UNITED STATES of America, Plaintiff-Appellee, v. Jorge GOMEZ-GOMEZ, Defendant-Appellant.
No. 05-41461.
United States Court of Appeals, Fifth Circuit.
July 20, 2007.
Though the space between speech and action is notoriously foggy, the speech rights here cannot be cabined by the Commission‘s citation practices, or by its use of the word “actions” instead of the word “speech.” The Commission‘s order, while doubtlessly entered in good faith effort to pursue the public interest, is concerned with the content of Judge Jenevein‘s speech, censuring his use of County resources “in order to read a prepared statement concerning the Yahoo Case and his personal feelings and criticisms about the conduct of Freidman [sic] and his clients in connection with that still-pending Case” and “in order to further discuss the Yahoo case, Friedman, and the July 28th press conference.” The Commission‘s order references “actions” for censure only because of their communicative impact, explaining that Judge Jenevein “[held] a press conference in his courtroom, while wearing his judicial robe.”
We are not persuaded that the commission would have blinked at either of these acts but for the content of Judge Jenevein‘s speech and its delivery by the judge in his courtroom in his robe and carried forward in electronic messages from the court. We find no genuine issue of material fact as to whether the censure order was directed, in part, at the content of Judge Jenevein‘s speech. Nor can we conclude that the Commission‘s censure order was simply a time, place, and manner restriction preventing a judge during court hours from drafting a press statement, holding a press conference, or drafting an email. Rather we conclude that the state interest we have described meets the test of compelling necessity.
IV
The judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part with instructions to enter judgment for the plaintiff, ordering the Texas Commission on Judicial Conduct to expunge the censure order to the extent that it reached beyond Judge Jenevein‘s use of the courtroom and his robe to send his message.
Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Asst. Federal Public Defender (argued), Philip G. Gallagher, Houston, TX, for Defendant-Appellant.
BENAVIDES, Circuit Judge:
Jorge Gomez-Gomez was convicted by a jury of illegal reentry into the United States after deportation in violation of
I. STANDARD OF REVIEW
A lower court‘s characterization of a prior conviction as a “crime of violence” is a question of law that we review de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.2005).
II. DISCUSSION
A. THE “CRIME OF VIOLENCE” ENHANCEMENT
There are two ways that the California conviction for forcible rape can qualify as a “crime of violence” under
1. Whether the offense has as an element the use, attempted use, or threatened use of force
“Where some (though not all) methods of violating a statute do not require the use, attempted use, or threatened use of physical force against the victim, ‘the statute therefore does not have, as an element, the use of physical force against the person of another.‘” United States v. Garcia, 470 F.3d 1143, 1147 (5th Cir.2006) (quoting Sarmiento-Funes, 374 F.3d at 341). “If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element implicit or explicit of the crime.” United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc). “Force” in this context requires more than mere penetration. Sarmiento-Funes, 374 F.3d at 341 (“[I]ntercourse does not involve the use of force when it is accompanied by consent-in-fact.“) (relying on and interpreting United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004)); United States v. Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir.2006) (noting that Sarmiento-Funes, supra is controlling where sexual assault can be accompanied by consent-in-fact, even where consent is legal nullity). Accordingly, state statutes will not satisfy the “element” criterion when they allow for convictions for statutory rape or rape by deception. Sarmiento-Funes, 374 F.3d at 341 n. 7. In such cases, while the victim cannot give legal consent, he or she is still capable of consent-in-fact, and thus it cannot be said that the statute includes physical force as an element of the crime.
A close look at the 1991 version of California‘s “forcible rape” statute makes plain that it was possible for a defendant
That definition allows for conviction even in cases where a defendant does not attempt or threaten physical force. Threats of “hardship” or “retribution” will suffice, both of which fall short of force or injury. “Hardship” was only included in the California rape statute for three years, from 1990 to 1993, so there is not much California case law on the precise meaning of the term, but what there is confirms that a threat of hardship is quite different than a threat of force or injury.2 For example, one could have violated the 1991 statute by threatening to reveal embarrassing secrets about his victim that the victim desperately wished to keep private. Similarly, if an employer threatened to fire a subordinate unless she complied with his demands, that would seem to fit within the statute‘s definition of duress. However, such actions, while despicable, do not require the use, attempted use, or threatened use of physical force as we have defined that term. Thus, when Gomez-Gomez was convicted of violating § 261(c) in 1991, it is not true that actual, attempted or threatened force was an element of the crime. Therefore, his conviction for forcible rape does not satisfy the element criterion of
§ 2L1.2(b)(1)(A)(ii) 3
The Supreme Court has instructed lower courts to consider the enumerated crimes in the “generic sense in which [they are] now used in the criminal codes of most States.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143; see also Santiesteban-Hernandez, 469 F.3d at 378 (noting that where enhancement provision does not define predicate offense, “we must first find its ‘generic, contemporary meaning‘“). It can, of course, prove difficult to ascertain a crime‘s “generic, contemporary meaning,” but in this case we are not writing on a blank slate. There is already substantial case law in this Circuit discussing the term “forcible sex offense,” and that precedent compels the conclusion that the California statute does not qualify.
