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

September 13, 2011
2

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.

Thomas 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 Aguilar 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 PA. CONS. STAT. § 3124.1 (“§ 3124.1”), which the BIA 

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 violence 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 assertion, 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 in 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 lawful 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 § 3124.1,1and 

 

1

Section 3124.1 makes it an offense to “engage[] in 
4

indecent assault, a second degree misdemeanor, under 18 PA.

CONS. STAT. § 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 PA. CONS. STAT.

§ 3121(a)(1).2 Based on 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 violence 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 PA.

CONS. STAT. § 3124.1.

2

Pursuant to 18 PA. CONS. STAT. § 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 including 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. 

§ 1227(a)(2)(A)(i), for having been convicted of a crime 

involving moral turpitude within five years of his admission,

for which a sentence of at least one year or longer may be 

imposed. However, neither the Immigration Judge nor the 

BIA addressed that charge because both found that Aguilar‟s 

sexual assault conviction 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 “any 

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

ground 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 deviant

intercourse” creates a substantial risk that physical force may 

be used in the course of committing the offense, sexual 

assault under § 3124.1 is a crime of violence under § 16(b). 

(Id.) The IJ reasoned that, although § 3124.1 “cover[s] those 

occasions where a victim is compelled to engage in sexual 

intercourse or deviant sexual intercourse 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 the 

offense,” (AR at 86).

Aguilar appealed to the BIA. Like the IJ, the BIA 

reasoned that “even if the intercourse required by [§ 3124.1] 

 

although Aguilar‟s convictions may well qualify as crimes

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

Pursuant to 8 U.S.C. § 1252(a), we 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, 414 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 review 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 States Code).

 

5

The IJ had jurisdiction over Aguilar‟s original 

removal proceeding pursuant to 8 U.S.C. § 1229a, and the 

BIA, in turn, had jurisdiction to consider Aguilar‟s appeal 

pursuant to 8 C.F.R. § 1003.1(b)(3). 
7

III. Discussion

A. The Categorical Approach

This case requires us to interpret the meaning and 

application 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 interpretation”). First, we must ascertain the 

definition of a “crime of violence” under the enumerating 

statute, 8 U.S.C. § 1101(a)(43)(F), which incorporates § 16(b) 

by reference, and second, we must compare that federal

definition to the statute of conviction, 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 aggravated 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 ascertain the 

least culpable conduct necessary to sustain conviction under 

the statute.” Denis v. Att’y Gen. of the U.S., 633 F.3d 201, 

206 (3d Cir. 2011) (citations and internal quotation marks 

omitted).6 

 

6

The categorical approach will not always suffice. 

“Where ... a statute criminalizes different kinds of conduct, 

some of which would constitute [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 under 
8

B. Crime of Violence

The question before us is whether sexual assault under 

§ 3124.1, which has a minimum mens rea of recklessness,7is 

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 substantial risk that force 

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

 

which the defendant was actually convicted.” Denis, 633 

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 our review to the 

fact of 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 of 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 PA. CONS. STAT. § 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 and 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 

crimes of violence.

1. Recklessly Committed Crimes can be 

Crimes of Violence under § 16(b)

As already noted, § 16(b) provides that a crime of 

violence is “any 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, § 16(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 committing the offense. See 18 U.S.C. § 16(b). Thus, 

§ 16(b) is broader than § 16(a), Leocal v. Ashcroft, 543 U.S. 

1, 11 (2004), because it does not require that force be an 

element of the crime, see 18 U.S.C. § 16(b). 
10

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). Mens rea is not featured in that definition, 

but both the Supreme Court and our court have considered 

mens rea when determining what constitutes a crime of 

violence under § 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 crimes 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, 

however, do not foreclose all crimes with a mens rea of 

recklessness from qualifying as crimes of violence. Although 

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 instead follows the plain language of § 16(b) and focuses

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 crime of violence 

under § 16(b) if that crime, by its nature, raises such a risk.

