PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4102

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSMIN ALFARO,

Defendant-Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-

cr-00221-PWG-1)

Argued: March 24, 2016 Decided: August 29, 2016

Before Traxler, Shedd, and Floyd, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion 

in which Judge Shedd and Judge Floyd joined.

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE 

FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. 

Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh, 

Deputy Assistant Attorney General, Criminal Division, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. 

Rosenstein, United States Attorney, Baltimore, Maryland, Sujit 

Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, 

Greenbelt, Maryland, for Appellee.
2

TRAXLER, Circuit Judge:

Osmin Alfaro, a native of El Salvador, entered the United 

States illegally when he was a teenager. In 2003, he was 

convicted in Maryland of third-degree sexual offense for

sexually assaulting his then-estranged wife. Alfaro was 

deported in 2008, after failing to register as a sex offender in 

Maryland, and he illegally re-entered the country in 2010. 

Alfaro came to the attention of federal authorities in 2014, and 

he was charged with, and ultimately pleaded guilty to, one count 

of failing to register as a sex offender, see 18 U.S.C. § 2250, 

and one count of illegal re-entry, see 8 U.S.C. § 1326. After 

concluding that Alfaro’s prior felony conviction qualified as a 

crime of violence and applying a 16-level enhancement, see

U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014), the district court 

sentenced Alfaro to 46 months’ imprisonment. Alfaro appeals his 

sentence, arguing that the district court erred in concluding 

that his previous conviction amounted to a crime of violence. 

We affirm.

I.

The Sentencing Guidelines provide for a 16-level 

enhancement in illegal entry cases where the defendant was 

deported after “a conviction for a felony that is . . . a crime 

of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to 

§ 2L1.2 defines “crime of violence” as 
3

any of the following offenses under federal, state, or 

local law: murder, manslaughter, kidnapping, 

aggravated assault, forcible sex offenses (including 

where consent to the conduct is not given or is not 

legally valid, such as where consent to the conduct is 

involuntary, incompetent, or coerced), statutory rape, 

sexual abuse of a minor, robbery, arson, extortion, 

extortionate extension of credit, burglary of a 

dwelling, or any other offense under federal, state, 

or local law that has as an element the use, attempted 

use, or threatened use of physical force against the 

person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

To determine whether Alfaro’s Maryland conviction qualifies 

as a crime of violence under § 2L1.2, we apply the familiar

categorical approach and compare the elements of the prior 

offense to the elements of the generic federal offense. The 

prior conviction qualifies as a crime of violence under the 

categorical approach if the elements of the underlying statute 

are the same as or narrower than the definition of the generic 

offense. See United States v. Flores-Granados, 783 F.3d 487, 

491 (4th Cir.), cert. denied, 136 S. Ct. 224 (2015). “However, 

if the state statute criminalizes a broader scope of conduct 

than the Guideline crime then it is not categorically a crime of 

violence.” Id. (internal quotation marks and alterations 

omitted)

The Maryland statute under which Alfaro was convicted 

provides that:

(a) A person may not:
4

(1) (i) engage in sexual contact with another 

without the consent of the other; and

(ii) 1. employ or display a dangerous 

weapon, or a physical object that the victim 

reasonably believes is a dangerous weapon;

2. suffocate, strangle, disfigure, or 

inflict serious physical injury on the 

victim or another in the course of 

committing the crime;

3. threaten, or place the victim in 

fear, that the victim, or an individual 

known to the victim, imminently will be 

subject to death, suffocation, 

strangulation, disfigurement, serious 

physical injury, or kidnapping; or

4. commit the crime while aided and 

abetted by another;

(2) engage in sexual contact with another if the 

victim is a mentally defective individual, a 

mentally incapacitated individual, or a 

physically helpless individual, and the person 

performing the act knows or reasonably should 

know the victim is a mentally defective 

individual, a mentally incapacitated individual, 

or a physically helpless individual;

(3) engage in sexual contact with another if the 

victim is under the age of 14 years, and the 

person performing the sexual contact is at least 

4 years older than the victim;

(4) engage in a sexual act with another if the 

victim is 14 or 15 years old, and the person 

performing the sexual act is at least 21 years 

old; or

(5) engage in vaginal intercourse with another if 

the victim is 14 or 15 years old, and the person 

performing the act is at least 21 years old.

