### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 41125

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus JUAN ALAY, Also Known as Juan Alay

- Mendez , Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Texas

Before SMITH , CLEMENT , and SOUTHWICK , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Juan Alay was convicted of illegal reentry . The dis trict court applied a crime

- of

- violence ( “ COV ” ) enhancement under the sen tenc ing g uidelines based

on Alay’s conviction of rape in California

. Alay appeals the sentence by chal

lenging the en hancement, asserting that convic tion under the California stat

ute is possible with only a negligent mens rea , while application of a COV enhancement requires a more culpable mental state , thus rendering the COV United States Court of Appeals Fifth Circuit 

### FILED March 3, 2017 Lyle W. Cayce Clerk Case: 15-41125 Document: 00513897062 Page: 1 Date Filed: 03/03/2017No. 15

- 41125

2 en hancement impermis si ble under the categorical approach in Mathis v. Uni ted States , 136 S. Ct. 2243 (2016)

. We affirm.
I. Alay pleaded guilty of illegal reentry in violation of 8 U.S.C. § 1326. The presentence report ( “ PSR ” ) recommended a 16

- level enhancement

. Alay had been deported for a conviction of rape under California Penal Code § 261(a)(3)

. 1 T he probation officer deemed th at to be a COV under U.S. Sentencing Guide

lines (“ U.S.S.G. ”) § 2L1.2(b)(1)(A)(ii) and recommended the enhancement , be

cause a per son convicted of illegal reentry faces a 16

- level enhance ment if the crime for which he was deported was a COV. The g uidelines define a COV to be murder, manslaughter, kidnapping, aggravated assault, forcible sex of

fenses . . . , statutory rape, sexual abuse of a minor, robbery, arson, ex tortion, extortionate extension of credit, burg lary of a dwelling, or 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. Id. cmt. n.1(B)(iii). Further, the g uidelines define “forcible sex offense[]” as an offens e “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.” Id. Section 261(a)(3) defines rape as “an act of s exual intercourse ac com plished with a person not the spouse of the perpetrator . . . [w]here a per son is prevented from resisting by intoxicating or anesthetic substance . . . and this condition was known, or reasonably should have been know n , by the ac cused.” Alay objected to the enhancement, stating that a conviction under Section 261(a)(3) d oes not qualify as a COV because it c an be committed with a

1 Neither party contests that Alay’s previous conviction was under this specific portion of the California Penal Code. Case: 15-41125 Document: 00513897062 Page: 2 Date Filed: 03/03/2017No. 15

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3 negligent belief that the victim could resist, making it broader than the defi ni

tion of “forcible se x offense” with in the notes to U.S.S.G. § 2L1.2. At sen tenc

ing, Alay repeated the objection, for substantially the same reasons. The dis

trict court overruled the objection and sentenced him to 41 months, a within

g uidelines sentence. Without the COV enhancement, the g uideline range would have been 15

– 21 months.
II. Because Alay objected to the COV enhancement both when it first ap

peared in the PSR and at sentencing, he has preserved the objection, and we review his sentence de novo

. United States v. Hernandez

- Rodriguez , 788 F.3d 193, 195 (5th Cir. 2015). In addition, “[w]e review the district court’s charac

terization of a prior offense as a [COV] de novo .” United States v. Flores

- Gallo , 625 F.3d 819, 821 (5th Cir. 2010) (per curiam).
W e take a “c ategorical” approach in “deter mining whether a prior convic

tion qualifies as a [COV] under the Guidelines.” United States v. Rodriguez , 711 F.3d 541, 549 (5th Cir. 2013) (en banc). “Under the categorical approach, the analysis is grounded in the elemen ts of the stat ute of conviction rather than a defendant’s specific conduct.” Id. [O] ur application of [the] categorical approach to a prior state conviction proceeds in the following four steps: First, we identify the undefined offense category that t riggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable com

mentary. If not, we proceed to step two, and determine whether that und efined offense category is an offense category defined at com mon law, or an offense category that is not defined at common law. Third, if the offense category is a non

- common - law offense category, then we derive its “generic, contemporary meaning” from i ts common usage as stated in legal and other well

- accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enum erated Case: 15-41125 Document: 00513897062 Page: 3 Date Filed: 03/03/2017No. 15

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4 offense category. Id. at 552

– 53 (internal footnotes omitted). A necessary corollary is that there is no need to examine anything beyond the plain meaning of the g uidelines if the offense category is defined in the g uidelines. Commentaries to the g uidelines, includ ing the notes , are bind

ing on us unless the y are plainly inconsistent with the g uidelines. United States v. Vargas

- Duran , 356 F.3d 598, 602 (5th Cir. 2004) (en banc). If the defendant was con victed under a statute matching the offense as the generic offense defined in the g uidelines, or if the statute of conviction was narrower than in the g uide lines, a COV en hance ment is appropriate. 2
F or th is COV enhancement to be appropriate, then, the elements of Alay’s conviction under Section 261(a)(3) must match the offense categories in Section 2 L1.2(b)(1)(A)(ii) and its accompanying notes. Specifically, to uphold the sentence, we would need to conclude that the California conviction qualifies as a “forcible sex offense” under the g uidelines

. It does

. 3 The g uidelines c ommentary define s a forcible sex offense to include any offense “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.” U.S.S.G. § 2L 1.2 cmt. n.1(B)(iii). On its face, th at definition is clear enough that we can apply its plain meaning, as the first step of Rodriguez dictates

. See Rodriguez , 711 F.3d at 552

– 53. Forcible sex offenses are what the g uidelines

2 See, e.g. , United States v. Santiesteban

- Hernandez , 469 F.3d 376, 378 (5th Cir. 2006), abrogated on other grounds by Rodriguez , 711 F.3d at 554

– 55.

