PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10

- 3926

_____________

VICTOR JAIR AGUILAR,

Petitioner

,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

.

_______________

On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1: A046

- 981

- 570) Immigration Judge: Honorable Walter A. Durling

_______________

Argued Sept ember 13, 20112 Before: RENDELL, JORDAN and BARRY, Circuit Judges

.

(Filed November 29, 2011 )

_______________

Wayne P. Sachs [ARGUED]

1518 Walnut Street

– Ste. 702 Philadelphia, PA 19102 Counsel for Petitioner

Eric H. Holder, Jr.

Th omas W. Hussey Rebecca H. Phillips [ARGUED]

Ann C. Varnon United States Department of Justice Office of Immigration Lit., Civ. Div.

P.O. Box 878

Ben Franklin Station Washington, DC 20044 Counsel for Respondent

_______________

OPINION OF THE COURT

_______________3 JORDAN, Circuit Judge

.

Victor Ag uilar petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering that he be
removed because he was convicted of “sexual assault” under
18 P A

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determined was a crime of violence under 18 U.S.C. § 16(b) (“§ 16(b)”), and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Aguilar asserts that crimes involving a minimum mens rea of recklessness cannot be
crimes of vi olence under § 16(b) . Accordingly

, he argues that, because the minimum mens rea necessary for conviction
under § 3124.1 is recklessness, the BIA erred in finding that
his conviction constituted a crime of violence under § 16(b)

. Contrary to Aguilar‟s ass ertion, however, our precedent does
not foreclose the possibility that a reckless crime can be a crime of violence under § 16(b). Because sexual assault , as defined by § 3124.1 , raises a substantial risk that the perpetrator will intentionally use force i n furtherance of the
offense

, we agree with the BIA that it constitutes a crime of violence under § 16(b)

. We will therefore deny Aguilar‟s petition.

I. Background

In 2000, Aguilar, a native and citizen of Honduras,
was admitted to the United States as a l awful permanent resident. Four years later, in the Court of Common Pleas of Berks County, Pennsylvania

, he was found guilty of both sexual assault, a second degree felony, under § 3124.1, 1 and

1 Section 3124.1 makes it an offense to “engage[] in4 indecent assault, a second degree misdemeanor, under 18 P A

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. § 3126(a)(2). He was sentenced to a term of imprisonment of forty

- six months to eight years, followed by two years of probation. In that same proceeding, the jury
found Aguilar not guilty of rape under 18 P A

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. § 3121(a)(1). 2 Based o n those felony and misdemeanor convictions, the Department of Homeland Security (“DHS”) issued Aguilar a Notice to Appear, charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of a crime of v iolence under § 16(b) and hence an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F). 3

sexual intercourse or deviate sexual intercourse with a complainant without the complainant‟s consent.” 18 P A

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. § 3124.1.

2 Pursuant to 18 P A

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. § 3121 (a)(1), “[a] person commits a felony of

... first degree [rape] when the person engages in sexual intercourse with a complainant

... by forcible compulsion.”

3 The definition of “ aggravated felony ” includes “a crime of violence (as defined in [§ 16], but not i ncluding a purely political offense) for which the term of imprisonment [ is ] at least one year.” 8 U.S.C. § 1101(a)(43)( F). The Notice to Appear also charged Aguilar as removable under 8 U.S.C. § 1 227(a)(2)(A)(i), for having been convicted of a crime
inv olving moral turpitude within five years of his admission

, for which a sentence of at least one year or longer may be imposed. However, neith er the Immigration Judge no r the BIA addressed that charge because both found that Aguilar‟s
sexual assault convic tion under § 3124.1 provided a ground for his removal under 8 U.S.C. § 1227(a)(2)(A)(iii). Thus,5 Section 16(b) defines a “crime of violence” as “a ny other offense [not described in § 16(a) 4 ] that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. ” 18 U.S.C. § 16(b). In an “Interlocutory Ruling on Aggravated Felony

, ” the Immigration Judge (“IJ”) “sustain[ed] the aggravated felony

gro und of removal under [8 U.S.C. § 1227(a)(2)(A)(iii)].” (AR at 86. ) The IJ held that

, since “ [ t ] he confrontation inherent in engaging in non

- consensual sexual or devia n t intercourse” creates a substantial risk that physical force may
be used in the co urse of committing the offense, sexual
assault under § 3124.1 is a crime of violence under § 16(b). ( Id .) The IJ reasoned that

, al though § 3124.1 “cover [ s ] those occasions where a victim is compelled to engage in sexual
intercourse or devi ant sexual inte rcourse without consent even where no force was applied

, ” (AR at 85), § 16(b) can nevertheless cover offenses under § 3124.1 because § 16(b) only requires “a substantial risk that physical force may be used against the person in the course of committing th e offense,” (AR at 86 )

.

Aguilar appealed to the BIA. Like the IJ, the BIA
reasoned that “even if the intercourse required by [§ 3124.1]

al th ough Aguilar‟s conviction s may well qualif y as crime s involving moral turpitude, that issue is not before us.

