United States v. Jose Sarmiento-Funes

concerning a fact judicial issue existed estoppel determination debtors’ obviates wrongful 17(a) intent was thus incorrect. the need to address Superior’s Rule arguments renders and moot the trustee’s requisite The Hudspeaths had moti claim to plaintiff substitute as for the debt- they vation to conceal the claim as would ors. The case must be remanded with certainly reap they a windfall had been instructions to dismiss the Hudspeaths’ able' to recover on the undisclosed claim claim. without having disclosed to the credi permit tors. Such a result would debtors REVERSED and REMANDED WITH “[cjonceal claims; to get their rid of INSTRUCTIONS. cheap, creditors on the

[their] start rights.”

over with a Payless bundle of Distrib.,

Wholesale v. Inc. Alberto Culver

(P.R.) Inc., (1st Cir.

1993). Accordingly, the Hudspeaths can date, permitted, at this late to re

open bankruptcy proceeding petition. amend their estoppel Judicial UNITED America, STATES designed prevent was to such abuses. See Plaintiff-Appellee, Inc., Aeroplex, Burnes v. Pemco (11th Cir.2002) 1282, 1288 (“Allowing [the v. back-up; re-open bankrupt debtor] SARMIENTO-FUNES, Jose case,

cy and amend bankruptcy filings, his Defendant-Appellant. only after his omission has chal been No. 03-40741. lenged by adversary, suggests that a debtor should disclosing personal consider United Appeals States Court of only assets if he- caught concealing , Fifth Circuit. them.”)

June 2004. IV.' CONCLUSION reasons,

For the foregoing we reverse

the decision of the district court and con- judicial

clude that estoppel per- bars the

sonal injury suit as a matter of law. The claim, duty he had an affirmative monetary inves no value. Id. at 1296. The Elev- tigate viability Thus, discharging its before it. rejected enth Circuit bankruptcy court's view, in the asset, scheduling court’s district here, reasoning, relied on the district court more, without would not have altered diligence the trustee's lack pursuing I, Superior the outcome. See 2003 WL the claim dishonesty. "excused the debtor's

133228, at reasoning *6. The district court's Rather¡ the court found the "foremost misses the mark. The district court draws its responsibility Barger in this matter was for (Bankr. logic Barger, from re In 279 B.R. 900 fully satisfy disclose her assets. She did not N.D.Ga.2002), which after the district court Instead, duty. her she to the dissembled trus- here, overturned, ruled part, in relevant tee and indicated her discrimination claim Barger City the Eleventh Circuit in such, monetary had no value. As the trustee Cartersville, Ga., 348 F.3d 1289 Cir. hardly can be faulted for not further investi- 2003). Barger, wrongly the debtor in gating Barger’s discrimination suit." trustee, formed during the creditors’ present case is no different. meeting, that her discrimination lawsuit had Laredo, TX, (argued), Neurock

Mitchel Turner, Atty., Hous- Lee Asst. U.S. James ton, TX, for-Plaintiff-Appellee. E; Dahlin, II, Federal Public Roland Defender, (argued), Bearse Aurora Ruth Paul, Houston, TX, for Defendanb- S. John Appellant. KING, Judge, and Chief

Before GARZA, and EMILIO M. REAVLEY n Judges. Circuit KING, Chief'Judge: illegally guilty pleaded The defendant having been country after reentering the chal- principally he appeal, On deported. of a sixteen-lével imposition lenges the under U.S.S.G. enhancement sentence but the conviction affirm We 2-L1.2. for resen- and remand the sentence vacate tencing.

I. BACKGROUND appeals, Sarmiento-Funes challenging primarily the sentence enhancement but Defendant-Appellant Jose Sarmiento- constitutionality also the of part of the Funes, Honduras, a citizen of was indicted illegal-reentry statute. January violating 2003 for 8 U.S.C. by unlawfully reentering the Unit- II. ANALYSIS having ed States after been removed fol- A. Sentence Enhancement lowing aggravated felony conviction. Sentencing Guidelines, The 2002 pleaded guilty. Sarmiento-Funes The for- the version in effect at the time of sentenc ty-eight-month imposed by the sentence ing, provide that the term “crime of vio May district court in 2003 included a six- lence”: teen-level enhancement on a previ- based (I) federal, means an offense under ous conviction for a “crime violence” state, or local law as an .has within the of U.S.S.G. use, use, element the attempted n.l(B)(ii) (2002). physical threatened use of force prior The generated conviction that another; against person and sentence enhancement was a 2002 Mis (II) murder,' includes manslaughter, assault,” souri conviction for “sexual kidnapping, assault, aggravated the state statutes define “A as follows: forcible offenses (including commits crime of sexual assault minor), robbery, abuse of if he has sexual intercourse with another arson, extortion, extortionate ex- person knowing that he does so without credit, tension of burglary of a that person’s consent.” Mo. Ann. Stat. dwelling. 566.040(1) (West 1999).1 Sarmiento- n.l(B)(ii) U.S.S.G. 2L1.2 cmt. objected enhancement, point

