Lead Opinion
OPINION
Candelario Silvestre Beltran-Munguia pleaded guilty, under 8 U.S.C. § 1326, to unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. This case presents the question whether a prior felony conviction under Oregon Revised Statute (ORS) section 163.425 for sexual abuse in the second degree qualifies as a “crime of violence” for purposes of that guideline. We hold that it does not, both because the state statute does not make force — be it used, attempted, or threatened — an element of the crime and because the crime does not constitute a “forcible sex offense” within the meaning of the applicable guideline. Because the district court concluded otherwise, we vacate Beltran-Munguia’s sentence and remand for resentencing.
Beltran-Munguia also contends that his sentence violates his Fifth and Sixth Amendment rights because the district judge found facts about his prior conviction that allowed him to increase his sentence beyond the two-year maximum allowed under 8 U.S.C. § 1326(a). This argument is foreclosed by Supreme Court and Ninth Circuit precedents.
I
The base offense level for a violation of § 1326 is eight. U.S. Sentenoing Guidelines Manual § 2L1.2(a). Where the defendant was previously deported after being convicted of a felony that constitutes a “crime of violence,” the offense level goes up by sixteen levels. Id. § 2L1.2(b)(l)(A)(ii).
The presentence report (“PSR”) on Beltran-Munguia noted that he had been previously convicted for sexual abuse in
We review de novo the district court’s decision that a defendant’s prior conviction qualifies for a sentencing enhancement under U.S.S.G. § 2L1.2(b). See United States v. Gonzalez-Perez,
II
For the purpose of § 2L1.2(b)(l)(A)(ii), a “crime of violence” is defined as:
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.
U.S. SENTENCING GüIDELINES MANUAL § 2L1.2 cmt. n. l(B)(iii) (emphases added). Applying this definition, second-degree sexual abuse in Oregon constitutes a “crime of violence” only if: (1) the crime qualifies as a “forcible sex offense,” a term left undefined by the guidelines; or (2) conviction of the crime requires proof of “the use, attempted use, or threatened use of physical force against the person of another.”
A
We begin with the latter possibility.
In Taylor v. United States,
A plain reading of ORS section 163.425 makes clear that force — used, attempted, or threatened — is decidedly not an “element” of the crime of second-degree sexual abuse in Oregon. Instead, the victim’s lack of consent is the crime’s defining characteristic.
Specifically, under the state 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 does not consent thereto.
OR. Rev. Stat. § 163.425(1) (emphasis added). Thus, the government bears no burden of proving force extrinsic to the act of penetration. By comparison, when prosecuting a defendant for either rape in the first degree or sexual abuse in the first degree under ORS sections 163.375(l)(a) and 163.427(l)(a)(B), respectively, the state bears the burden of proving that the victim was “subjected to forcible compulsion,.” Id. §§ 163.375(l)(a), 163.427(l)(a)(B) (emphasis added).
That the same “forcible compulsion” requirement does not apply to second-degree sexual abuse is evident not only from the language of ORS section 163.425 but also from its legislative history. That history makes clear that ORS section 163.425 was enacted to fill a specific “omission” in the Oregon criminal code — namely, the failure to make criminal “subjecting] another to sexual intercourse without the victim’s consent — but not by forcible compulsion.” See State v. Stamper,
That force, actual or inchoate, is not a required element of ORS section 163.425 is further corroborated by the Oregon appellate decisions that have interpreted the statute. Those decisions make clear that a defendant can be convicted of second-degree sexual abuse where the victim professed consent but was legally incapable of giving it. See id. at 179; State v. Mezick,
ORS section 163.315 delineates four types of legal incapacity that apply to all sexual offenses listed in the Oregon criminal code, including second-degree sexual abuse. See Ok. Rev. Stat. § 163.315; Lan-dino,
*1046 A person is considered incapable of consenting to a sexual act if the person is:
(a) Under 18 years of age;
(b) Mentally defective;
(c) Mentally incapacitated; or
(d) Physically helpless.
OR. Rev. Stat. § 163.315(1). ORS section 163.305, in turn, defines the terms “mentally defective,” “mentally incapacitated,” and “physically helpless.” Id. § 163.305(3)-(5). To be “mentally defective,” for example, “means that a person suffers from a mental disease or defect that renders[her] incapable of appraising the nature of the conduct of the person.” Id. § 163.305(3). To be “mentally incapacitated,” the victim must have been
rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense because of the influence of a controlled or other intoxicating substance administered to the person without the consent of the person or because of any other act committed upon the person without [her] consent.