In Leocal v. Ashcroft, the Supreme Court held that a 

Florida DUI offense9is 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]erious bodily injury to another.‟” 543 U.S. at 7 (quoting

FLA. STAT. § 316.193(3)(c)(2)).
11

a person risks having to „use‟ physical force against another 

person in the course of operating a vehicle while intoxicated 

and causing injury.” 543 U.S. at 11. The Court reasoned that 

§ 16(b):

covers 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 another might be required 

in committing a crime.

Id. at 10 (emphasis added). Though 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 suggestion 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 id. (“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 the reckless use 

of force against a person or property of another qualifies as a 

crime of violence under 18 U.S.C. § 16,” id. at 13, it at least 

implied that it could qualify. Indeed, by specifically 

emphasizing that the “disregard” in § 16(b) is a “reckless

disregard,” Leocal supports the conclusion that crimes that 
12

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 exploding10 was not a crime of violence 

under § 16(b). 414 F.3d at 465. As the Supreme Court did in 

Leocal, we focused on whether the crime, by its nature, raised

“a substantial risk that the actor will intentionally use force in 

 

10 The Pennsylvania crime of reckless 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 property 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 property is an 

automobile, airplane, motorcycle, 

motorboat or other motor-propelled 

vehicle in danger of damage or 

destruction.

18 PA. CONS. STAT. § 3301(d).
13

the furtherance of the offense.” Id. at 471. We concluded 

that the 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 our analysis, we noted that a crime like reckless 

burning or exploding, for which the mens rea is “pure” 

recklessness, could not be a crime of violence under § 16(b). 

Id. at 465. “Pure” recklessness, which we had defined in

United States v. Parson, exists when the mens rea of a crime 

“lack[s] an intent, desire 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 child 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 

others on the road or in the car, but in most 

cases 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 Court decided Begay, which held that a DUI 
14

we again focused the inquiry on whether the crime itself 

“involve[d] any risk of intentional harm or use of force.” 414 

F.3d at 471. We 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, 543 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, involves 

a substantial risk that the burglar will use force against a 

victim in completing the crime.”13 Id. (quoting Leocal, 543

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 Armed Career 

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), since 

violent felonies were limited to offenses which “typically 

involve purposeful, violent, and aggressive conduct.” 553 

U.S. at 144-45 (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 federal sentencing guidelines. United States v. Lee,

612 F.3d 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 

sentencing 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 possible 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 risk 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 teaches 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 his crime.” 414 F.3d at 465. Tran

thereby implicitly recognizes that, when such a risk does 

exist, the crime does fall within § 16(b). The discussion in 

Tran concerning burglary, the same “classic [§ 16(b)] 

example” cited in Leocal, also suggests that some crimes that 

can be committed recklessly will qualify as crimes of 

violence under § 16(b). Under common law, burglary is a 

specific intent crime, see Parson, 955 F.2d at 868, the intent 

being to break and enter a dwelling at night to commit a 

felony, BLACK‟S LAW DICTIONARY 211 (8th ed. 2004). But 

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 

carrying 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 the 
16

course of committing the crime. Despite that, Aguilar asserts 

that our post-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 

violence under § 16. 416 F.3d 249, 251 (3d Cir. 2005). In so 

holding, we stated that we “ha[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 

could 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. Bureau of Immigration & Customs 

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

possessing a loaded firearm with intent to use the same 

unlawfully against another, was a crime of violence under § 

16(b). 493 F.3d 303, 305-07 (3d Cir. 2007). We 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 satisfy the requirements of §16(b).” Id. 

at 307. However, since the part of the statute of conviction to 

which Henry pled 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 did 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 crime of 

violence under § 16(b). 418 F.3d at 264. Since that 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 category of crimes of 

violence.” Id. We equated the “reckless conduct” required 

for vehicular homicide with the “accidental conduct”

referenced in Leocal‟s analysis of the Florida DUI offense, 

id. at 263-64, and specifically noted that “[i]nterpreting § 16 

to encompass accidental or negligent conduct would blur the 

distinction” between those lower mens rea offenses and the 

“„violent‟ crimes Congress sought to” be subsumed under 

§ 16(b) for “heightened punishment,” id. 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 than 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 471). 