Funes to the An offense can be a “crime of violence” ing out that Missouri has a different stat either because it has as an element the use ute, 566.030, that outlaws “forcible (I) paragraph force under or because it under, rape.” The sexual assault statute fits within the enumerated in para- list convicted, which he was Sarmiento-Funes (II). Rayo-Valdez, United States v. graph court, urged the district does not require (5th 314, Cir.2002). 302 F.3d 316-19 use force. The district court over district court enhanced the defendant’s objection, ruled concluding (I). sentence based on paragraph We re- . by § offense defined 566.040 has as an view the district interpretation court’s force, namely element the use of the Sentencing Guidelines de novo any penetration. inherent in sexual findings- of fact for clear error. United Cir.2003), 1. The record in this includes a state reh’g granted, case vacated & 362 F.3d information, (5th court criminal but the Cir.2004). Further, informa although only language tion tracks the of the statute. (PSR) Investigation Report con- Presentence accordingly This case not involve the possibly gleaned tains some additional details question sentencing of the extent to which the police report (although from a prove- their charging papers court can use to narrow unclear) nance is that information cannot be down broad statute in order to determine determining used in whether Sarmiento- precisely more of the nature conduct of Funes committed "crime of violence.” See See, which the e.g., defendant was convicted. Turner, United States v. 836-37 States, Taylor v. 575, 602, United 495 U.S. (5th Cir.2003); Allen, United States v. (1990); S.Ct. 109 L.Ed.2d 607 United (5th Cir.2002). F.3d 342-43 Calderon-Pena, (5th States v. 339 F.3d 320 Ocana, the existence of the two different statutes States .2000). determinative, government agrees and the Cir with the district court’s conclusion that the as an element 1. Use offorce sexual assault offense involves the “use of observing that Sar begin by We purposes force” for of the Guidelines re- that the Missouri is correct miento-Funes gardless of whether the offense involves require sexual assault statute does violence, physical compul- overt does a tradition the same sense as sion, or threats. statute. That the sexu al forcible The Missouri sexual assault statute re al assault statute does quires perpetrator engage sex violence, coercion, or threats ac intercourse, “any ual pen which means Instead, company the sex act. the sexual etration, slight.” however Id. assault, it an offense for a statute makes 566.010(4). government § The has at intercourse with person “ha[ve] points suggested that the statute involves person knowing that he does so another merely by the of force virtue of the use Mo. Ann. person’s that consent.” without penetration. force inherent in the act of 566.040(1). § crime is a The Class C Stat. principal support Its for this contention is statutory that a of felony carries maximum Yanez-Saucedo, United States v. years, including imprisonment both seven (9th Cir.2002). That case did not in conditional release. Id. volve the “crime definition at violence” 566.040(2). 558.011(1), § § As noted issue here but considered whether instead above, a different Missouri statute outlaws Washington a certain sex offense counted “the rape accomplished that is with use the 566.030(1).2 “rape” meaning as within of 8 U.S.C. § compulsion.” forcible 1101(a)(43)(A). § The Ninth Circuit held statutory The maximum sentence for forc any “rape” require that the term did not life rape impris ible under Missouri law is 566.030(2). beyond in act of course, that inherent the onment. Id. Of that penetration. Id. at 996.3 The court there rape has a forcible statute that Missouri that the statute although fore held state evidently describes a “crime of violence” compulsion, not the did necessarily does not mean that Missouri’s could con relatively aggravated prior less sexual' assault defendant’s offense still be the force inherent rape therefore lacks the use of force as sidered because of statute penetration. an element. The district court did not find in Id. at 995-96.4 1101(a)(43)(A), compulsion “[plhysi meaning 2. Forcible is defined as within the provision at issue A cal force that overcomes reasonable resis same in Yanez-Saucedo. tance; threat, implied, holding express or ... or that the sixteen-level "use of force” [a] person improper places that reasonable fear of was does not mean .enhancement death, physical injury kidnapping eight-level "rape” serious or that enhancement person person....” of such or another Mo. unavailable. See note 13. infra 556.061(12) (West1999). Stat. Ann. government 4.The reads a certain Missouri Niederstadt, case, appeal interpreting 66 S.W.3d In this we are not State v. 3. (Mo.2002), demonstrating meaning "rape” that' Mis of the term as it is used in 8 1101(a)(43)(A), recognize penetration souri courts that is it and so Yanez-Sauce defendant, directly type his point. of force. The for do is not on self case, remand, might highly part, State v. "rape” relevant on cites a different Missouri (Mo.Ct. 2L1.2(b)(1)(C), Dighera, 617 S.W.2d 533 n. 8 however: Under Sarmiento- distinguishes eligible eight-level App.1981), between Funes would be for an that implies prior that Missouri sentence enhancement if his and sexual assault offense