Md. Code Ann., Crim. Law § 3-307 (2002). At the time of 

Alfaro’s offense, “sexual contact” was defined as “an 
5

intentional touching of the victim’s or actor’s genital, anal, 

or other intimate area1 for sexual arousal or gratification, or 

for the abuse of either party.” Md. Code. Ann., Crim. Law § 3-

301(f)(1) (2002).

Because § 3-307 lists alternate sets of elements that 

effectively create multiple versions of the crime of thirddegree sexual offense, reference to the statute alone does not 

identify the set of elements that applied to Alfaro. We are 

thus faced with a “divisible” statute, a circumstance that 

permits us to modify the categorical approach and consult a 

limited universe of “extra-statutory materials . . . to 

determine which statutory phrase was the basis for the 

conviction.” Descamps v. United States, 133 S. Ct. 2276, 2285 

(2013) (internal quotation marks omitted).

The record in this case includes Alfaro’s state-court 

indictment and jury instructions, both of which are within the 

universe of documents that we may consult. See Shepard v. 

United States, 544 U.S. 13, 20-21 (2005). These materials 

establish that Alfaro was convicted of violating § 3-307(a)(1),

but do not further narrow the offense. Under these 

 1 Under Maryland law, “other intimate area” includes the 

buttocks, see Bible v. State, 982 A.2d 348, 358 (Md. 2009), and 

an intentional touching of an intimate area over the clothes 

still amounts to sexual contact, see LaPin v. State, 981 A.2d 

34, 36-37, 45 (Md. Ct. Spec. App. 2009).
6

circumstances, the categorical approach requires us to “consider 

whether the full range of conduct covered by the statutory 

language, including the most innocent conduct proscribed by the 

statute, qualifies” as a predicate offense. United States v. 

Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). Of the various 

offenses identified by the Guidelines as crimes of violence, 

“forcible sex offense” is the only one arguably applicable to 

this case.2 

II.

On appeal, Alfaro concedes that violations of § 3-307(a)(1) 

are “forcible” offenses for purposes of U.S.S.G. § 2L1.2. He 

argues, however, that violations of the Maryland statute do not 

qualify as “sex offenses.” Relying on our decision in DiazIbarra, Alfaro contends that an intent to gratify sexual urges 

is a necessary element of a “sex offense.” As noted above, an 

intent to abuse rather than an intent to gratify sexual urges

can support a conviction under the state statute, and Alfaro 

 2 We reject the government’s argument that a violation 

of § 3-307(a)(1) qualifies as a crime of violence because it 

“has as an element the use, attempted use, or threatened use of 

physical force against the person of another.” U.S.S.G. § 2L1.2 

cmt. n.1(B)(iii). While the first three subsections of § 3-

307(a)(1) all require the use or threatened use of force, the 

final subsection, which merely requires that the offense be 

aided or abetted by another, contains no use-of-force element. 

See Md. Code Ann., Crim. Law § 3-307(a)(1) (2002).
7

therefore argues that his conviction does not qualify as a

forcible sex offense under the categorical approach.

A.

In 2008, the Sentencing Commission resolved a circuit split 

by amending § 2L1.2 to include the parenthetical statement that 

the forcible-sex-offense category includes offenses “where 

consent to the conduct is not given or is not legally valid, 

such as where consent to the conduct is involuntary, 

incompetent, or coerced.” U.S.S.G. app. C, vol. III, Amendment 

722; see United States v. Chacon, 533 F.3d 250, 257 (4th Cir. 

2008) (pre-amendment case holding that a sex offense may be 

“forcible” even without the use of physical force).3 The 

Guideline thus clarifies the circumstances under which a sex 

offense may be considered forcible, but it provides no insight 

on the issue at the heart of this appeal -- the kinds of 

offenses that amount to “sex offenses.”