For a crime to qualify as a forcible sex offense, all of the conduct criminalized by the statute must so qualify. United States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir.2006); accord United States v. Palomares-Candela, 104 Fed.Appx. 957, 961 (5th Cir.2004) (unpublished opinion) (“Because there are non-forcible ways to violate the Colorado statute, Candela‘s prior conviction cannot be said to constitute a forcible sex offense.“). “If [the] statute allows for convictions in circumstances that do not constitute forcible sex offenses, the crime of violence enhancement would be improper, regardless of [the defendant‘s] conduct in committing the offense.” Fernandez-Cusco, 447 F.3d at 385 (citing United States v. Alfaro, 408 F.3d 204, 209 (5th Cir.2005)). Hence, the “forcible sex offense” inquiry usually mimics the “elements” inquiry.4 The former requires us to consider ways in which the state statute could be violated without “forcible” conduct, while the latter requires us to consider ways in which the statute could be violated without the use, attempted use or threatened use of force. These are essentially the same question, particularly after Sarmiento-Funes, supra, which defined “forcible” as denoting “a species of force that either approximates the concept of forcible compulsion or, at least, does not embrace some of the assented-to-but-not-consented-to conduct at issue here.” 374 F.3d at 344 (citing
If the 1991 California statute in this case “encompasses prohibited behavior that is not within the plain, ordinary meaning” of the term “forcible sex offense” as we defined it in Sarmiento-Funes, supra, we cannot affirm Gomez-Gomez‘s sentence. See United States v. Izaguirre-Flores, 405 F.3d 270, 277 (5th Cir.2005) (per curiam). Here again the best example comes from the statute‘s inclusion of duress by threat of hardship. For the very same reasons that force was not an element of the statute, it is clear that the statute could have been violated in a way that does not fall within Sarmiento-Funes‘s, supra definition of the term “forcible.” 374 F.3d at 344. Therefore, because § 261 sweeps in circumstances that do not require “forcible” conduct, Gomez-Gomez‘s conviction under that section cannot properly be considered a “forcible sex offense” for sentencing purposes.
Our decision today is in keeping with a line of established precedent in this Circuit. See, e.g., Sarmiento-Funes, 374 F.3d 336 (5th Cir.2004) (ruling sex by intoxication or deception not “forcible” for Guidelines purposes, even where offender knows he is acting without legally valid consent of victim); United States v. Palomares-Candela, 104 Fed.Appx. 957, 961 (5th Cir.2004) (per curiam) (unpublished opinion) (ruling that sex between eighteen-year-old and someone four years younger, and sex accomplished by deceiving victim into believing he or she is offender‘s spouse, are not “forcible” for Guidelines purposes); United States v. Meraz-Enriquez, 442 F.3d 331, 333 (5th Cir.2006) (ruling that sex with person who is “incapable of giving consent because of mental deficiency or disease, ... or the effect of any alcoholic liquor, narcotic, drug or other substance ....” is not “forcible” for Guidelines purposes); United States v. Luciano-Rodriguez, 442 F.3d 320, 322 (5th Cir.2006) (ruling that sex obtained by clergyman or mental health professional who “exploits the [victim‘s] emotional dependency” is not “forcible” for Guidelines purposes). We canvassed this case law recently in United States v. Luciano-Rodriguez, and explained that what these statutes have in common is that they allow for conviction in cases where “there may be assent in fact but no legally valid consent under the statute.” 442 F.3d at 322. In such cases, the act may well be against the will of the victim (as where the victim is coerced to comply by a public official), but there is no force or threat of force, and thus it is not a “forcible sex offense” under the Guidelines. Id. The same is true here: An employer threatens to dismiss an employee unless the employee has sex with him or her, and the employee agrees to do so. That sex is “forcible” rape under the California statute before us, but because it is accomplished without force or the threat of force, it is not a forcible sex offense in this Circuit.6
