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Criminal Practice – Assault On Wife Was ‘Crime of Violence’

By: Deborah Elkins//August 31, 2016

Criminal Practice – Assault On Wife Was ‘Crime of Violence’

By: Deborah Elkins//August 31, 2016

U.S. v. Alfaro (Lawyers Weekly No. 001-139-16, 20 pp.) (Traxler, J.) No. 15-4102, Aug. 29, 2016; USDC at Greenbelt, Md. (Grimm, J.) 4th Cir.

Holding: In sentencing defendant, a Salvadoran native, for illegal re-entry into the U.S., the district court did not err in determining that defendant’s prior Maryland conviction of third-degree sexual offense for sexually assaulting his estranged wife was a “crime of violence”; the 4th Circuit affirms application of a 16-level enhancement under USSG § 2L1.2(b)(1)(A) and defendant’s 46-month sentence.

Categorical Approach

To determine whether defendant’s Maryland conviction qualifies as a crime of violence under USSG § 2L1.2, we apply the familiar categorical approach and compare the elements of the prior offense to the elements of the generic federal offense. The prior conviction qualifies as a crime of violence under the categorical approach if the elements of the underlying statute are the same as or narrower than the definition of the generic offense. If the state statute criminalizes a broader scope of conduct than the sentencing guidelines crime then it is not categorically a crime of violence.

Because Md. Code Ann., Crim. Law § 3-307, the statute under which defendant previously was convicted, lists alternate sets of elements that effectively create multiple versions of the crime of third-degree sexual offense, reference to the statute alone does not identify the set of elements that applied to defendant, and we may modify the categorical approach by consulting certain “extra-statutory materials.”

Here, the state-court indictment and jury instructions in defendant’s prior case establish that he was convicted of violating § 3-307(a)(1), but they do not further narrow the offense, so we must consider the full range of conduct covered by the statutory language. Of the various offenses identified by the guidelines as crimes of violence, “forcible sex offense” is the only one arguably applicable to this case.

Plain Meaning

We turn to the plain and ordinary meaning of the guidelines’ language to determine whether a conviction under the Maryland statute, § 3-307(a)(1), qualifies as a “forcible sex offense” for purposes of USSG § 2L1.2. The language and history of § 2L1.2 make it clear that “forcible sex offense” is a broad category encompassing a wide range of statutory offenses.

Defendant argues that, because § 3-307(a)(1) can be violated with an intent to abuse rather than an intent to gratify sexual urges, his conviction does not qualify as a forcible sex offense. We disagree.

However “forcible sex offense” is defined, that definition must, at the very least, be broad enough to include rape in its scope. While there is variation in the states’ definitions of rape, not a single state includes a sexual-gratification element when defining the most serious forms of the offense. Because the intent to gratify sexual urges is simply not relevant to the most serious forms of the paradigmatic forcible sex offense, we cannot conclude that an intent to gratify sexual urges is part of the ordinary meaning of “forcible sex offense.”

We join the other circuits addressing the issue and hold that, for purposes of the re-entry guideline, a “sex offense” is an offense involving sexual conduct with another person. And as the guidelines commentary itself makes clear, a sex offense is “forcible” if it is not consensual.

The district court did not err by treating defendant’s Maryland conviction as a “forcible sex offense” under USSG § 2L1.2(b)(1)(A).

Sentence affirmed.

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