felony” "rape” "aggravated law does not consider sexual assault "force- constituted victim, very pen act of knows is without the consent of the It is true (like government less serious and intimate crucial consideration. The etration contact) penetration that if bodily argues involves “force” does itself forms- engineering entail the use of then it becomes physics sense. See F.3d forceful' it occurs Ashcroft, Flores v. when without consent Cir.2003) (even practically every though bodily (noting contact itself is the sense). case). again same in crime involves “force” this either Here we find Nonetheless, open provides it is not to us to hold that our recent Houston decision penetration per guidance. se the force substantial Houston held statutory rape, to the of force” to which the amounts “use Tex. Penal Code Ann. (Vernon Indeed, 22.011(a)(2) 2003), Sentencing refer. a re does not Guidelines rejects that cent decision of this court have as element the use of United, against States v. of another. 364 precise proposition. See (5th Cir.2004) Houston, Significantly at present pur- F.3d 246. crime did not (holding poses, panel that a certain sex the Houston reasoned that despite statutory rape of force” the fact offense involve “use involve charged with the use of force pro- defendant because the statute “causing] organ to contact and his scribes “consensual” sexual conduct. sex, Houston, organ penetrate according the female sex' of Consensual [the victim]”);5 force, v. accord United States Mead does not involve the use of even (1st er, 876, Cir.1997); though happens illegal. 118 F.3d 881-82 the sex to be (both Shannon, holding holding 110 F.3d at 384-85 Houston’s that consensual sex not statutory rape offenses did involve does not involve the use of force does not 4B1.2); compel proposition the use of force under U.S.S.G. that nonconsensual a, 100 Velazquez-Over United States v. intercourse does involve the use of cf. (5th Cir.1996) 418, (stating that F.3d 420 but such a result would not be inconsistent an “physical reasoning. force is not element of the with Houston’s child). crime” of sexual contact with a In applying Houston to the case at Therefore, we cannot conclude that the act hand, we observe that Houston’s state- enough of penetration supply itself is statutory ment that rape is consensual is required the force under cmt. counter-intuitive, in one sense for it is n.1(B)(ii)(I). statutory rape often said that is considered course, the statute not rape precisely Of Missouri does because the minor victim of law, penetration, criminalize mere but instead the crime as a of matter deemed perpetrator penetration incapable giving outlaws of consent. See Turner v. Cir.1996); 590-92, ’Although Taylor, we ful.” look state law for 495 U.S. at 110 cf. offense, elements state law does not (explaining “burgla- S.Ct. 2143 that the term govern question the crucial here: whether the ry” as it is used in a sentence-enhancement inherently Missouri sexual crime assault in- uniform, meaning, statute has a nationwide question volves -the use of force. That de- .regardless of how individual states label of- pends phrase on of the “use fenses). Guidelines, physical Sentencing force” in the question federal law that does turn on interpreting 5. Houston was U.S.S.G. particular pen- Missouri’s view of whether 4B1.2(a)(1), provision that em Guidelines inherently etration involves force. See United language ploys "use of force” identical to that Shannon, 382, 385, States v. 386 employed § 2L1.2 in U.S.S.G. (7th Cir.1997) (en banc); United States v. Vas- n.1(B)(ii)(I). 648, quez-Balandran, 76 F.3d 649-50 State, 77, 642, Although the Missouri 246 S.W.2d assault 157 Tex.Crim. State, v. Duby (1952); 735 S.W.2d speaks-of statute intercourse “without con d) 1987, pet. ref (Tex.App.-Texarkana sent,” the' state statutes distin explicitly (“A age of seventeen is person under “consent,” guish pro “assent” and between to inter incapable giving consent legally viding that “assent” sometimes does not Torcia, also 3 Chaeles course.”); E. see count as “consent.”6 The Missouri sexual 68-69 Criminal Law at Whaeton’s statute assault therefore reaches inter (15th ed.1995) (citing cases from various assents, though' course to which the victim State, v. jurisdictions). But Garcia cf. legal nullity, assent is a such as when (Tex.Crim.App.1983) S.W.2d product deception judg is the or a (“Children (McCormick, J., un concurring) impaired by ment intoxication. But under by the presumed seventeen are not der Houston, above, the rule of described ille consent, their con incapable to be law consent-in-fact, gal intercourse with i.e. as irrelevant.”). Hous simply sent What sent, not involve the use of force.7 ton’s statements consent must regarding all) (though some Since methods of that the sex at issue be taken to mean is violating the Missouri statute not re do statutory be consensual physical against the use of quire fact, disregards even if the law matter of victim, have, the statute therefore does not the victim’s decision. or countermands element, as an use of .force Houston, emerges from The rule another. See United against therefore, in intercourse does not Vargas-Duran, States accompa use of force when it is volve the (5th Cir.2004) (en banc).8 nied consent-in-fact. 556.061(5) 556.061(5) ly disagree, explic- of the Missouri Code inasmuch as

