.2 of the Guidelines applies to a violation of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2 cmt. statutory provisions (2005). The Guidelines provide a base offense level of eight, with the possibility of various increases in offense level if the defendant previously was deported after certain qualifying convictions. See U.S.S.G. § 2L1.2. Pursuant to § 2L1.2(b)(1)(A), an enhancement of sixteen levels applies if Bolanos was deported after committing a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)
According to the Commentary, a “crime of violence” is defined as:
murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of *1143 physical force against the person of another.
U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (emphasis added). “Forcible sex offenses” are thus enumerated crimes of violence. Attempts to commit such offenses are also counted as crimes of violence. See id. § 2L1.2 cmt. n. 5.
To determine whether a defendant’s particular prior offense qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii), we look to the framework established by
Taylor v. United States,
We first consider what conduct is encompassed by the term “forcible sеx offense.” We ascribe traditional crimes, such as burglary or theft, their “generic, contemporary meaning,” by reference to the definitions employed by most states as well as guidance from LaFave’s treatise and the Model Penal Code.
See, e.g., Taylor,
A “forcible sex offense” is not a traditional crime. The term appears in the codes of only three states. See Cal. Welf. & Inst.Code § 602(b)(2)(C); Cal.Penal Code § 264.1 (referring to sexual intercourse or penetration by force or violence); Me.Rev.Stat. Ann. tit. 17-a, §§ 108 cmt., 253(1)(A) (referring to sexual intercourse compelled by force); N.H.Rev.Stat. Ann. § 627:4(11) (offering no additional description of the term). It is not discussed at all by the Model Penal Code or LaFave’s treatise. See generally Model Penal Code §§ 213.0-.6 (1981) (discussing sexual offenses); Wayne R. LaFave, Substantive Criminal Law 604-64 (2d ed.2003) (discussing rape). “Forcible sex offenses,” therefore, are defined according to the ordinary, contemporary, and common meaning of the term.
But we need not formulate a comprehensive definition of “forcible sex offenses” in order to resolve this appeal, as we are satisfied that assault with intent to commit rape would satisfy the ordinary, contemporary, and common meaning of a “forcible sex offense.” First, rape is a “sex offense,” as the term is commonly understood.
See
Black’s Law Dictionary 1112 (8th ed.2004) (a “sexual offense” “involv[es] unlawful sexual conduct”);
cf. United States v. Beltran-Munguia,
As the Sentencing Commission has indicated that attempt crimes cаrry the same weight as completed crimes, attempted rape would also qualify as a sex offense.
See
U.S.S.G. § 2L1.2 cmt. n. 5. Assault with intent to commit rape, in violation of California Penal Code §§ 220 (prohibiting assaults with intent to commit certain felonies) and 261 (prohibiting rape), is considered by the California courts to be an aggravated form of attempted rape.
See People v. Holt,
The question remaining is whether the offense of assault with intent to commit rape is “forcible.” Prior opinions of this circuit provide a starting point for interpretation of this element. Specifically, we have held that “forcible” connotes the use of some force outside of the aсt of unwanted penetration.
In
Beltran-Munguia,
we recently held that the Oregon crime of sexual abuse in the second degree, which criminalizes non-consensual intercourse or penetration,
2
is not categorically a forcible sex offense.
On the Other hand, “forcible” does not refer to the heightened level of force needed to qualify a crime under § 2L1.2’s provision that a crime of violence includes “any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the pеrson of another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In considering whether an offense fits under this “catch-all” provision, we require that such force “ ‘must actually be violent in nature.’ ”
United States v. Ceron-Sanchez,
The Sentencing Commission has disavowed such a result. Prior to November 1, 2003, the definition of “crime of violence” contained within the commentary to § 2L1.2 was as follows:
(I) means an offense under federal, state, or local law that has as an element the use, attempted use, or threatеned use of physical force against the person of another; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii) (2002) (amended 2003).
The preceding definition was amended in 2003 to its current definition, which (among other changes) combines sub-sections I and II, reverses their order, and changes the connecting word from “and” to “or:”
“Crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
Id. § 2L1.2 cmt. n. 1(B)(iii) (2005).
The Cоmmission explained that the reason for the commentary amendment was to
clarif[y] the meaning of the term “crime of violence” by providing that the term “means any of the following:.... ” The previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor and residential burglary, also had to include as an element of the offense “the use, attempted use, or *1146 threatened use оf physical force against the person of another.” The amended definition makes clear that the enumerated offenses are always classified as “crimes of violence,” regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another.
