REVISED AUGUST 24, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40179

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAVIER DIAZ–CORADO,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before KING, DAVIS, and GARZA, Circuit Judges.

PER CURIAM:

Defendant–Appellant Javier Diaz–Corado pled guilty to illegally

reentering the country after having been deported and was sentenced to 51-

months’ imprisonment. On appeal, he challenges the district court’s imposition

of a sixteen-level sentence enhancement under United States Sentencing

Guidelines Manual § 2L1.2, arguing that his previous Colorado criminal

conviction for unlawful sexual contact was not a “crime of violence.” We

AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 2, 2011

Lyle W. Cayce

Clerk
No. 10-40179

2

I. Factual & Procedural Background

Javier Diaz–Corado is a Guatemalan citizen who first entered the country

on a work permit in 1993. In 1999, Diaz–Corado was charged with the Colorado

crimes of aggravated incest on a relative younger than ten, two counts of sexual

assault of a child, and unlawful sexual contact. A warrant was issued for his

arrest. In 2008, Diaz–Corado pled guilty to one count of unlawful sexual contact,

in violation of Colorado Revised Statutes § 18-3-404(1)(a), and the remaining

charges in the Colorado indictment were dismissed. On June 23, 2009,

Diaz–Corado was deported to Guatemala.

On September 2, 2009, Diaz–Corado was apprehended by Border Patrol

Agents in Brooks County, Texas. Diaz–Corado pled guilty to illegal reentry in

violation of 8 U.S.C. § 1326. The presentence investigation report (“PSR”) in

Diaz–Corado’s case recommended a total offense level of twenty-one. This

reflected a base offense level of eight for illegal reentry, see U.S.S.G. § 2L1.2(a)

(Nov. 2008), a sixteen-level increase for Diaz–Corado’s unlawful sexual contact

conviction on the grounds that it was a “crime of violence,” see id.

§ 2L1.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility,

see id. § 3E1.1(a), (b). Given Diaz–Corado’s criminal history category of II, the

PSR stated that the advisory Guideline range for Diaz–Corado’s offense was

forty-one to fifty-one months. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

Diaz–Corado objected to the PSR on the ground that his conviction for

unlawful sexual contact was not a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A) because it was not a forcible sex offense and was not an offense

that has as an element the use, attempted use, or threatened use of physical

force. See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Diaz–Corado justified this

characterization of his conviction because it could be committed without any

force or compulsion. The district court overruled Diaz–Corado’s objection to the

PSR. Turning to § 3553(a), the district court stated that it had considered “all
No. 10-40179

3

of the factors in 3553(a), including the guidelines . . . and the need to prevent

future criminal conduct . . . [a]nd most particularly to protect citizens.” The

district court then sentenced Diaz–Corado to fifty-one months’ imprisonment.

Diaz–Corado appealed.

II. Discussion

The sole basis for Diaz–Corado’s appeal is that the district court erred

when it concluded that his conviction for unlawful sexual contact was a crime of

violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which resulted in a sentence beyond

the correct Guidelines range. As a general matter, the reasonableness of the

sentence imposed by the district court is reviewed for an abuse of discretion.

United States v. Lopez–Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) (citing Gall

v. United States, 552 U.S. 38 (2007)). But this court reviews de novo the district

court’s interpretation and application of the Guidelines, including whether “a

defendant’s prior conviction qualifies as a ‘crime of violence’ within the meaning

of [U.S.S.G. § 2L1.2].” United States v. Hernandez–Galvan, 632 F.3d 192, 196

(5th Cir. 2011) (citation omitted). When interpreting the Guidelines, the

relevant Commentary in the Guidelines Manual “is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38

(1993).

The Guidelines instruct that a defendant’s offense level is to be increased

by sixteen levels where he was “previously deported, or unlawfully remained in

the United States, after a conviction for a felony that is . . . a crime of violence.”