6. Section provides: itly contemplates that the victim can manifest “assent,” consent-in-fact, ex- : i.e. or lack of consent be [CJonsent without implied. pressed or Assent does not consti- qualifying legal consent. manifestation ..as Moreover, tute consent if: persuasive we do not find dis- (a) given by person It is a who lacks the by approach to de- sent’s intercourse induced capacity mental to authorize the conduct explicitly ception, the statute also con- charged to constitute the offense and such templates. deception The victim of manifests incapacity known to mental is manifest or consent-in-fact, though legally it vitiated. is actor; or Houston, that, pen- We do not believe under (b) given by by It is who defect, reason of that occurs such a circum- etration under youth, mental disease or or intoxi- physical stance involves the use of cation, manifestly by is unable or known against the victim. a reasonable the actor to be unable to make judgment as to the or harmfulness of nature dis- our decision relies on Houston’s 8.Since charged the conduct to constitute the of- consent-in-fact and consent- tinction between fense; or in-law, open question we whether leave (c) decep- duress or It is induced accompanied extrinsic intercourse not tion[.] could be said to force or threats nonetheless This list of situations in which assent does not pur- Guidelines involve the "use of force” for equal in consent does not include the scenario poses there is no factual assent to tb,e when incapacitates perpetrator vic- which the tim, possible that there could by drugging sex act. That such as victim- without knowledge. purposes would un- her Such conduct fall be "use of force” Guidelines ^ even, rape See Mo. der Missouri’s forcible statute. there is no "force” as that term when 566.030(1). normally understood in connection with forc- Stat. Ann. rape laws. ible argues 7. The dissent that the Missouri offense involves the use of force because the victim is give respectful- unable to consent-in-fact. We bodily injury. in support finds the Sixth this Our conclusion view with, earlier, States v. Ar- begin decision United To as we observed Circuit’s Cir.1995). There, nold, 58 F.3d 1117 Missouri offense reaches some assented-to whether Tennessee question was certainly gross sex.9 The offense is and intent to com- for assault with conviction outrageous any affront to the victim in “use, battery at- mit sexual involved say case. But to that the Missouri statute use, physical or threatened use of tempted bodily injury, way per se involves while § 4B1.2. The court force” under U.S.S.G. amplifying one’s condemnation of the could, accord- battery that sexual observed crime, beyond reaches the normal under law, in a accomplished ing to Tennessee standing “bodily injury.” of the term This namely disparate ways, number previously court has considered the Texas (1) coercion, of force or through: the use crime of sexual contact with a child—an (2) deficiency physical or inca- the mental likely offense that affects the victim as (3) victim, of the or fraud. Id. at pacity seriously as does the crime at issue here— concluded that while 1121-22. The court yet we have said that sexual for Guidelines purposes the “use of force” contact not amount to the use violating involved in some methods Velazquez-Overa, force. See statute, required force was not all F.3d at 420. sex offenses do include Some cases; pointed court particular, (as bodily injury an element of that term is violating a manner the statute fraud as understood), normally e.g., La.Rev.Stat. that “would not an element of force involve (West 1997) (aggravated 14:43.2 Ann. at attempted or threatened force.” Id. battery); Tex. Code Ann. Penal Wayne 1122; LaFave, see also R. Sub- (Vernon 2003) 22.021(a)(2)(A)(i) (aggra (2d 17.1(a), at 605 stantive CRIMINALLaw assault), vated sexual but this Missouri ed.2003) (referring to fraud as “alterna- statute does not. context). in the De- tive[ ]” ception one of the methods of is likewise 2. “Forcible sex offenses” under Missouri committing sexual assault Mo, law, 556.061(5)(e), see Ann. Stat. Although the district court en agree accomplished we that a sex offense hanced the defendant’s sentence under in of this manner does not involve the “use (I) § paragraph of 2L1.2’s “crime of vio meaning of the applicable force” within the definition, government urges lence” the Sentencing Guidelines. that can affirm the we also enhancement on the that alternative basis the defen argument