As previously explained, we answer that question through 

application of the categorical approach, comparing the statutory 

definition of the prior conviction to the definition of the 

 3 In United States v. Shell, 789 F.3d 335 (4th Cir. 

2015), we considered the meaning of “forcible sex offenses” as 

used in U.S.S.G. § 4B1.2, the career-offender guideline. Noting 

that the Sentencing Commission did not amend § 4B1.2 to include 

the parenthetical statement added to § 2L1.2, we held that an 

offense that could be “committed without physical force and 

predicated on legally invalid consent” was not a “forcible sex 

offense” as used in § 4B1.2. Id. at 345-46.
8

generic federal offense -- here, “forcible sex offense.” In 

cases where the enumerated generic offense is a traditional, 

common-law crime, we define the generic federal offense “based 

on how the offense is defined ‘in the criminal codes of most 

states.’” United States v. Peterson, 629 F.3d 432, 436 (4th 

Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 598 

(1990)). “Forcible sex offense,” however, does not describe a 

traditional common-law crime, and the phrase thus does not 

invoke an established, generic structure. Because the phrase is 

a broad and inclusive phrase that could encompass multiple,

divergent offenses in any given state, “it is difficult, if not 

impossible,” to sift through the multitudes of qualifying state 

offenses and identify a consensus set of the minimum elements

necessary to define the category. United States v. Rodriguez, 

711 F.3d 541, 556 (5th Cir. 2013) (en banc) (“As a conceptual 

matter, it is difficult, if not impossible, to identify an 

accurate set of discrete elements that define offense categories 

that do not have a generic structure that is rooted in common 

law. Moreover, wide variations in prohibited conduct under 

state codes make it difficult, if not impossible, to determine 

whether a majority consensus exists with respect to the element 

components of an offense category or the meaning of those 

elements.” (citation omitted)).
9

Although we did not explicitly note the difficulty of 

distilling the elements of non-traditional crimes, this court in 

Chacon did not survey the states’ criminal codes to define the 

“forcible” aspect of “forcible sex offenses,” but instead looked

to the plain, ordinary meaning of the language used by the 

Guidelines. See Chacon, 533 F.3d at 257 (“The term ‘forcible 

sex offense’ is not defined in the Guidelines and thus must be 

accorded its ordinary, contemporary meaning.”). We took the 

same approach in Diaz-Ibarra when defining “sexual abuse of a 

minor,” another enumerated crime of violence that lacks a 

common-law antecedent. See Diaz-Ibarra, 522 F.3d at 348 

(“Because the Sentencing Guidelines do not define the phrase 

[‘sexual abuse of a minor’], we interpret it by employing the 

common meaning of the words that the Sentencing Commission 

used.”); cf. United States v. Rangel-Castaneda, 709 F.3d 373, 

377-79 (4th Cir. 2013) (surveying state laws when determining 

the generic definition of “statutory rape” as used in U.S.S.G. § 

2L1.2).4 This plain-meaning approach is consistent with that of 

 4 While courts have disagreed about whether statutory 

rape is a common-law offense, compare United States v. 

Rodriguez, 711 F.3d 541, 559 (5th Cir. 2013) (en banc), with

United States v. Brooks, 841 F.2d 268, 269 (9th Cir. 1988) (per 

curiam), the crime is of ancient lineage and has a wellunderstood traditional meaning – carnal knowledge of a child 

under the age of consent, see Rodriguez, 711 F.3d at 570-71 

(Graves, J., concurring in part and concurring in the judgment); 

Brooks, 841 F.2d at 269. Looking to the states’ various 

(Continued)
10

other circuits. See United States v. Ramirez-Garcia, 646 F.3d 

778, 783 (11th Cir. 2011) (“For offenses not developed in the 

common law, courts define a generic offense based on the 

ordinary, contemporary, and common meaning of the statutory 

words . . . .” (internal quotation marks omitted)); United 

States v. Trinidad-Aquino, 259 F.3d 1140, 1144 (9th Cir. 2001) 

(where sentencing enhancement turns on enumerated offense that 

is not “a traditional common law crime,” the enumerated offense 

“can only be construed by considering the ordinary, 

contemporary, and common meaning of the language”); United 

States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001) 

(“Martinez-Carillo’s state conviction squarely fits within the 

federal understanding of the phrase ‘sexual abuse of a minor,’ 

which adopts the ordinary, contemporary, and common meaning of 

the words.”); accord Rodriguez, 711 F.3d at 556; United States 

v. Romero–Hernandez, 505 F.3d 1082, 1087 (10th Cir. 2007); 

United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir. 

