Case Information
*1 Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:
Defendant–Appellant Javier Diaz–Corado pled guilty to illegally reentering the country after having been deported and was sentenced to 51- months’ imprisonment. On appeal, he challenges the district court’s imposition of a sixteen-level sentence enhancement under United States Sentencing Guidelines Manual § 2L1.2, arguing that his previous Colorado criminal conviction for unlawful sexual contact was not a “crime of violence.” We AFFIRM.
I. Factual & Procedural Background
Javier Diaz–Corado is a Guatemalan citizen who first entered the country on a work permit in 1993. In 1999, Diaz–Corado was charged with the Colorado crimes of aggravated incest on a relative younger than ten, two counts of sexual assault of a child, and unlawful sexual contact. A warrant was issued for his arrest. In 2008, Diaz–Corado pled guilty to one count of unlawful sexual contact, in violation of Colorado Revised Statutes § 18-3-404(1)(a), and the remaining charges in the Colorado indictment were dismissed. On June 23, 2009, Diaz–Corado was deported to Guatemala.
On September 2, 2009, Diaz–Corado was apprehended by Border Patrol Agents in Brooks County, Texas. Diaz–Corado pled guilty to illegal reentry in violation of 8 U.S.C. § 1326. The presentence investigation report (“PSR”) in Diaz–Corado’s case recommended a total offense level of twenty-one. This reflected a base offense level of eight for illegal reentry, see U.S.S.G. § 2L1.2(a) (Nov. 2008), a sixteen-level increase for Diaz–Corado’s unlawful sexual contact conviction on the grounds that it was a “crime of violence,” see id. § 2L1.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility, see id. § 3E1.1(a), (b). Given Diaz–Corado’s criminal history category of II, the PSR stated that the advisory Guideline range for Diaz–Corado’s offense was forty-one to fifty-one months. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
Diaz–Corado objected to the PSR on the ground that his conviction for unlawful sexual contact was not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) because it was not a forcible sex offense and was not an offense that has as an element the use, attempted use, or threatened use of physical force. See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Diaz–Corado justified this characterization of his conviction because it could be committed without any force or compulsion. The district court overruled Diaz–Corado’s objection to the PSR. Turning to § 3553(a), the district court stated that it had considered “all of the factors in 3553(a), including the guidelines . . . and the need to prevent future criminal conduct . . . [a]nd most particularly to protect citizens.” The district court then sentenced Diaz–Corado to fifty-one months’ imprisonment. Diaz–Corado appealed.
II. Discussion
The sole basis for Diaz–Corado’s appeal is that the district court erred
when it concluded that his conviction for unlawful sexual contact was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which resulted in a sentence beyond
the correct Guidelines range. As a general matter, the reasonableness of the
sentence imposed by the district court is reviewed for an abuse of discretion.
United States v. Lopez–Velasquez
,
The Guidelines instruct that a defendant’s offense level is to be increased
by sixteen levels where he was “previously deported, or unlawfully remained in
the United States, after a conviction for a felony that is . . . a crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). For purposes of Diaz–Corado’s appeal, the relevant
Commentary defines a crime of violence as: (1) “forcible sex offenses (including
where consent to the conduct is not given or is not legally valid, such as where
consent to the conduct is involuntary, incompetent, or coerced)”; or (2) “any other
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.S.G. § 2L1.2, cmt. n.1(B)(iii). Thus, an offense qualifies as a crime
of violence if it “has physical force as an element” or “qualifies as one of the
enumerated offenses” in the Commentary.
United States v. Gomez–Gomez
, 547
F.3d 242, 244 (5th Cir. 2008) (en banc). “If the statute of conviction prohibits
behavior that is not within the plain, ordinary meaning of the enumerated
offense, the prior offense is not a ‘crime of violence.’ ”
United States v.