In its final that the Missouri force, prior dant’s gov- use of the or not requires offense the conviction—whether (I)’s paragraph general satisfies defini ernment that unconsented-to sex contends bodily injury. specifically is a form of While we tion—is offense enumerated itself (II), sympathetic gov- paragraph namely are to the sentiment the in a “forcible sex expressing, adopt ernment we cannot offense.” is Act, 924(e)(2)(B)(ii) distinguishes present §

9.' the case reer Criminal 18 U.S.C. This factor Brown, (7th Cir.2001). from United States v. the Seventh Cir- See 273 F.3d government conclusion, cuit case on which the relies in reaching the court ob- In that arguing that the Missouri statute involves that, served addition to the risk of collater- in injury. Brown held that "forced injuries, compelled sex act could itself al the strangers 'conduct nonconsensual sex with injury.” type "physical be considered of presents potential physi- a serious risk of at 750-51. " injury cal to another' under the Armed Ca- necessarily that do not provide able to us crimes”—crimes side has been Neither meaning on the of guidance require compulsion threats or forcible in with definitive is used offense” as that term “forcible sex that those brute sense—states crimes Sentencing Guidelines §in 2L1.2. The “are crimes of violence.” U.S.S.G. 2A3.1 commentary do not define the their (2003).10 and At bkgrd. the time that this that certain parties agree The term. particular promulgated, Guideline was over in tradi- crimes, forcible such as years ago, only fifteen there was one defi sense, count as “forcible sex clearly tional nition “crime of violence” in Guide offenses,” that certain they agree also lines, namely provided the definition involving wholly consensual other crimes commentary § 4B1.2. The (such adultery) sex are “forcible as 4B1.2, turn, states its definition particular The crime at offenses.” issue encompasses, among of “crime of violence” 566.040, here, falls some- Mo. Ann. Stat. many things, other “forcible sex offenses.” agreed in the middle of those two where Therefore, according government, to the points, parties At certain extremes. this series of cross-references tells us that is a whether the offense question treat the require compul a crime does not corollary as a to the “forcible sex offense” sion for it to be a “forcible sex offense.” earlier, question addressed i.e. whether government’s argument The on this has as an element the use prior offense (I): logically faulty. propo score is From the If the paragraph purposes (1) that certain “sexual offense does not involve the sitions abuse sexual assault crimes’’-, (2) violence,” force, then it is not a “forcible sex are “crimes of use of offense”; if it does the use of “forcible sex offenses” are also . sex offense.” violence,” then it is a “forcible it does not follow that “crimes however, also, a few