4 Section 16(a) defines a “crime of violence ” as “an
offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).6 is accomplished without physical force or physical resistance, the offense of penetrating another person without [that person‟s] consent necessarily disregards the substantial risk of physical force being used to actually overcome the victim‟s lack of consent.” ( AR at 4. ) Thus, the BIA dismissed the appeal.

Aguilar has timely petitioned us for review.

II. Jurisdiction and Standard of Review

P ursuant to 8 U.S.C. § 1252(a)

, w e have jurisdiction to
consider “„questions of law raised upon a petition for review,‟ including petitions for review of removal orders based on aggravated felony convictions.” 5 Tran v. Gonzales , 4 14 F.3d 464, 467 (3d Cir. 2005) ( quoting 8 U.S.C. § 1252(a)(2)(D)). Since the interpretation of criminal provisions “is a task outside the BIA‟s special competence and congressional delegation ... [ and ] very much a part of this Court‟s competence,” our revi ew is de novo

. See id. (noting that de

novo review is appropriate in the context of interpreting the criminal provisions of Title 18 of the United State s Code).

5 The IJ had jurisdiction over Aguilar‟s original removal proceedi ng pursuant to 8 U.S.C. § 1229a, and t he
BIA , in turn, had jurisdiction to consider Aguilar‟s appeal

pursua nt to 8 C.F.R. § 1003.1(b)(3).7 III. Discussion

A. The Categorical Approach

T his case requires us to interpret the meaning and appl icati on of the type of aggravated felony defined by statute

as a “crime of violence.” See Singh v. Ashcroft , 383 F.3d 144, 150 (3d Cir. 2004) (noting that whether a petitioner has been convicted of an aggravated felony “turns on a question of statutory i nterpretation ”)

. First, we must ascertain the
definition of a “crime of violence” under the enumerating

sta tute, 8 U.S.C. § 1101(a)(43)(F), which incorp orat es § 16(b) by reference , and s econd, we must compare that federal
definition to the statute of con v iction, namely sexual assault under § 3124 .1

. Restrepo v. Att’y Gen. of the U.S. , 617 F.3d 787, 791 (3d Cir. 2010). Case law refers to this kind of analysis as the “ categorical approach ” to determining whether a state law conviction constitutes an aggrav ated felony under
federal law

. Taylor v. United States , 495 U.S. 575 , 601 (1990). Applying the categorical approach, “we look to the
elements of the statutory state offense, not to the specific facts [of the case] , reading the applicable statute to ascer tain the least culpable conduct necessary to sustain conviction under the statute.” Denis v. At t’ y Gen . of the U.S. , 633 F.3d 201, 206 (3d Cir. 2011) (citations and int ernal quotation marks omitted). 6

6 The categorical approach will not always suffice. “Where ... a statute criminalizes different kinds of conduct,
some of which would constitut e [aggravated felonies] while
others would not ,” we turn to a modified categorical approach, under which we “may look beyond the statutory elements to determine the particular part of the statute under8 B. Crime of Violence

The question before us is whe ther sexual assault under § 3124.1, which has a minimum mens rea of recklessness, 7 is a crime of violence under § 16(b). Aguilar argues that it is

not

, because he reads our precedent as barring any crime that can be committed recklessly from qualifying as a § 16(b) crime. The government argues that , notwithstanding the possibility that § 3124.1 may be violated recklessly , “sexual assault,” as defined by that statute, is a crime of violence
under § 16(b) because it creates a substanti al risk that force

may be used. The preliminary issue , then, is whether, under

which the defendant was actually convicted .” Denis , 6 33
F.3d at 206 (citation omitted). Here, however, the categorical approach is sufficient because, as is set forth in detail herein, § 3124.1 criminalizes only behavior that qualifies as an aggravated felony. Thus, we will confine o u r review to the
fact o f conviction and the statutory definition of the offense. Oyebanji v. Gonzales , 418 F.3d 260, 262 (3d Cir. 2005) (citing Taylor , 495 U.S. at 602).

7 Section 3124.1 does not have an explicit mens rea requirement. When a statute is silent as to the level o f mens

rea required to establish a material element of an offense, Pennsylvania law provides that “such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.” 18 P A

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. § 302(c). Regarding
the mens rea required to convict Aguilar of sexual assault, the trial judge instructed the jury that they must find “that the defendant acted knowingly or at least recklessly regarding [the complainant‟s] nonconsent.” (AR at 180.)9 our precedent, the fact that a crime can be committed with a

mens rea of recklessness necessarily disqualifies it from being a crime of violence under § 16(b). We conclude that
reckless crimes can be crimes of violence under § 16(b) because, under the terms of the statute and applicable case law, the focus must be on the risk of the intentional use of force, not merely on mens rea , as Aguilar urges. However, as the relevant precedents are nuanced a nd deserving of discussion, we will review them first and apply the proper test
to the crime at issue

, before turning to cases examining similar crimes, which have consistently been held to be
crime s of violence.