Id. § 163.305(4). Finally, to be “physically helpless,” the victim must have been “unconscious or for any other reason [was] physically unable to communicate unwillingness to an act.” Id. § 163.305(5).
Given the applicability of ORS section 163.315 to ORS section 163.425, a perpetrator could commit second-degree sexual abuse by surreptitiously adding to his victim’s drink a drug that affects one’s judgment, thereby rendering her “mentally incapacitated.” She would then be legally incapable of consent even if she participated fully in the sex act. Similarly, the victim could be “mentally defective,” yet fully physically cooperative. Under both those circumstances, a perpetrator would not necessarily have to use, attempt to use, or threaten to use any force above and beyond the force inherent in the act of penetration, see infra p. 1047, to commit second-degree sexual abuse. In other words, under such circumstances, a perpetrator would not have categorically committed a “crime of violence,” as the term is defined for purposes of § 2L1.2(b)(l)(A)(ii).
To be sure, a victim of second-degree sexual abuse could, in reality, have been subjected to force during the commission of the crime. In defining the term “without [her] consent,” the Oregon state legislature included not only victims “considered to be incapable of consenting as a matter of law,” but also victims who were “forcibly compelled to submit” and victims who did “not acquiesce in the actor’s conduct.” Stamper,
B
The government argues otherwise, and in so doing, claims support in this circuit’s case law. We do not agree that our precedents support the proposition that § 2L1.2(b)(l)(A)(ii) applies where it is possible that force will be used to accomplish the sex crime but the prosecution need not prove that it was.
United States v. Yanez-Saucedo,
As the careful wording of Yanez-Saucedo indicates, this circuit has never held that a sex crime can be considered to require the “use of force,” as an element of the crime, simply because it involves the act of penetration. While we have never expressly ruled out that possibility, the majority of other circuits have. See United States v. Sarmiento-Funes,
Like in Yanez-Saucedo, in Castro-Baez v. Reno,
United States v. Cortez-Arias,
Finally, United States v. Riley,
Under § 4B1.2(a), a “crime of violence” is a federal or state felony that:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (emphases added). Although the first part of this definition mirrors some of the language used in the commentary to § 2L1.2(b)(l)(A)(ii), the second part of the definition — in particular, the words “otherwise involves conduct that presents a serious potential risk of physical injury to another” — are unique to § 4B1.2. It was those words that Riley relied upon when it held that “simple rape” constituted a crime of violence, emphasizing the potential risk of violence inherent in all sexual crimes. See
Because § 4B1.2 contains the “serious potential risk of physical injury” catchall provision not applicable to § 2L1.2(b)(l)(A), Riley does not control our outcome. Cortez-Arias ■ dictates this conclusion, as it declined to transfer to the § 2L1.2(b)(l)(A) context a holding premised on the “serious risk” language in § 4B1.2(a):
Cortez-Arias received a sentencing enhancement under USSG § 2L1.2. The commentary to that section defines a “crime of violence” somewhat differently than does § 4B1.2(a)_ Neither[§ 2L1.2] nor its commentary in explicit words refer to crimes that “involve conduct that presents a serious risk of physical injury to another.”
Accordingly, we conclude that ... [a case] holding that California Penal Code section 246 is a “crime of violence” [for purposes of § 4B1.2] because it involves conduct that presents a serious risk of physical injury to another does not necessarily resolve the question of whether the same offense is a “crime of violence” for purposes of USSG § 2L1.2.
There are cases in our circuit containing language which, taken out of context, can
We note that the holding of Cortez-Arias is supported by the fact that § 4B 1.2(a) defines “crime of violence” under that section as encompassing, in addition to the list of per se crimes of violence, both offenses that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” and offenses that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” while the definition applicable to § 2L1.2(b)(l)(A)(ii) contains only the former phrase. Compare U.S. Sentencing Guidelines Manual § 4B1.2(a), with id. § 2L1.2 cmt. n. l(B)(iii). To equate the two sections even though one has a phrase of some length entirely absent from the other would violate established principles of construction proscribing interpretations that assume mere surplusage. See, e.g., United States v. Stevens,
Nor does Riley’s reliance on the words “serious potential risk of physical injury to another” mean that second-degree sexual abuse in Oregon necessarily involves the “threatened use of physical force.” In explicating what it meant by “risk,” Riley reasoned that the act of rape, whether overtly forceful or “merely” nonconsensual, always “creates an atmosphere that fosters the potential for physical confrontation.”