They argu- marshal specified “sexual abuse crimes” are at a independently arrive ments would offenses.” It is also notable “forcible sex phrase. definition for the of “crime of violence” the definition § 4B1.2 on the 1987 version of relied government’s primary argument re: in turn defines U.S.C. “crime which sex of- garding “forcible either a crime that has as violence” as that term is used in fense” as of force or a crime that an element the use in a different that the same is used phrase risk that poses its nature substantial in a context in Guidelines section Therefore, used., “sexual be (says government) apparent it is §in crimes” 2A3.1 could abuse discussed compulsion required. is not that forcible qualify as “crimes of violence” under 18 out government points particular, long they involved a 16 as commentary to the Guidelines sec- that the that force would used.11 “sexual abuse substantial risk applicable tion to certain 2242(2) (2000). U.S.C. covered this Guide- 18 10. One of the crimes 2242, U.S.C. which can section is 18 lines Indeed, that a number of cases have held 11. violated, alia, by: be inter satisfy 18 16’s offenses sex .various per- engaging] a act another in sexual with they because involve precisely definition person is— son if that other used, if substantial that force will even risk (A) incapable appraising of the nature of (the necessary require they use of do not conduct; or See, Velazquez-Overa, e.g., 100 as an element. (B) declining partic- physically incapable of 420-22. F.3d at in, communicating ipation or unwill- in, since has been ’amended ingness engage that sexual Section' 4B1.2 1987, any way helps gov- that but not in act.... tion, Sentencing has de- provisions therefore Commission of related This web offenses, listing each logical coupled sepa- inference the the two support rately. See U.S.S.G. suggests. government n.l(B)(iii) (2003). change This was intend- have dis- appellate cases Relatively few “make[j clear” that offenses like ed of sex of- “forcible cussed qualify sexual abuse of a minor as crimes purposes. Almost fenses” for Guidelines they in- regardless of violence of whether it, that do discuss do so all of those of force. app. volve the use See U.S.S.G. enumerated crime connection with another (2003). C, 658, amend. at 401-02 None of violence, minor.” abuse of a “sexual offense” this tells us what “forcible sex - connection that the reason for the is, however, except perhaps that “sexual § 2L1.2’s “crime of vio- 2001 version of might abuse a minor” otherwise offenses, lence” definition links these two qualify as one. ... violence in- stating “crime[s] that an (including ... sex offenses the absence of authoritative defini ] forcible clude[ minor).” offense,” in- tion of sex we abuse of a Statutes “forcible believe sexual typically reading do not the most natural of the volving child sexual abuse threats, merely phrase suggests type of crime that require improp- violence or argue range pro contact. One could therefore narrower than the of conduct er offenses,” “in- particular, hibited under 566.040. In it “forcible crimes, adjective clude” such do not seems that the central likewise “forcible” ly species force. one could also rec- of force that either Equally, violent denotes by contending approximates concept com oncile the two offenses or, least, qualifies pulsion a minor” as a at does not “sexual abuse of embrace some only when it is “forcible.” of assented-to-but-not-consented-to crime violence court, others, rejected like has conduct at issue here. See Black's This Law DiCtionary “[sjexual (7th ed.1999) reasoning that argument, (defining latter or not—consti- “forcible” as force or threat “[e]ffected abuse of a minor—forcible resistance”). Rayo-Valdez, against opposition tutes a crime of violence.” of force 316; decades, recognize at also States v. that in the last few see United We Pereira-Salmeron, jurisdictions 1152 a number have modernized ' (9th Cir.2003) (or judi (explaining and liberalized their laws them), of a minor is a crime' of violence cial constructions of in a few cases abuse regardless eliminating of “whether includes—or requirement. even M.T.S., explicitly E.g., even excludes—‘force’ as ele- State ex rel. 129 N.J. ment”). significant That courts take the view that A.2d 1276-77 A states, Missouri, essentially sup sexual abuse of a minor is sui number of like have generis plemented requiring does not’need be otherwise statutes indeed, threats, or compulsion separate “forcible.” And ver- with sexu defini- al sion of 2L1.2’s “crime violence” assault statutes that criminalize certain argument. present.a injury, though they ernment's The section now de risk of even do See, fines “crime of violence" to mean an offense e.g., not involve the use of force. United force as an Kirk, that has the use of element or an States v. F.3d Cir. potential poses a serious risk of offense 1997) (holding that sexual contact with a . 4B1.2(a) injury § See U.S.S.G. child did not involve the use of force but did frequently Courts hold certain carry potential physical inju a serious risk of under sex offenses are “crimes of violence” ry). (cid:127) this Guidelines because the crimes section