Olalde–Hernandez
,
In this case, Diaz–Corado pled guilty to violating Colorado Revised Statutes § 18-3-404(1)(a), which states that “[a]ny actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if . . . [t]he actor knows that the victim does not consent.” For purposes of unlawful sexual contact, “consent” is defined as “cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. . . . Submission under the influence of fear shall not constitute consent.” C OLO . R EV . S TAT . § 18- 3-401(1.5). The statute defines “sexual contact” as
the knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if the sexual contact is for the purposes of sexual arousal, gratification, or abuse.
Id. § 18-3-401(4).
Pursuant to the definition of “forcible sex offense” found in the
Commentary to § 2L1.2, we conclude that unlawful sexual contact in violation
of Colorado Revised Statute § 18-3-404(1)(a) is a forcible sex offense.
Diaz–Corado’s unlawful sexual contact conviction necessarily involved contact
with the victim whom Diaz–Corado knew did not “cooperate in act or attitude”
with that contact. As noted above, the Commentary to the Guidelines defines
a forcible sex offense as “including where
consent to the conduct is not given
or
is not legally valid.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added);
see also
United States v. Herrera
, — F.3d —,
Diaz–Corado challenges this conclusion on two related bases. First,
Diaz–Corado argues that finding his unlawful sexual contact conviction is a
forcible sex offense conflicts with the definition of that term this Court adopted,
en banc
, in
United States v. Gomez–Gomez
,
Nevertheless, Diaz–Corado argues that the amendment to the
Commentary was not intended to define “forcible sex offense,” but was intended
only
to reverse a line of cases that excluded offenses where there could be “assent
in fact but no legally valid consent” from the definition of “forcible sex offense.”
Although the notes to the amendment state that application of the amendment
overrules those cases,
see
U.S.S.G. App. C, amend. 722, this court has not read
the amendment so narrowly. Instead, this court recently concluded that the
phrase “including where consent to the conduct has not been given or is not
legally valid” supplants the previous definition of forcible sex offense to include
sex offenses where consent to the conduct is involuntary or cannot be given.
See
Herrera
,
The Tenth Circuit’s analysis in United States v. Romero–Hernandez , 505 F.3d 1082 (10th Cir. 2007), lends further support to our interpretation of the term forcible sex offense in this case. In Romero–Hernandez , the Tenth Circuit concluded that, under the pre-amendment version of the Guidelines, a violation of Colorado Revised Statutes § 18-3-404(1)(a) was a forcible sex offense for purposes of the sentence enhancement under U.S.S.G. § 2L1.2 because a sexual contact offense is “necessarily forcible when that person does not consent.” Romero–Hernandez , 505 F.3d at 1089. Crucial to this conclusion was the Romero–Hernandez court’s reasoning that, although forcible was generally defined as “ ‘[e]ffected by force or threat of force against opposition or resistance,’ ” that definition was not applicable in the context of unlawful contact with another person. Id. at 1088 (quoting Black’s Law Dictionary 674 (8th ed. 2004)). Rather, in that context, forcible contact occurs when a person “ ‘lay[s] one’s finger on another person without lawful justification.’ ” Id. (quoting Black’s Law Dictionary 674). Thus, the Romero–Hernandez court reasoned that opposition or resistance “should not be read to require active opposition or resistance [to a sex offense]” Id. “[T]he legal right to be free from interference will suffice.” Id. This portion of the court’s analysis in Romero–Hernandez is particularly persuasive because it echoes the amended Commentary’s connection between a lack of consent and forcible conduct. Accordingly, Diaz–Corado’s violation of Colorado Revised Statutes § 18-3-404(1)(a) is a forcible sex offense, and is therefore subject to the sixteen-level increase in Diaz–Corado’s base offense level as a “crime of violence.”
Aside from his challenge to the district court’s characterization of his conviction for unlawful sexual contact, Diaz–Corado does not otherwise challenge the sentence imposed by the district court. We therefore hold that the district court’s sentence did not amount to an abuse of discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s judgment.
Notes
[1] For this same reason, Diaz–Corado’s reliance on this court’s decision in
United States
v. Rosas–Pulido
,