In short, because ORS section 163.425 of the Oregon Revised Statutes does not make “the use, attempted use, or threatened use of physical force” an element of the crime of second-degree sexual abuse, Beltran-Munguia’s prior conviction does not qualify as a “crime of violence” under this prong of our §, 2L1.2(b)(l)(A)(ii) analysis.
C
Beltran-Munguia’s prior conviction does not qualify as a “crime of violence” under § 2L1.2(b)(l)(A)(ii)’s “forcible sex offenses”, alternative either. Not surprisingly, given its language, we have interpreted the phrase “forcible sex offenses” as requiring the use of force, an interpretation that precludes application to the Oregon crime here at issue.
United States v. Lopez-Montanez,
Although we have already determined that sexual abuse in the second degree does not categorically require the use of force, under the modified categorical approach we separately consider whether any judicially noticeable facts show that Beltran-Munguia was in fact convicted of committing second-degree sexual abuse through the use of force. See United States v. Rivera-Sanchez,
As a result, Beltran-Munguia’s conviction of second-degree sexual abuse under Oregon law does not amount to a “crime of violence” under the modified categorical approach.
Ill
Beltran-Munguia next argues that the district judge violated his Fifth and Sixth Amendment rights by finding that his deportation occurred “subsequent to” a prior conviction. We reject this argument.
Under recent Supreme Court and Ninth Circuit jurisprudence, Almendarez-Torres v. United States,
We have held, in contrast, that district courts do commit Apprendi error by finding on its own both the fact of prior removal and the fact of prior conviction. See United States v. Zepeda-Martinez,
IV
In conclusion, the sentencing judge erred when he enhanced Beltran-Mung-uia’s sentence sixteen levels, under § 2L1.2(b)(l)(A)’s “crime of violence” provision. As a result, we vacate Beltran-Munguia’s sentence and remand for resen-tencing.
VACATED AND REMANDED.
Notes
. The Sentencing Guidelines are, of course, now advisory rather than mandatory. See United States v. Booker,
. Because ORS section 163.425 makes no mention of the age of the victim, it is clear from the face of the statute that second-degree sexual abuse cannot be categorically classified as "sexual abuse of a minor” or "statutory rape.”
. The original second-degree sexual abuse statute was adopted in 1971, but treated the offense as only a Class A misdemeanor. See Or. Rev. Stat. § 163.415 (1971). In 1983, the statute was codified as section 163.425 and reclassified as a Class C felony. We note that Oregon now also criminalizes this exact "omission” as rape in the first degree. See Or Rev Stat. § 163.375(l)(d).
. Landino interpreted an earlier version of Oregon's second-degree sexual abuse statute, codified as ORS section 163.415, which defined the offense, in relevant part, as follows:
*1046 A person commits the crime of sexual abuse in the second degree if he subjects another person to sexual contact; and
(a) The victim does not consent to the sexual contact; or
(b) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless.
Or. Rev. Stat. § 163.415(1) (1971). The current version of Oregon’s second-degree sexual abuse statute, codified as ORS section 163.425, contains a more specific definition of the type of "sexual contact” at issue and has also replaced subparts (a) and (b) with the general language "the victim does not consent thereto.” Despite this change, Landino remains good law, and the new language regarding consent still encompasses the four categories of legal incapacity listed in section 163.315. See Stamper,
. Under Washington Revised Code section 9A.44.060(1), a person is guilty of third-degree rape if he engaged in sexual intercourse: "(a) [w]here the victim did not consent ... and such lack of consent was clearly expressed by the victim’s words or conduct, or (b) [wjhere there is threat of substantial unlawful harm to property rights of the victim.” Wash. Rev. Code § 9A.44.060(1).
. In addition, the Eleventh Circuit case law that underlies Ivory has evolved differently than similar case law in our circuit. Compare Ivory,
. Under the California statute:
Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.