345 unconsented-to) (or by § criminalized 566.040 can conduct be legally unconsented-to not involve extrinsic that does considered “forcible offense.” intercourse See, e.g., Therefore,' Fla. Stat. Ann. force. affirm we cannot the defen- (West 2000 & 794.011(5) Supp.2003); § dant’s sentence on this alternative basis. (McKinney § 130.20 N.Y. Penal Law remand, government On the is free to 940.225(3) (West 2004); § Ann. Wisc. Stat. eight-level “aggravated pursue felony” minds, our these Supp.2003). & To 1996 express sentence enhancement. no We- specifically one underscore that when facts opinion regarding whether that enhance a “forcible” sex a sex offense.as designates ment would’be proper.13 offense, so in order to probably one subject as one sex offense distinguish Constitutionality B. 8 U.S.C. force force or threatened that does 1326(b) § Thus, penetration.12 to extrinsic ’ 1326(a) makes it a 8 U.S.C. para in “forcible sex offense” used phrase crime, years’ im punishable up two n.1(B)(ii) (II) may §of 2L1.2 cmt. graph prisonment, for an alien to reenter encompasses art that be a term of well country permission having without after para than does range of conduct narrower removed; previously been Section (O’s referring to general definition graph 1326(b)(l)-(2) provides that aliens whose use, an element the crimes that “ha[ve] prior removal followed a conviction of cer- use, physi use of attempted or threatened tain crimes for imprisoned sub- of another.” against cal In Almendarez- stantially longer terms. event, regard supra See any note 8. States, of the Torres United Supreme precise less of boundaries 1326(b) held that set forth do not think that all of the Court sen- phrase, we earlier, 3, Court, See, supra e.g., Superior 13. As noted note one route to Michael M. v. 12. 8, 1200, 464, 67 L.Ed.2d eight-level "aggravated felony” U.S. 501 n. 101 S.Ct. enhance J., (1981) (Stevens, dissenting) (referring would be to show that Sarmiento-Funes ment nonforcible, rape ... and but "rape” the con had been convicted of within "forcible coerced, (em nonetheless sexual intercourse” temporary meaning term. of that See 8 Court, added)); phasis Superior Soto v. 1101(a)(43)(A) (listing "rape” as an 539, (1997) (hold 949 P.2d 543-44 Ariz. felony”); Taylor, "aggravated 495 U.S. at ing that a sexual assault is "forcible (holding S.Ct. 2143 that the term "bur victim, in addition to not assault” when the glary” statute a sentence enhancement consenting, coerced the use or threat according "gener should be understood to its C., force); In re Jessie 164 A.D.2d ened use of 731, ic, Indeed, meaning”)." contemporary (N.Y.App.Div. 565 N.Y.S.2d decision, Circuit's Ninth Yanez-Saucedo 1991) (stating stat that a sexual misconduct heavily upon by the district court relied criminalizing ute sex without valid consent government, actually involves the mean sex "proscribes both and nonforcible t ing "rape” contex Philbrick, intercourse”); State v. 402 A.2d ual 1101(a)(43)(A). traditionally con Even as (Me. 1979) (holding quali a crime , recognized rape: certain the law of ceived when it in fies as "forcible sex offense” required. was not which-actual cases in fact”). These authorities are volves "force in Therefore, holding today regarding the our -just and other in like dictionaries relevant— language in U.S.S.G. "use of force” they provide terpretive aids—because evi n.l(B)(ii) necessarily does not mean that speakers use the term typically dence of how "rape" commit Sarmiento-Funes did not interpreting. We claim that we are do not 110l(a)(43)(A). It is for the purposes of always sex offense” is used in this "forcible court resolve in the first instance district usage way, that the but we believe reflected eight-level prop enhancement is whether an the central the above citations illustrates er. meaning of the term. (5th Cir.2004), separate that “intercourse does not rather than of factors tenting it- accom- involve the use of force when is fenses, that the statute was constitu However, 224, 235, 247, panied by consent-in-fact.” I do U.S. tional. See 523 accept majority opinion’s holding not 1219, 140 L.Ed.2d S.Ct. the Missouri sexual assault statute objection that was raised Raising require the use of force. does not below, contends Sarmiento-Funes majority opinion’s holding is based 1326(b) unconstitutional, on its that a can upon its conclusion defendant light Apprendi applied, face as convicted under the Missouri sexual as- 120 S.Ct. Jersey, New 530 U.S. the victim sault statute eases where (2000), in which the 147 L.Ed.2d conclusion, gave consent-in-fact. This facts that in- Supreme Court held Houston, necessarily based on assumes beyond statutory crease a sentence that a the Missouri victim under sexual general matter be maximum must as. give assault can statute consent-in-fact. jury. explicitly Apprendi found But Houston turned on the fact that an under- overruling Almendarez- refrained from age statutory rape capable victim of Torres, consistently and this circuit has giving consent-in-fact to the inter- sexual rejected position, stat- Sarmiento-Funes’s contrast, below, explained course. Supreme for the Court to ing that victim under the Missouri sexual assault See, e.g., Almendarez-Torres. overrule is, by statute definition and as a matter of Dabeit, United States v. law, give unable to consent-in-fact to sexu- (5th Cir.2000). concedes Sarmiento-Funes al intercourse. See Mo. Ann. Stat. prec- foreclosed circuit that the issue is 556.061(5) (West 1999). Therefore, sex- edent, solely the issue presents and he ual assault under the Missouri in- statute preserve possible it for further review.