1. Recklessly Committed Crimes can be
Crimes of Violence under § 16(b)

As alread y noted, § 16(b) provides that a crime of
violence is “ a ny other offense [not described in § 16(a) 8 ] that
is a felony and that, by its nature, involves a substantial risk

8 As the government concedes, § 1 6(a) is not at issue
in this case because § 3124.1 does not require a showing of
force and thus does not fall within § 16(a). As pointed out earlier, § 16(a) defines a crime of violence as those offenses that have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). Section 16(b), however, was crafted to include crimes that, by their nature, involve a
substantial risk that physical force may be used in the course
of comm itting the offense

. See 18 U.S.C. § 16(b). Thus, § 16(b) is broader than § 16(a), Leocal v. Ashcroft , 543 U.S. 1, 1 1 (2004) , because it does not require that f orce be an element of the crime, s ee 18 U.S.C. § 16(b).10 that physical force against the person or proper ty of another may be used in the course of committing the offense. ” 18 U.S.C. § 16(b). M

ens rea is not featured in that definition,
but both the Supreme Court and our court have considered

mens rea when determining what constitute s a crime of
violence un der § 16(b). Under those precedents

, crimes involving a mens rea of negligence or of a variant of
recklessness that we have called “pure” recklessness have
been held not to be crime s of violence under § 16(b) because

, by their nature, they do not raise a substantial risk that physical force may be used. E .g. , Tran , 414 F.3d at 465; see Leocal v. Ashcroft

, 543 U.S. 1, 11 (2004)

. Those precedents

, h owever, do not foreclose all crimes with a mens rea of recklessness from qualifying as crimes of violence . A lthough the mental state necessary to satisfy the substantive elements of a crime may have a bearing on the “ substantial risk ” inquiry required by § 16(b)

, a reckless mens rea does not necessarily dictate that a crime falls outside of § 16(b). Case
law in stead follows the plain language of § 16(b) and focus es

on whether the crime, by its nature, raises a substantial risk that force may be used

. Thus , a crime that can be committed recklessly may still qualify as a cri me of violence
under § 16(b) if that cr ime, by its nature, raises such a risk.

In Leocal v. Ashcroft , the Supreme Court held that a
Florida DUI offense 9 is not a crime of violence under § 16(b)
because “[i]n no „ ordinary or natural ‟ sense can it be said that

9 The DUI statute in Leocal “ma[de] it a third degree felony for a person to operate a vehicle while under the influence and, „by reason of such operation, caus[e] ... [s]eri ous bodily injury to another.‟” 543 U.S. at 7 ( quoting
F LA

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. § 316.193(3)(c)(2)).11 a person risks having to „use‟ phys ical force against another person in the course of operating a vehicle while intoxicated
and cau sing injury.” 543 U.S. at 11. T he Court reasoned that § 16(b):

c overs offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person‟s conduct, but to the risk that the use of physical force against ano ther might be required in committing a crime.

Id. at 10 (emphasis added ). T hough the Court held that § 16(b) “require[s] a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense, ”
id. at 11, it did so in light of its su ggestion that the nature of
the DUI crime itself, not the particular mens rea associated
with the crime

, was key in assessing the substantial risk required by § 16(b), see i d

. (“In no „ordinary or natural‟ sense can it be said that a person risks having to „use‟ physical force against another person in the course of operating a vehicle while intoxicated and causing injury.”) . Moreover, while the
Court explicitly noted that it was not considering “whether a state or federal offense that requires proof of th e reckless use of force against a person or property of another qualifies as a
crime o f violence under 18 U.S.C. § 16, ” i d. at 13 , it at least implied that it could qualify. Indeed, b y specifically emphasizing that the “disregard” in § 16(b) is a “ reckles s disregard ,” Leocal supports the conclusion that crimes that12 can be committed recklessly may sometimes be “ crimes of
violence .” Thus, the takeaway from Leocal is its instruction
to focus the § 16(b) analysis on whether the crime, by its nature, raises “a substantial risk” of “the use of force,” id. at 10 n.7 , and not on the crime‟s mens rea

.

After Leocal , we held in Tran that the crime of reckless burning or exploding 10 was not a crime of violence
under § 16(b)

. 414 F.3d at 465. As the Supreme Court d id in
Leocal

, w e focused on whether the crime , by its nature, raise d “a substantial risk that the actor will intentionally use force in

10 The Pennsylvania crime of reck less burning or exploding provides as follows:

A person commits a felony of the third degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own p roperty or on that of another, and thereby recklessly:

(1) places an uninhabited building or unoccupied structure of another in danger of damage or destruction; or

(2) places any personal property of another having a value that exceeds $5,000 or if the p roperty is an automobile, airplane, motorcycle,
motorboat or other motor

- propelled vehicle in danger of damage or
destruction.