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 255 (citing Tran, 414 F.3d at 472). 
18

of force can be crimes 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 create the substantial risk of the 

use of force that is required by § 16(b).16 

 

16 Citing to various cases 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 substantial risk 

that force will be used, as § 3124.1 does. See JimenezGonzalez v. Mukasey, 548 F.3d 557, 561 (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 purposeful 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 crime of violence under 

§ 2L1.2(b)(1)(A)(ii) of the federal sentencing guidelines; 

however, that definition of a crime of violence has a provision

that is substantially 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 

§ 2L1.2(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 dangerous instrument (an 
19

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 risk of physical injury to another. Under

§ 16(b), the inquiry is whether the crime creates a substantial 

risk of the use of force while committing 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 crime of violence under § 16(b), 

we must next determine whether § 3124.1 in particular fits 

that definition and is hence an aggravated felony under 8 

U.S.C. § 1101(a)(43)(F). Because we are persuaded by the 

BIA‟s reasoning that “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,” 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 must be a felony and, by its nature, raise

a substantial risk that physical force may be used during the 

commission of the 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 statutory definition of the 

offense.

17

 

17 We emphasize that we are not making any

determination as to when sexual conduct becomes nonconsensual intercourse and thus a crime under § 3124.1. That

challenge is for Pennsylvania judges and juries to decide on a 

case-by-case basis. Here, a jury found Aguilar guilty of 

violating § 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 and 
21

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 PA. CONS. STAT.

§ 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 PA.

CONS. STAT. § 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 feature of conduct charged under 

§ 3124.1 but rather whether there is a substantial risk that 

force will be used in furtherance of the offense.
22

substantial risk that 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.”). We hold that it does.

As discussed in both Leocal and Tran, burglary 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, 543 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. If the risk of force created by an unlawful entry 

into a victim‟s home qualifies 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 at issue in Tran and Leocal. The substantial 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 involve 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 overcome the victim‟s natural
23

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 assault 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 involved in a DUI offense,” 

Leocal, 543 U.S. at 11, and concluded 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 physical force against 

another person, id. at 11-13. In contrast, in an ordinary and 

obvious sense, an offender risks having to intentionally use 

physical 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 unwarranted speculation as to generalized 

assumptions regarding „risk‟ and „escalation‟ scenarios which 

are not categorically 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.” 

BLACK‟S LAW DICTIONARY 1353 (8th ed. 2004). So, 

although it is true that intentional physical 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 a 
24

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-consensual 

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 circuit, our conclusion finds ample support in decisions 

from several 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, the 

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 

victim‟s consent,” id. (citing UTAH CODE ANN. § 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 that “there is a substantial risk that 

physical force may be used in the course of committing the 

offense.” Id. Thus, the court concluded that non-consensual 

sexual intercourse, even without physical force, would 

constitute a crime of violence under § 16(b). Id.

 

“substantial risk” that it will be used. Non-consensual sexual 

intercourse raises that risk.
25

The Fifth Circuit, in Zaidi v. Ashcroft, held that sexual 

battery, defined by statute as “intentional touching, mauling 

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 without the consent of that other person,” was a crime of 

violence under § 16(b). 374 F.3d 357, 360-61 (5th Cir. 2004)

(quoting OKLA. STAT. ANN. 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 Circuit disagreed, emphasizing that, “[b]ecause the 

statute at issue ... presupposes a lack of consent, it 

necessarily carries with it a risk of physical force.” Id. at 361

(citation omitted). The court went on to say that “the nonconsent 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 

offense.”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 initial 

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 –

confuses 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 crimes at all 
26

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 crime of violence 

under § 16(b). 228 F.3d 171, 173 (2d Cir. 2000) (Sotomayor, 

J.). Although the language of the statute of conviction did not 

set forth the elements of the crime, case law defined 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 emphasized that “the 

 

when there is consent. It 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] when, 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 176 (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 

their 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 commission of an offense. In 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, 1152

(10th Cir. 2009). Finding 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 foregoing reasons, 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). We will therefore deny Aguilar‟s petition 

for review.

 

23 The example crimes in § 4B1.2(a)‟s commentary 

include “murder, manslaughter, kidnapping, aggravated 

assault, forcible sex offenses, 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 inquiries

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 nonconsensual sexual 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.