volves the use of force and is a crime of violence. III.' CONCLUSION statutory rape Houston holds that a vic- reasons, foregoing

For the defen- give tim can consent-in-fact to sexual inter- is AFFIRMED and his dant’s conviction though give course even the victim cannot The case is RE- sentence is VACATED. consent, and, result, legal aas that statuto- to the district court for resen- MANDED ry rape is not a crime of violence. See tencing.

Houston, 364 F.3d at 247. Houston distin- GARZA, Judge, EMILIO M. Circuit guished legal consent and con- between dissenting: upon assumption sent-in-fact based consciously the victim was able to I conclude that the Missouri sexual as engage decide whether or not to in sexual statute, for punishes sault defendant, intercourse with the and that having “sexual intercourse with another the intercourse would be consensual were person knowing that he does so without age. it not for her id. at See 247-48. consent,” person’s Mo. Ann Stat. only accompanies That consent-in-fact 566.040(1) (West 1999), is a crime of intercourse those situations under 2L1.2 cmt. violence U.S.S.G. the parties where were able to decide for n.1(B)(ii) (2002), because it has as an ele they themselves whether or wished to I accept, pur ment the use of force: participate. poses opinion, majority opin of this rule, However, upon the rationale in under the Missouri sexual ion’s based as- Houston, cannot consent- give United States v. 364 F.3d 243 sault statute a victim definition, because, by victim in-fact SERVICE, INC., HEALTH in TRI-STATE participate to to decide whether

unable Doing Eden In Missouri assent Business Gardens intercourse. the sexual Petitioner-Cross-Respondent, Home, legal Nursing is not consent intercourse to sexual (or it the defendant knew where situations v manifest) that the victim “lacked . capacity to authorize” mental sexual specified of certain intercourse or because NATIONAL LABOR RELATIONS a “unable to make rea- impairments was BOARD, Respondent-Cross- nature or as to the judgment sonable Petitioner. activity. Mo. of’ the sexual harmfulness 1999). (b) (West 556.061(5)(a), No. 03-60498. Ann. Stat. statutory definition the Missouri Under Appeals, United States Court consent, the victim though even Fifth Circuit. to some assent

have demonstrated intercourse, “un the victim was the sexual 21, 2004. June judgment” or to make a reasonable able to do so and capacity” “lacked the mental to the mental decision

thus did not make Furthermore,

engage intercourse.1 Id.. requires definition of consent

Missouri’s the im defendant either knew of

that the ability or cognitive in the victim’s

pairment If condition was “manifest.”

a is convicted under Missouri’s sex statute, the victim was unable

ual assault and the defendant

to consent-in-fact' givé use, a a conviction involves

knew so.2 Such Therefore, I believe that Mis

of force. conviction is a crime of

souri assault sexual for of the 16-level en purposes

violence § 2L1.2.

hancement under respectfully

I dissent.. 556.061(5)(c) deception.” example, or Mo. Ann. Stat. 1. For normal circumstances (West 1999). twenty-five year by procured old woman is able to consent means Even assent However, law, if under Missouri sex. she deception because the is not consent-in-fact judgment” is "unable to make reasonable opportu deprives the victim of the defendant intoxication, example, she unable due to nity decision whether or not to make mental intercourse. to consent-in-fact intercourse. participate in the sexual give equally unable to victim is consent-in-fact pro- of consent also 2. The Missouri definition incapacity intoxi such is caused whether legal constitute vides that assent does not retardation, cation, deception. mental duress consent when is induced "[fit

Case Details

Case Name: United States v. Jose Sarmiento-Funes

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 21, 2004

Citation: 374 F.3d 336

Docket Number: 03-40741

Court Abbreviation: 5th Cir.