U.S.S.G. § 2L1.2(b)(1)(A)(ii). For purposes of Diaz–Corado’s appeal, the relevant

Commentary defines a crime of violence as: (1) “forcible sex offenses (including

where consent to the conduct is not given or is not legally valid, such as where

consentto the conductis involuntary, incompetent, or coerced)”; or (2)“any other

offense under federal, state or local law that has as an element the use,
No. 10-40179

4

attempted use, or threatened use of physical force against the person of

another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Thus, an offense qualifies as a crime

of violence if it “has physical force as an element” or “qualifies as one of the

enumerated offenses” in the Commentary. United States v. Gomez–Gomez, 547

F.3d 242, 244 (5th Cir. 2008) (en banc). “If the statute of conviction prohibits

behavior that is not within the plain, ordinary meaning of the enumerated

offense, the prior offense is not a ‘crime of violence.’ ” United States v.

Olalde–Hernandez, 630 F.3d 372, 374 (5th Cir. 2011) (citation omitted). In

determining whether a crime qualifies as a crime of violence, this court looks

“only to the particular subdivision of the statute under which the defendant was

convicted” rather than the defendant’s specific conduct. Id. (citation and

internal quotation marks omitted).

In this case, Diaz–Corado pled guilty to violating Colorado Revised

Statutes § 18-3-404(1)(a), which states that “[a]ny actor who knowingly subjects

a victim to any sexual contact commits unlawful sexual contact if . . . [t]he actor

knows that the victim does not consent.” For purposes of unlawful sexual

contact, “consent” is defined as “cooperation in act or attitude pursuant to an

exercise of free will and with knowledge of the nature of the act. . . . Submission

under the influence of fear shall not constitute consent.” COLO. REV. STAT. § 18-

3-401(1.5). The statute defines “sexual contact” as

the knowing touching of the victim’s intimate parts by the actor, or

of the actor’s intimate parts by the victim, or the knowing touching

of the clothing covering the immediate area of the victim’s or actor’s

intimate parts if the sexual contact is for the purposes of sexual

arousal, gratification, or abuse.

Id. § 18-3-401(4).

Pursuant to the definition of “forcible sex offense” found in the

Commentary to § 2L1.2, we conclude that unlawful sexual contact in violation

of Colorado Revised Statute § 18-3-404(1)(a) is a forcible sex offense.
No. 10-40179

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Diaz–Corado’s unlawful sexual contact conviction necessarily involved contact

with the victim whom Diaz–Corado knew did not “cooperate in act or attitude”

with that contact. As noted above, the Commentary to the Guidelines defines

a forcible sex offense as “including where consent to the conduct is not given or

is not legally valid.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added); see also

United States v. Herrera, — F.3d —, 2011 WL 2698982, at *5 (5th Cir. July 13,

2011) (applying Commentary definition to conclude that an Arkansas conviction

was a crime of violence). The language regarding consent in the Commentary

was added in 2008 to make it “clear that forcible sex offenses, like all offenses

enumerated in Application Note 1(B)(iii), are always classified as crimes of

violence, regardless of whether the prior offense expressly has as an elementthe

use, attempted use, or threatened use of physical force against the person of

another.” U.S.S.G. App. C, amend. 722 (Nov. 2008) (citation and internal

quotation marks omitted). Diaz–Corado’s conviction for unlawful sexual contact

falls squarely within the Commentary’s definition of a forcible sex offense, and

is, therefore, a crime of violence.

Diaz–Corado challenges this conclusion on two related bases. First,

Diaz–Corado argues that finding his unlawful sexual contact conviction is a

forcible sex offense conflicts with the definition of that term this Court adopted,

en banc, in United States v. Gomez–Gomez, 547 F.3d 242 (5th Cir. 2008). The

Gomez–Gomez court defined a forcible sex offense as one which “is committed

using force or forcible compulsion against opposition or resistance.” Id. at 247.

Diaz–Corado argues that, because unlawful sexual contact requires only contact

and an absence of consent, his Colorado conviction could have been for conduct

outside the definition of a forcible sex offense in Gomez–Gomez. However, this

court decided Gomez–Gomez before the amended Commentary took effect and

explicitly noted that the holding did not address the “proposed amended

definition” of forcible sex offense. Id. at 248 n.7. This court has recently held
No. 10-40179

1 For this same reason, Diaz–Corado’s reliance on this court’s decision in United States

v. Rosas–Pulido, 526 F.3d 829 (5th Cir. 2008), is unpersuasive.