The government offers three main arguments in support of the sentencing enhancement, but they are largely inconsistent with our precedent. First, the government posits that Sarmiento-Funes, supra is distinguishable because the sentencing guidelines have since changed. However, we previously rejected that argument with regard to the 2003 amendments, and there were no changes to the Guidelines between 2003 and 2004 that would impact this case. See Luciano-Rodriguez, 442 F.3d 320, 324 (noting that government‘s argument was considered and rejected) (Jolly, J., specially concurring). Second, the government asserts that the California statute does not encompass the assented-to-but-not-consented-to conduct at issue in Sarmiento-Funes, supra, which is simply inaccurate. Third and finally, the government asks us to follow the alternate reasoning of the Third Circuit in United States v. Remoi, 404 F.3d 789 (3d Cir.2005). However, this is impossible because our jurisprudence since Sarmiento-Funes, supra is inconsistent with the Third Circuit‘s holding in Remoi. See United States v. Fernandez-Cusco, 447 F.3d 382, 387-88 (5th Cir.2006) (noting that in Remoi, “the Third Circuit declined to follow Sarmiento-Funes, instead taking a broad approach that allows for crime-of-violence enhancements for forcible sex offenses even in the absence of physical force“). Clearly our Circuit and the Third Circuit have chosen different courses in this area, and thus we are not in a position to adopt the reasoning of Remoi. If the government wishes to press this particular argument, it will have to do so when this court is sitting en banc.7
At first glance, Beliew seems to be in tension with our holding, insofar as it finds that duress is “forcible,” and we do not. We reiterate, however, that our decision rests largely on the uniquely broad definition of “duress” in use in California in 1991. See supra note 2. Moreover, we note that Beliew explicitly states its own limitations in light of Sarmiento-Funes, so it may be of limited import in the instant case. Beliew at 316 (“Expansion of the term ‘forcible sex offense’ through the fiction of ‘constructive force’ is bounded by Sarmiento-Funes.“). Nevertheless, despite these plausible distinctions, we recognize the possible tension and the uncertainty that it may cause going forward. To the extent that the opinions conflict, however, we believe it is because Beliew, and not our holding, is at odds with the prior precedent of this Court. We are powerless to resolve such a conflict here, as that is the province of the en banc Court. This case may indeed present a valuable opportunity for the whole Court to reconsider our precedent in this area, but until then, we adhere to our conclusion.
B. GOMEZ-GOMEZ‘S REMAINING ARGUMENTS
Gomez-Gomez includes two additional arguments in his brief. First, he argues that the district court erred in enhancing
Finally, Gomez-Gomez challenges the constitutionality of
III. CONCLUSION
Our precedent compels the result that California‘s forcible rape statute, as it existed in 1991, does not satisfy the element criterion of
E. GRADY JOLLY, Circuit Judge, specially concurring:
I concur, but only because we must follow our precedent, which I hope we will reconsider en banc. In my view, under any common-sense standard, forcing sex against an unwilling woman would be forcible sex and therefore a crime of violence against the body of a woman. When a woman is coerced to have sex against her will because of threats that could impair or devastate her life, it is unwilling sex; if it is unwilling sex, it is not unforced sex; and if it is not unforced sex, it is forcible sex within the meaning of the Sentencing Guidelines. Yet our precedent, which we must follow, leads to nonsensical results. Here, for example, no one contests that Gomez-Gomez was convicted under a California statute of the crime of forcible rape of a woman. That statute defines rape as “an act of sexual intercourse ... [w]here 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 another.”
The unfortunate error of Sarmiento-Funes is that it imposes the elements test on “forcible sex offense,” a conclusion that frustrates the intent of the Sentencing Guidelines. The Guidelines provide two methods for determining whether the crime of conviction qualifies as a “crime of violence“: either the crime qualifies as one of the enumerated offenses, such as “forcible sex offense,” or the crime has as an element the use, attempted use, or threatened use of physical force.
Consistent with Remoi, the correct result to be reached here is found in this Court‘s recent decision in United States v. Beliew, No. 06-30400, 492 F.3d 314, 2007 WL 1932812 (5th Cir. July 5, 2007), now in conflict with Sarmiento-Funes and this case. As the majority notes, Beliew held, inter alia, that “duress” and “psychological intimidation” constitute “forcible compulsion,” see id. at *1, 316; whereas, Sarmiento-Funes and this panel have required actual physical force.
I would hope that we follow the suggestion of the majority and permit our en banc court to clear up the confusion that our precedents have created.
HASPEL & DAVIS MILLING & PLANTING COMPANY LTD., represented herein by its President, Karl M. Samuels; Poydras Minerals LLC, successor in interest of Poydras Realty Company, represented by its co-managers George B. Jurgens III & Frank A. Tessier, Billie Breuille, Arthur Q. Davis, Lawrence H. Iverson, for themselves and on behalf of all members of a state recognized class action, Plaintiffs-Appellees, v. BOARD OF LEVEE COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, Defendant-Appellant, and State of Louisiana, Movant-Appellant.
No. 07-30086.
United States Court of Appeals, Fifth Circuit.
July 23, 2007.