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. § 3301(d).13 the furtherance of the offense.” Id. at 471. We concluded
that t h e substantial risk involved in the crime of reckless burning or exploding is “ the risk that the fire started by the offender will spread and damage the property of another,”
which “ cannot be said to involve the intentional use of force.”
Id. at 472.

In o ur analysis, we noted that a crime like reckless
bu rning or exploding, for which the mens rea is “pure”
recklessness

, could not be a crime of violence under § 16(b).
Id. at 4 65. “P ure” recklessness

, which we had defined in
United States v. Parson , exists when the mens rea of a crime “lack[s] an intent, d esire or willingness to use force or cause harm at all.” 11 955 F.2d 858 , 866 (3d Cir. 1992), abrogated on other grounds by Begay v. United States , 553 U.S. 137 (2008)

. 12 Thus , while discussing “pure” recklessness in Tran

,

11 Parson provided the following examples of “pure”
recklessness : [ A ] parent who leaves a young ch ild unattended near a pool may risk serious injury to the child,
but the action does not involve an intent to use
force or otherwise harm the child. Similarly, a drunk driver risks causing severe injury to
other s on the road or in the car, but in most

cas es he or she does not intend to use force to
harm others.

955 F.2d at 866.

12 In Parson , we held that a reckless endangering conviction was a crime of violence under § 4B1.2(a) of the federal sentencing guidelines. 955 F.2d at 860. In 2008, the Supreme Co urt decided Begay , which held that a DUI14 we again focused the inquiry on wh ether the crime itself “involve [d] any risk of intentional harm or us e of force.” 414
F.3d at 471. W e contrasted the “pure” recklessness crime of reckless burning or exploding with the crime of burglary , the “classic example” of a crime covered by § 16(b ). Id. at 472 ( quoting Leocal , 54 3 U.S. at 10). We noted that “[a] burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involv es a substantial risk that the burglar will use force against a victim in completing the crime .” 13 Id. ( quoting Leocal , 54 3 U.S. at 10) (emphasis added)

. Thus, as it had been in Leocal

,

conviction under New Mexico law did not fall within the definition of a “violent felony” under the Arme d Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), since
violent felonies were limited to offenses wh ich “typically involve purposeful, violent, and aggressive conduct. ” 553
U.S. at 14 4

- 4 5 (citation and internal quotations marks omitted) . Post

- Begay , we have held that “a conviction for
mere recklessness cannot constitute a crime of violence”
under the f

ederal sentencing guidelines. United States v. Lee,
612 F.3 d 170, 195

- 97 (3d Cir. 2010). Though Parson was abrogated by Begay to the extent
that Begay held that a conviction of “ mere recklessness ”
cannot constitute a crime of violence under the federal

se ntencing guidelines, Parson ‟s use of the term “pure” recklessness in the context of §16(b) was not overruled by Begay and is still relevant to our inquiry in this case.

13 “ [ T ] he „substantial risk‟ in § 16(b) relates to the use of force, not to the possib le effect of a person‟s conduct.

... ”
Tran , 414 F.3d at 472 ( quoting Leocal , 543 U.S at 10 n.7).15 the focus in Tran was on whether the crime, by its nature,
raises the ris k of the use of physical force

– not on the mens

rea requirement in the statute of conviction.

Like Leocal

, Tran supports our conclusion that some crimes with a minimum mens rea of recklessness can constitute crimes of violence under § 16(b)

. Tran t eaches that
there is a subset of reckless crimes

– those committed with “pure” recklessness

– that do not fit under § 16(b) for the very
reason that the perpetrator runs “no risk of intentionally using force in committing hi s crime.” 414 F.3d at 465. Tra n thereby implicitly recognizes that

, when such a risk does
exist , the crime does fa ll within § 16(b). The discussion in
Tran concerning burglary, the same “classic [§ 16(b)] example” cited in Leocal

, also suggest s that some crime s that
can be committed r ecklessly will qualify as crimes of
violence under § 16(b)

. Under common law, b urglary is a specific intent crime, see Parson , 955 F.2d at 868, the intent being to break and enter a dwelling at night to c ommit a felony, B LACK ‟ S L AW D ICTIONARY 211 (8th ed. 2004). B ut for § 16(b) purposes, what is enlightening is not the mens rea associated with the breaking and entering . It is rather the risk
of confrontation , a risk that may be only recklessly
undertaken. As Tran says, a “burglar has a mens rea legally nearly as bad as a specific intent to use force, for he or she recklessly risks having to [ use force ]” if the occupants of the dwelling are confronted

. 414 F.3d at 471 (quoting Parson

, 955 F.2d at 866).

Accordingly, Leocal and Tran teach that crimes

carr ying a mens rea of recklessness may qualify as crimes of violence under § 16(b) if they raise a substantial risk that the perpetrator will resort to intentional physical force in the16 course of committing the crime

. Despite that

, Aguilar asserts that our p ost

- Tran decisions undermine that conclusion

. The
decisions he relies on

, however

, are distinguishable

.