6

that the amended definition of forcible sex offense has supplanted this Circuit’s

previous definition of the term. See Herrera, 2011 WL 2698982, at *4 (“[O]ur

holding in [Gomez–Gomez] is no longer applicable to the extent that it defines

forcible sex offense because the phrase is defined in the Guidelines.”); cf. United

States v. Rodriguez–Juarez, 631 F.3d 192, 194 (5th Cir. 2011) (per curiam)

(“[T]he effect of the revisions to the Sentencing Guidelines is to make our prior

precedent inapplicable to sentences calculated under the revised version

of U.S.S.G. § 2L1.2(b)(1)(A)(ii).”). Therefore, contrary to Diaz–Corado’s urging,

this Circuit’s previous definition of a forcible sex offense is not applicable in light

of the Commentary’s language expanding and clarifying that term.1

Nevertheless, Diaz–Corado argues that the amendment to the

Commentary was not intended to define “forcible sex offense,” but was intended

only to reverse a line of cases that excluded offenses where there could be “assent

in fact but no legally valid consent” from the definition of “forcible sex offense.”

Although the notes to the amendment state that application of the amendment

overrules those cases, see U.S.S.G. App. C, amend. 722, this court has not read

the amendment so narrowly. Instead, this court recently concluded that the

phrase “including where consent to the conduct has not been given or is not

legally valid” supplants the previous definition of forcible sex offense to include

sex offenses where consent to the conduct is involuntary or cannot be given. See

Herrera, 2011 WL 2698982, at *5 (characterizing sexual contact with a party

who is “physically helpless, mentally defective, or mentally incapacitated” as a

forcible sex offense because the victim is unable to consent); cf.

Rodriguez–Juarez, 631 F.3d at 194 (involving statute criminalizing touching

where the victim is “so mentally disabled or deficient that consent to touching

cannot be given”). Moreover, it would make little sense to infer from the
No. 10-40179

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language in the amended Commentary—which directly connects a victim’s lack

of consent with forcible conduct—that it was meant to apply only when there is

assent to the act, but not legally valid consent, while excluding offenses from

that definition where there was neither consent nor assent.

The Tenth Circuit’s analysis in United States v. Romero–Hernandez, 505

F.3d 1082 (10th Cir. 2007), lends further support to our interpretation of the

term forcible sex offense in this case. In Romero–Hernandez, the Tenth Circuit

concluded that, under the pre-amendment version of the Guidelines, a violation

of Colorado Revised Statutes § 18-3-404(1)(a) was a forcible sex offense for

purposes of the sentence enhancement under U.S.S.G. § 2L1.2 because a sexual

contact offense is “necessarily forcible when that person does not consent.”

Romero–Hernandez, 505 F.3d at 1089. Crucial to this conclusion was the

Romero–Hernandez court’s reasoning that, although forcible was generally

defined as “ ‘[e]ffected by force or threat of force against opposition or

resistance,’”that definition was not applicable in the context of unlawful contact

with another person. Id. at 1088 (quoting Black’s Law Dictionary 674 (8th ed.

2004)). Rather, in that context, forcible contact occurs when a person “ ‘lay[s]

one’s finger on another person without lawful justification.’ ” Id.(quoting Black’s

Law Dictionary 674). Thus, the Romero–Hernandez court reasoned that

opposition or resistance “should not be read to require active opposition or

resistance [to a sex offense]” Id. “[T]he legal right to be free from interference

will suffice.” Id. This portion of the court’s analysis in Romero–Hernandez is

particularly persuasive because it echoes the amended Commentary’s connection

between a lack of consent and forcible conduct. Accordingly, Diaz–Corado’s

violation of Colorado Revised Statutes § 18-3-404(1)(a) is a forcible sex offense,

and is therefore subject to the sixteen-level increase in Diaz–Corado’s base

offense level as a “crime of violence.”
No. 10-40179

8

Aside from his challenge to the district court’s characterization of his

conviction for unlawful sexual contact, Diaz–Corado does not otherwise

challenge the sentence imposed by the district court. We therefore hold that the

district court’s sentence did not amount to an abuse of discretion.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment.