### 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 ClerkNo. 10-40179

2 I. Factual & Procedural Background Javier Diaz–Corado isa Guatemalan citizen whofirst entered the country
on a work permit in 1993. In 1999, Diaz–Corado was charged with the Colorado crimes ofaggravated incest on a relative younger than ten, two counts ofsexual 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 ofeight 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 Gui deline 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 “allNo. 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 c ourt 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 re viewed 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 ofviolence’ within the meaning of [U.S.S.G. § 2L1.2].” U nited 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 inconsistentwith, 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 ofviolence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). For purposes of Diaz–Corado’s appeal, the relevant Commentary defines a crime ofviolence as: (1) “forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent totheconduct is 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. U nited 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.’ ” U nited States v. Olalde–Hernandez, 630 F.3d 372, 374 (5th Cir. 2011) (citation omitted). In determining whether a crime qualif ies as a crime of violence, this court looks “only to the particular subdivision ofthe 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 offree will and with knowledge ofthe nature ofthe act.

. . . Submission under the influence offear shall not constitute consent.” COLO

. R EV

. 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 ofthe actor’s intimate parts by the victim, or the knowing touching ofthe clothing covering the immediate area ofthe 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” f ound 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

5 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); s eealso United States v. Herrera, — F.3d —, 2011 WL 2698982, at *5 (5th Cir. July 13, 2011) (applying Commentary definition toconcludethat an Arkansasconviction
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, regardlessofwhether the prior offense expressly has as an element the 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 marksomitted). Diaz–Corado’s conviction for unlawful sexual contact falls squarely within the Commentary’s definition ofa 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 ofthat 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.” I d. at 247. Diaz–Coradoarguesthat, because unlawful sexual contact requiresonly contact and an absence ofconsent, 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. I d. at 248 n.7. This court has recently heldNo. 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 offorcible sex offense has supplanted this Circuit’s previous definition of the term. See Herrera, 2011 WL 2698982, at *4 (“[O]ur holding in [G omez–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 previousdefinition ofa forciblesex 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 todefine “forcible sex offense,” but was intended only toreverse a line ofcases that excluded offenseswheretherecould 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 ofthe 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 offorcible sex offense to include
sex offenseswhere 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); c f. 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 theNo. 10-40179

7 language in the amended Commentary—which directly connects a victim’s lack ofconsent with forcible conduct—that it was meant to apply only when there is assent to the act, but not legally valid consent, while excludi ng 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 ofthe Guidelines, a violation of Colorado Revised Statutes § 18-3-404(1)(a) was a forcible sex of f ense for purposes ofthe 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 thecontext ofunlawful 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’sfinger on another person without lawful justification.’ ” I d. (quoting Black’s Law Dictionary 674). Thus, the Romero–Hernandez c ourt 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.” I d. 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.