First, in Popal v. Gonzales

, we held that misdemeanor simple assault under Pennsylvania law was not a crime of
vi olence under § 16. 416 F.3d 249, 251 (3d Cir. 2005) . In so holding, w e stated that we “ h a[d] recently held that crimes
with a mens rea of recklessness do not constitute crimes of violence.” Id. (citing Tran , 414 F.3d at 464). However , as Aguilar concedes in his brief, only § 16(a) was at issue in Popal because the simple assault was not a felony, and thus

co uld not qualify under § 16(b). 416 F.3d at 254. Therefore, any discussion of § 16(b) was “not essential to the decision” in that case, and, as such, is dicta. 14

Second, in Henry v. B ureau of Immigration & Customs Enforcement

, we held that the crime , under New York law, of

possess ing a loaded firearm with intent to use the same unlawfully against another

, was a crime of violence und er § 16(b). 493 F.3d 303, 305

- 07 (3d Cir. 200 7 ). W e noted that

“ [i] n Tran , decided after Leocal , we reaffirmed our precedent
from [ Parson ], which held that ... a reckless state of mind [does not] suffice to satis fy the requirements of §16(b).” Id. at 307. However, since the part of the statute o f conviction to which Henry ple d guilty could only have been accomplished intentionally

, our commentary in Henry on the mens rea of
recklessness is

, again, dicta

, because we were deciding if an intentionally committed crime was a crime of violence under

14 We “can, of course, accord dicta as much weight as we deem appropriate.” Galli v. N.J. Meadowlands Comm’n

, 490 F.3d 265, 274 (3d Cir. 2007) (citation omitted )

.17 § 16(b) and di d not need to consider the reckless mens rea analysis from Tran

. 15

Third, in Oyebanji v. Gonzales

, we held that the crime of vehicular homicide under New Jersey law is not a cr ime of violence under § 16(b). 418 F.3d at 264. Since th at crime “is
a form of reckless driving that causes death, ” we found that

“ Leocal ‟s reasoning seems to suggest that [ vehicular homicide] is excluded from the c ategory of crimes of violence.” Id. W e equated the “reckless conduct” required
for vehicular homicide with the “a ccidental conduct”
referenced in Leocal ‟s analysis of the Florida DUI offense

, i d. at 26 3

- 64 , and specifically noted that “[i]nterpreting § 16
to encompass accidental or negligent conduct would blur the
distinction ” between those lower mens rea offenses a nd the

“ „violent‟ crimes Congress sought to” be subsumed under § 16(b) for “heightened punishment

, ” i d. at 264 (quoting
Leocal , 543 U.S. at 11). Thus , the type of recklessness that
the Oyebanji court found not to qualify under § 16(b)

– the type required for vehicular homicide

– only raised a substantial risk that accidental, not intentional, force would be
used. That position is similar to the one taken in Tran and holds open the possibility that recklessly committed crimes
that create something more th an the risk of the accidental use

15 Notably, Henry re

- affirmed the Tran holding that “„§ 16(b) crimes are those raising a substantial risk that the actor will intentionally use force in the furtherance of the offense.‟” 493 F.3d at 307 ( quoting Tran , 414 F.3d at 47 1 ). Likewise, Popal ‟ s discussion emphasizes that the focus of the § 16(b) analysis should be on whether the crime at issue “involves „a substantial risk that the actor will intentionally

use

... force .‟” 416 F.3d at 2 55 ( citing Tran , 414 F.3d at 472).18 of force can be crim es of violence under § 16(b). In short

, Oyebanji ‟s focus on the “accidental” use of force is akin to
Tran ‟s references to “pure” recklessness: it carves out a class
of reckless crimes that fail to crea te the substantial risk of the
use of force that is required by § 16(b). 16

16 Citing to various cas es from our sister circuits, Aguilar argues that reckless crimes cannot be crimes of violence under § 16(b). Those cases are inapposite because they either do not involve § 16(b)

, or a similarly worded

statute

, or they do not create the same inherent subs tantial risk that force will be used, as § 3124.1 does

. See Jimenez

Gonzalez v. Mukasey , 548 F.3d 557, 5 61 (7th Cir. 2008) (holding that a felony of criminal recklessness was not a crime of violence under § 16(b) because it “does not require

any purposefu l conduct” and “does not necessarily create a risk that force may be used as a means to an end during the commission of the offense”); United States v. Zuniga

- Soto

, 527 F.3d 1110 , 1125 (10th Cir. 2008) (assault of a public servant did not qualify as a crim e of violence under § 2 L1.2(b)(1)(A)(ii) of the federal sentencing guidelines; however, that definition of a crime of violence has a provision
that is su bstantially identical to §16(a) but does not contain any provision similar to the language of § 16(b)); United
States v. Portela , 469 F.3d 496, 497 (6th Cir. 2006) (reckless
vehicular assault was not a crime of violence under § 2 L1.2(b)(1)(A)(ii) of the federal sentencing guidelines , the
same statute at issue in Zuniga

- Soto ); Fernandez

- Ruiz v. Gonzales , 466 F.3d 1121 , 1132 (9th Cir. 2006) ( misdemeanor
domestic violence assault was not a crime of violence under § 16(a)); Garcia v. Gonzales , 455 F.3d 465, 469 (4th Cir. 2006) (assault in the second degree for recklessly causing physical injury by means of a dan gerous instrument (an19 Thus, we have never categorically foreclosed the possibility that a recklessly committed crime may be a crime of violence under § 16(b)

, and we will not do so here.

automobile) was not a crime of violence under § 16(b)
because the reckless conduct only raised the risk that physical injury might occur, and not the risk that force may be used as required by § 16(b) ). Aguilar also cites to the 2008 Supreme Court decision
in Begay to support excluding from § 16(b) crimes with a reckless mens rea

. As discussed in footnote 12 supra , Begay
held that a DUI conviction under New Mexico law did not fall within the definition of a “violent felony” under the
ACCA since violent felonies are limited to offenses which “typically involve purposeful, violent, and aggressive
conduct.” 553 U.S. at 144

- 45 (internal citation and quotation marks omitted). However, a crime of violence under § 16(b) requires a different analysis than a crime of violence under the ACCA. Under the ACCA, a violent felony must create a
serious potential ris k of physical injury to another. Under § 16(b) , the inquiry is whether the crime creates a substantial
risk of the use of force while c ommitting the offense, not a risk of injury. Cf. Tran , 414 F.3d at 472 (“ [ T ] he „substantial risk‟ in § 16(b) relates to the use of force, not to the possible effect of a person‟s conduct.” ( quoting Leocal , 543 U.S at 10 n.7)).20 2. Section 3124 .1 is a Crime of Violence Under § 16(b)

Having established that a crime with a mens rea of recklessness can qualify as a cr ime of violence under § 16(b)

, we must next determine whether § 3124.1 in particular fits
that definition and is hence an ag gravated felony under 8 U.S.C. § 1101(a)(43)(F)

. Because we are persuaded by the BIA‟s reasoning tha t “the offense of penetrating another person without [that person‟s] consent necessarily disregards the substantial risk of physical force being used to ac tually overcome the victim‟s lack of consent,” we hold that it is a crime of violence under § 16(b) . (AR at 4.)

Our analysis begins with the plain language of § 16(b)

, which requires that for sexual assault under § 3124.1 to be a
crime of violence

, it mu st be a felo ny and

, by its nature

, raise

a substantial risk that physical force may be used during the
commission of th e offense. 18 U.S.C. § 16(b). Because we are applying the formal categorical approach , we only look to
the fact of the conviction and s tatutory definition of the
offense

. 17

17 We emphasize that we are n ot making a ny determination as to when sexual conduct become s non

consensual intercourse and thus a crime under § 3124.1. T hat challenge is for Pennsylvania judges and juries to decide on a

case

- by

- case basis. Here, a jury found Aguilar guilty of
violati ng § 3124.1. Under the formal categorical approach, we may not look past that conviction to consider his particular conduct in the underlying criminal case. The details of what actually occurred between the victim and21 Section § 3124.1, a second degree felony under Pennsylvania law , makes it an offense to “engage[] in sexual intercourse or deviate sexual intercourse with a complainant
without the complainant‟s consent.” 18 18 P A

. C ON S

. S TAT

. § 3124.1. In addition to the ordinary meaning of sexual intercourse, the statutory definitions of both “sexual
intercourse” and “deviate sexual intercourse” include “intercourse per os or per anus ” and “penetration.” 18 P A

. C ONS

. S TAT

. § 3101.

Since it is beyond dispute that sexual assault under § 3124.1 is a felony, we turn to the second requirement of § 16(b) and ask

, using the template provided in Tran

, whether

non

- consensual sexual intercourse, by its nature, creates a

Aguilar are not part of our calculus and we make no comment
on them.

18 Section 3124.1 was enacted “to fill the loophole left by the rape and involuntary deviate sexual intercourse statutes by criminalizing non

- consensual sex where the perpetrator employs little if no force.” Commonwealth v. Pasley , 743 A.2d 521, 524 n.3 (Pa. Super. Ct. 1999). Aguilar argues that the Pennsylvania legislature‟s inclusion of force as an aspect of other crimes in the subchapter, including rape and involuntary deviate sexual intercourse, strongly indicates that the legislature did not anticipate that force would be commonly used in the commission of sexual assault under § 3124.1. The operative question, however, is not whether
force will often be a fea ture of conduct charged under § 3124.1 but rather whether the re is a substantial risk that
force will be used in furtherance of the offense.22 substantial risk tha t the actor will intentionally use physical force against the victim. See Tran , 414 F.3d at 471 (“ [ W ] e ... conclude that § 16(b) crimes are those raising a substantial
risk that the actor will intentionally use force in the furtherance of the offense.”). W e hold that it does.

As discussed in both Leocal and Tran , b urglary is a crime of violence under § 16(b ) “ because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.” Id. at 472 ( quoting Leocal , 54 3 U.S. at 10). Just as a burglary creates a
substantial risk that the burglar will have to use physical force

to overcome the desire of home occupants to protect themselves and their property , so too does a sexual assault under § 3124.1

, by its nature, create a substantial risk that the assailant will use physical force to overcome a victim‟s desire to protect his or her body from non

- consensual sexual penetration . I f the risk of force created by an unlawful entry into a victim‟s home qu alifies under § 16(b), then surely the
risk of force when an offender is trying to enter a victim‟s body without consent must qualify as well

.

It is useful for contrast to look at the risks created by
the crimes a t issue in Tran and Leocal

. The substanti al risk involved in reckless burning or exploding , which was
considered in Tran

, “is the risk that the fire started by the offender will spread and damage the property of another.

... [which is a ] risk [ that ] cannot be said to invol ve the
intentional use of force .” Tran , 414 F.3d at 472. The
offender does not have to overcome a victim. The substantial risk involved in sexual assault under § 3124.1 , however, is
that

, to achieve non

- consensual penetration

, the offender will intentionally use force to overcom e the victim‟s natural23 resistance against participating in unwanted intercourse. Thus, unlike the statute of conviction in Tran , sexual assault
raises a risk that can certainly be said to involve the intentional use of force by the offender.

Sexual assau lt is also unlike the statute of conviction at
issue in Leocal . The Supreme Court there determined that § 16(b) “ requir [ ed ] a higher mens rea than the merely accidental or negligent conduct inv olved in a DUI offense, ”
Leocal , 543 U.S. at 11 , and conclude d that a DUI offense could not be “shoehorn[ed]” into §16(b) because in no ordinary and natural sense could driving under the influence raise a substantial risk of having to use physic al force against another person, i d. at 11

- 13. In contrast, in an ordin ary and
obvious sense, an offender risks having to intentionally use physic al force against a victim in the course of engaging in

non

- consensual sexual intercourse. 19

19 Aguilar argues that the IJ and the BIA “both engaged in u nwarranted speculation as to generalized assumptions regarding „risk‟ and „escalation ‟ scenarios which are not catego rically part of the „course of committing the
offense. ‟” (Appellant‟s Opening Br. at 8

- 9.) However, as the government argues, using the word “risk” in the definition of § 16(b) requires an inquiry into the probabilities of human behavior. The term “risk ” is defined as “ [ t ] he uncertainty of a result, happening, or loss; the chance of injury, damage or loss; esp., the existence and extent of the possibility of harm.”

B LACK ‟ S L AW D ICTIONARY 1353 (8th ed. 2004). So,
al though it is true that intentional phy sical force may not, in all cases, be used during the commission of non

- consensual sexual intercourse, that is not the proper inquiry. Again , the relevant question under § 16(b) is whether there is a24 We therefore hold that sexual assault under § 3124.1, by its nature, raises a substantial risk that an actor will intentionally use force in furtherance of the non

- conse nsual sexual intercourse, and, accordingly , that it constitutes a crime of violence under § 16(b).

We note that, while this is an issue of first impression
in our c ircuit

, our conclusion finds ample support in decisions
from s eve ral of our sister courts of appeals

. In United States v. Reyes

- Castro , the Tenth Circuit held that sexual abuse of a child under Utah law was a crime of violence under § 16(b) because “by its nature it involves a substantial risk that physical force [may be used] against the person ... of
another.” 13 F.3d 377, 379 (10th Cir. 1993) (internal citation
and quotation marks omitted)

. In reaching that holding, t he Tenth Circuit affirmed the district court‟s analysis of the “role
of force in crimes where lack of victim consent is an element.” Id. The district court had analogized the statute concerning sexual abuse of a child to Utah ‟s rape statute

, which defined rape as “sexual intercourse ... without the
vic tim‟s consent,” i d. (citing U TAH C ODE A NN . § 76

- 5

- 402(1)), a definition that is closely similar to sexual assault under § 3124.1. Because violating that rape statute was a crime that “involves a non

- consensual act upon another

person, ” the court found tha t “ there is a substantial risk that physical force may be used in the c ourse of committing the
offense

. ” I

d. Thus, the court concluded that non

- consensual sexual intercourse, even without physical force, would
constitute a cr ime of violence under § 16(b)

. Id

.

“substantial risk” that it will be used. Non

- consensua l sexual
intercourse raises that risk.25 The Fifth Circuit, in Zaidi v. Ashcroft , held that sexual battery

, defined by statute as “intentional touching, m auling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner
and wi thout the consent of that other per son, ” was a crime of violence under § 16(b). 374 F.3d 357 , 360

- 61 (5th Cir. 2004) (quoting O KLA

. S TAT

. A NN . tit. 21, § 1123(B))

. The petitioner had argued that the statute could be violated through an “ intentional , but „nonviolent,‟ physical touching ,” and thus should not qualify as a crime of violence. Id

. at 360

. The Fifth Circui t disagreed, emphasizing that

, “ [ b ] ecause the statute at issue ... presupposes a lack of consent, it necessarily carries with it a risk of phy sical force.” Id

. at 361 (citation omitted)

. The court went on to say that “ the non

consent of the victim is the touchstone for determining whether a given offense involves a substantial risk that physical force may be used in the commission of the
offen se.” 20 Id

. ( citation and internal quotation marks omitted).