3 The parties also dispute whether Alay’s conviction could fit within the g uidelines’ catch

- all provision for other non - specific COVs: “ 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.S.G. § 2L1.2 cmt. n.1(B)(iii). Because the California conviction qualifies as a forcible sex offense, we do not address this second issue. Case: 15-41125 Document: 00513897062 Page: 4 Date Filed: 03/03/2017No. 15

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5 say they are. See United S tates v. Herrera , 647 F.3d 172, 178 (5th Cir. 2011). Nothing in Rodriguez changes Herrera

. Having concluded that forcible sex offense is defined, all that remains i s to examine whether the elements of conviction under Section 261(a)(3) match the definit ion of forcible sex offense under the g uidelines. They do. The g uide line definition of forcible sex offense is broad and include s no requirement of mens rea . See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Specifically, the g uidelines define a forcible sex offense as an offense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involun tary, incompetent, or coerced.” Id. Notably absent from this defini

tion is any mention of a required mental state; indeed, the plain meaning of the g uidelines is that a forcible sex offense is any offense that fits the definition delineated above, regardless of mens rea . A defendant is guilty of rape under Section 261(a)(3) only if “a person is prevented from resisti ng by intoxicating or anesthetic substance.” The statute permits convicti o ns only where consent was not given or where it was given but was invalid because of intoxication

— in other words, where consent was “involuntary, incompetent, or coerced , ” as under the g uide lines. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The other requirement s of Section 261(a)(3)

— that the victim not be the perpetrator’s wife and that the perpe trator either knew, or should have known, that the victim could not resist

— serve only to narrow the California offense beyond what the g uidelines com mand. The elements match, and Alay’s conviction qualifies as a COV. Alay presents three theories why we s hould vary from this approach; we reject them all

. First, he references Leocal v. Ashcroft , 543 U.S. 1 , 11 (2004) , in which the Court construed the “crime of violence” definition in 18 U.S.C. § 16 to exclude crimes committed with a negligent mental state. But there is Case: 15-41125 Document: 00513897062 Page: 5 Date Filed: 03/03/2017No. 15

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6 no necessary inconsistency between the Supreme Court ’s saying that a COV cannot generally be committed with a negligent mens rea and having a specific defin i tion of a specific type of COV that states that a particular COV can be committed with any sort of mental state. Moreover, the C ourt in Leocal gave no indication that it intended its definition of COV in 18 U.S.C. § 16 to be a gen eral definition of COV within the entirety of the United States Code and

s en tencing g uidelines. There is no obvious reason why a definition of COV in one statute should override a more specific definition in the g uidelines, and Alay does not offer us one. Second, Alay asks us to consider United States v. Dominguez

- Ochoa , 386 F.3d 639 (5th Cir. 2004) , and U nited States v. Ocampo

- Cruz , 561 F. App’x 361 (5th Cir. 2014), in which we excluded crimes that have a mens rea of negli

gence from being considered COVs. This comparison fails because the terms being construed in those cases were undefined in the g uidelines. Dominguez

- Ochoa dealt with manslaughter, and whether involuntary manslaughter counted as a COV , but there was no g uideline definition of “man

slaughter

. ” Dominguez

- Ochoa , 386 F.3d at 643 (“As discussed, [the relevant portion of the Guidelines ] does not define man slaughter (or involuntary man

slaughter).”). Because there was no definition, the panel looked to the generic, contemporary meaning of man slaughter to determine whether involuntary

man slaughter qualified. Id. at 644

– 46. Similar ly, Ocampo

- Cruz examin ed whether a North Carolina statute crim inalizing assault with a deadly weapon inflicting serious injury consti

tuted aggravated assault for purposes of a COV enhancement. Ocampo

- Cruz , 561 F. App’x at 362. Again, “ aggravated assaul t ” went un defined in the g uidelines, so the panel looked to the Model Penal Code to determine the gen

eric, contemporary meaning. Id. If the g uidelines did not define forcible sex Case: 15-41125 Document: 00513897062 Page: 6 Date Filed: 03/03/2017No. 15

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7 offense, these cases would be r elevant. But because they do, there is no reason to look to outside sources to undermine their plain meaning. So too with Alay ’s final contention

— that we should look to the Model Penal Code ’s definition of rape by intoxication. This runs into the same prob

lem that the argument based on Dominguez

- Ochoa and Ocampo

- Cruz does

— why, when the g uidelines are so clear, should we gainsay them? True enough, Section 213.1(1)(b) of the Model Penal Code requires that the defen dant in a
rape - by

- intoxication case have administered the intoxicant to th e victim. T he g uidelines , however, plain ly do not re quire that

― but only that “consent to the conduct [be] not given or . . . not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 n.1(B)(iii). Where an offense is defined so clearly, Rodriguez mandates that we follow the plain meaning as defined in the g uide lines, precisely to avoid th is sort of definitional morass. See Rodriguez , 711 F.3d at 552

– 53

. The judgment of sentence is AFFIRMED. Case: 15-41125 Document: 00513897062 Page: 7 Date Filed: 03/03/2017