Cal. Penal Code § 243.4(a) (emphasis added).
. The Third Circuit has concluded otherwise, holding that a “forcible sex offense” does not require some "application of direct physical force.” See United States v. Remoi,
. We do not decide whether the modified categorical approach can be used to decide if a prior conviction constitutes a "crime of violence” under the provision that defines § 2L1.2(b)(l)(A)(ii) to include "any offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.” We have previously assumed both that this approach does apply and that it does not. Compare United States v. Martinez-Martinez,
. Although we vacate Beltran-Munguia’s current sentence, we reach this claim because it is likely to be raised again if we do not. On remand, the district court will have to recalculate the appropriate guidelines level. See Cantrell,
Concurrence Opinion
concurring.
I am bound by precedent to concur. I write separately, however, because of the injustice resulting from our precedents. In our zeal to be good legal technicians, we are abandoning the role of common sense in fashioning appropriate punishment for repeat offenders like Beltran-Munguia. Our current case law yields a result that minimizes a crime effected by exploiting a victim’s helplessness. For purposes of a “crime of violence” enhancement, I have conceptual difficulties characterizing the “force” of physical penetration imposed on an unwilling victim as different in kind from the physical force imposed to overcome the victim’s unwillingness. From the victim’s perspective, both acts are “violent” and surely non-consensual. Nevertheless, I cannot say that the Oregon offense requires the prosecution to prove the use, attempted use, or threatened use of physical force to sustain a conviction. See United States v. Hasan,
Were I writing on a clean slate, I would hold that the Oregon conviction categorically qualifies as a “crime of violence” because it is a specifically enumerated offense — namely,, a “forcible sex offense.” In my view, a sex offense committed against an unconscious victim is as much a “crime of violence” as a sex offense involving physical force committed against a conscious victim. In both circumstances, the perpetrator commits an act against the victim’s will. The law presumes that were the victim competent and capable of giving consent, she would not, and that she would resist the assault as best she could.
Neither the Sentencing Guidelines nor their commentary define “forcible sex offenses.” Were I not confined by United States v. Lopez-Montanez,
The Guidelines’ language and the Commission’s intent compel this interpretation. “Forcible sex offenses,” like other listed offenses — e.g., statutory rape, sexual abuse of a minor, extortionate extension of credit, and burglary of a dwelling — automatically qualify as “crimes of violence,” regardless of whether force is an essential element. See United States v. Pereira-Salmeron,
The Sentencing Commission selected certain offenses that deserve treatment as crimes of violence per se, probably because the selected crimes inherently pose an implicit “threatened use of force.” Pereirar-Salmeron,
In addition to the Guidelines’ language and the Commission’s intent, a fundamental rule of statutory construction supports interpreting “forcible sex offenses” to encompass all sex acts taken against a victim’s will. Specifically, courts should not interpret one provision in a way that renders another part of the same statute superfluous. United States v. Fish,
In Remoi, the court concluded that a defendant’s prior New Jersey conviction for penetration against a physically helpless, mentally defective, or mentally incapacitated victim constituted a “forcible sex offense,” and thus a “crime of violence.” Id. at 794. The court explained that the Commission “did not mean to limit ‘forcible sex offenses’ to those involving the application of direct physical force, as opposed to some other type of compulsion,”
We may find under this post-Boofcer/Fanfan advisory Guidelines regime that district judges can nonetheless dispense justice in fashioning an appropriate sentence for recidivist offenders like Beltran-Munguia. If so, then the mental gymnastics of the panel’s opinion here, though an interesting academic discussion, does no real harm to sentencing discretion. Nevertheless, there is confusion in our case law, and I urge our court to revisit any precedent that precludes us from classifying nonconsensual sex as a “crime of violence” under section 2L1.2(b)(l)(A)(ii). We should join the Third Circuit and define “forcible sex offenses” to include any sexual act committed against the victim’s will or consent. See Remoi,
. In 2001, the Commission amended section 2L1.2 by defining “crime of violence” with the parenthetical "(including sexual abuse of a child)” after “forcible sex offenses.” Asber-ry,
Concurrence Opinion
concurring.
If we were writing on a clean slate, I would hold that non-consensual penetration falls within the plain meaning of “physical force.” See United States v. Ivory,