Id.
app. C, vol. II, amd. 658, at 401-02 (Nov. 1, 2003);
3
cf. Asberry,
Forcible sex offenses therefore require more force than that inherent to penetration but need not require violent force. After examining California’s interpretation of assault with intent to commit rape in light of the above considerations, we conclude that it is “forcible” because California courts require- a showing that the defendant has used or attempted at least some level of force on the victim.
A conviction for assault with intent to commit rape, in violation of Cal.Penal Code §§ 220 and 261(a)(2), requires proof of the elements of attempted rape plus those of assault.
People v. Pierce,
1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person; .
2. The person committing the act was aware of facts that would lead a reasonable person to realizе that as a direct, natural, and probable result of this act that physical force would be applied to another person; and
3. At the time the act was committed, the person committing the act had the present ability to apply-physical force on the person of another.
CALJIC 9.00 (2006). 4 Each of these elements specifically discusses the application of actual or attempted physical force on *1147 the victim. Assault with intent to commit rape therefore requires at least the attempted application of some physical force. 5
Further, the force appears to be in addition to that required to complete intercourse or penetration. We have located no case in which a defendant was convicted of assault with intent to commit, rape without conduct involving the application of force above and beyond the fоrce inherent to the threatened act of penetration. For example, in
People v. Davis,
*1148 Thus, because California caselaw suggests that the ordinary conviction for violating California Penal Code §§ 220 and 261(a)(2) will involve the application or threat of force, extrinsic to the force required for penetration, and because the essential crime is an attempted rape, we hold that assault with intent to commit rape is a forcible sex offense.
II. The District Court Made No Improper Findings of Fact.
Bolanos argues that the district court found that he was removed subsequent to a prior conviction, extending its judicial factfinding “beyond the conclusive judicial record of a prior conviction,” even though
Shepard,
Bolanos’ argument with respect to the validity of
Almendarez-Torres
is foreclosed by our precedent.
See, e.g., United States v. Maciel-Vasquez,
CONCLUSION
As an aggravated form of attempted rape, the California crime of assault with intent to commit rape, in violation of Cal.Penal Code §§ 220 and 261(a)(2) is a sex offense which requires the attempted use of force. Bolanos’ California conviction for assault with intent to commit rape is therefore a forcible sex offense, and was correctly designated a “crime of violence” under U.S.S.G. § 2L1.2. The district court did not improperly find аny facts beyond the fact of Bolanos’ prior conviction, and circuit precedent forecloses Bolanos’ contention that Almendarez-Torres is invalid. The district court’s sentence is
AFFIRMED.
Notes
. Under the Oregon statute:
A person commits the crime of sexual abuse in the second degree when that person subjects another person to sexual intercourse, deviate sexual intercourse or ... penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim doеs not consent thereto.
Or.Rev.Stat. § 163.425.
. We recognize the tension between this statement by the Sentencing Commission and our holdings in
Beltran-Munguia
and
Lopez-Montanez,
which do require forcible sex offenses to contain an element of force. Generally, we must follow the Commentary to the Guidelines in interpreting Guidelines provisions, unless the Commentary "violates the Constitution or a federal statute, or is inconsistent with the Guidelines.”
United States v. Asberry,
. These instructions track Cal.Penal Code § 240, which defines "assault” as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of an *1147 other.” Bolanos was not charged with violating § 240, but, as noted above, § 220 incorporates the elements of assault.
. Caselaw similarly focuses on the defendant’s intent to apply force, holding that assault with intent to commit rape is complete once the defendant "intends to use whatever force may be required” to commit the sexual act against the will of the victim.
People v. Maury,
. Bolanos argues that his crime is not a categorical crime of violence because one can violate California’s forcible rape statute, California Penal Code § 261(a)(2), by accomplishing sexual intercourse through "fear of immеdiate and unlawful bodily injury.” Therefore, the California statute defining assault with intent to commit rape criminalizes conduct that would not constitute force.
See People v. Iniguez,
We are unmoved by Bolanos’ argument because, as discussed above, Bolanos was convicted of assault with intent to commit rape. He identifies no case that would breathe life into his hypothetical scenario in which a California сourt would convict a defendant of committing an
assault
with intent to commit rape by means of instilling an unreasonable fear in the victim.
Cf. Duenas-Alvarez,