20 Aguilar contends that Zaidi is factually distinguishable from his case because the statute of
conviction in Zaidi requires intentional conduct and sexual assault only requires a mens rea of recklessness. As an init ial matter, we find it hard to believe that sexual assault under § 3124.1 can be accomplished without intentional sexual penetration. Further, focusing on the act

– intentional sexual penetration in sexual assault or intentional touching in Zaidi

– confus es the issue and is not the proper focus for § 16(b). That is because neither of those acts, by themselves, raise the
substantial risk of use of force that would make them crimes
of violence . Indeed, they typically would not be crime s at all26 In Sutherland v. Reno

, the Second Circuit determined that the Massachusetts crime of “indecent assault and battery on a person over the age of fourteen ” was a c rime of violence under § 16(b). 2 28 F.3d 171, 173 (2d Cir. 2000) (Sotom ayor, J.). Although the language of the statute of conviction did not set forth the elements of the crime , case law define d it to
include a lack of consent. 21 See

, e.g. , Maghsoudi v. INS , 181 F.3d 8, 15 (1st Cir. 1999 ) (noting that, under applicable Massachusetts law, “[l]ack of consent [i]s an element of indecent assault on a person fourteen or older”). The Second
Circuit said that it was significant that the lack of consent was a required element

, and the court emph asized that “the

when there i s consent. I t is the non

- consent of the victim in § 3124.1 , as it was in Zaidi , that creates the substantial risk of use of physical force and transforms the act into a crime of violence under § 16(b).

21 The crime encompassed :
[a] touching ... [that] w hen, judged by the normative standard of societal mores, is violative of social and behavioral expectations, in a manner which is fundamentally offensive to contemporary moral values and which the common sense of society would regard as immodest, immoral, and improper. So defined
the term indecent affords a reasonable opportunity for a person of ordinary intelligence to know what is prohibited.

Id. at 176 ( quoting Commonwealth v. Lavigne , 676 N.E.2d 1170, 1172 (1997)).27 existence of lack of consent by the victim ... by its nature, presents a substantial risk that force may be used in order to overcome the victim‟s lack of consent and accomplish the indecent touching.” Sutherland

, 228 F.3d at 17 6 (internal citations and quotation marks omitted) . In support of that contention, the court referenced an Eighth Circuit case, United States v. Rodriguez , which held:

[T]he statutory language “may” and “substantial risk” must not be ignored. All crimes which by
th eir nature involve a substantial risk of physical force share the risk of harm. It matters not one whit whether the risk ultimately causes actual harm. Our scrutiny ends upon a finding that the risk of violence is present.

979 F.2d 138 , 141 (8th Cir. 1992 ).

Though not decided in the context of § 16(b), another case provides support for the proposition that the non

- consent of the victim is a “touchstone” for determining whether an offense raises a substantial risk that force will be used during
the commis sion of an offense. I n United States v. Rooks , the Tenth Circuit concluded that third degree sexual assault under Texas law constituted a crime of violence under § 4B1.2(a) of the federal sentencing guidelines. 22 556 F. 3d 1145, 11 52 (10th Cir. 2009). Fin ding the Supreme Court‟s decision in Begay instructive, the Rooks court concluded that “[s]exual

22 Specifically, Rooks was convicted of intentionally or knowingly causing sexual penetration of a person without that person‟s consent. Rooks

, 556 F.3d at 1146.28 assault involving intentional penetration without consent is similar in kind as well as in degree of risk posed to the example crimes set forth in § 4B1.2(a)‟s commentary.” 23 Id. at 1150 ( internal citation and quotation marks omitted ). The
Rooks court also found that “ [ t ] he risk of confrontation, another indicator of violent and aggressive conduct, is
inherent in non

- consensual sexual encounters.” Id. at 1151 (internal citation omitted). 24

IV. Conclusion

For the for e going reason s , the BIA did not err in holding that Aguilar‟s offense was a crime of violence under § 16(b)

, and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). W e will therefore deny Ag uilar‟s petition
for review.

23 The example crimes in § 4B1.2(a)‟s commentary
include “ murder, manslaughter, kidnapping, aggravated assault, forcible sex offe nses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.1.

24 A crime of violence under § 16(b) and a crime of violence under § 4B1.2(a) do not have identical inquirie s because the former focuses on the risk that force may be used and the latter, like the ACCA, focuses on the risk that physical injury may occur

. See Leocal , 543 U.S. at 10 n.7. However, the analysis in Rooks regarding the effect of non

consensual sexua l penetration is instructive to the inquiry required under § 16(b) and generally provides support for the
contention that non

- consensual sexual penetration is a crime
of violence

.