2005); United States v. Londono-Quintero, 289 F.3d 147, 153 (1st 

Cir. 2002).

 

formulations to determine the generic federal definition of 

statutory rape thus does not present the same difficulties as 

does identifying a consensus set of elements defining “forcible 

sex offense” or “sexual abuse of a minor.”
11

Accordingly, following the approach laid out in Chacon, we 

turn to the plain and ordinary meaning of the Guidelines’ 

language to determine whether a conviction under Md. Code Ann., 

Crim. Law § 3-307(a)(1) qualifies as a “forcible sex offense” 

for purposes of U.S.S.G. § 2L1.2.5

B.

The ordinary construction of the “sex offense” phrase 

suggests that it simply refers to criminal offenses involving 

sexual conduct. See Black’s Law Dictionary (10th ed. 2014) 

(defining “sexual offense” as “[a]n offense involving unlawful 

sexual conduct, such as prostitution, indecent exposure, incest, 

pederasty, and bestiality”); American Heritage College 

Dictionary (3d ed. 1997) (defining “sex” as, inter alia, “[t]he 

sexual urge or instinct as it manifests itself in behavior”). 

While that definition is expansive, the language and history of 

§ 2L1.2 make it clear that “forcible sex offenses” is a broad 

category encompassing a wide range of statutory offenses. After 

all, the Sentencing Commission did not limit its definition of 

“crime of violence” to include only the most serious sex 

 5 In Chacon, we concluded that the word “forcible” did 

not require the use of physical force as it includes compulsion 

effectuated through power or pressure. See Chacon, 533 F.3d at 

257. However, because the defendant did not dispute that his 

Maryland conviction for second-degree sexual offense qualified 

as a “sex offense,” Chacon did not offer a comprehensive 

definition of the full phrase “forcible sex offense.” See id.
12

offenses, such as rape, but instead included all sex offenses 

that are forcibly committed. Moreover, the Commission further 

confirmed the broad reach of the category by amending the reentry Guideline to clarify that a sex offense may be a forcible 

offense even in the absence of physical force and in the 

presence of factual (but legally invalid) consent. See U.S.S.G. 

§ 2L1.2 cmt. n.1(B)(iii).

Indeed, the circuits considering the question have defined 

the “sex offense” portion of “forcible sex offense” very 

broadly. For example, the Fifth Circuit defines “sex offense” 

as an “offense proscribing sexual conduct,” United States v. 

Garza-Guijan, 714 F.3d 332, 334 (5th Cir. 2013), while the Tenth 

Circuit defines it as “an offense involving unlawful sexual 

conduct,” Romero-Hernandez, 505 F.3d at 1087 (internal quotation 

marks and alteration omitted). Similarly, in the Ninth and 

Eleventh Circuits, a “sex offense” is an offense involving a 

“sexual act,” United States v. Quintero-Junco, 754 F.3d 746, 753 

(9th Cir. 2014) or “sexual contact,” United States v. Contreras, 

739 F.3d 592, 597 (11th Cir. 2014).

Alfaro insists, however, that these definitions of “sex 

offense” are too broad. Relying on our decision in Diaz-Ibarra, 

Alfaro contends that an intent to gratify sexual urges is a 

necessary element of a “sex offense.”
13

The question in Diaz-Ibarra was whether the defendant’s 

convictions for attempted child molestation qualified as “sexual

abuse of a minor” and thus a crime of violence under U.S.S.G. § 

2L1.2. (Like the “forcible sex offense” phrase at issue in this 

case, “sexual abuse of a minor” is identified as a crime of 

violence by the commentary to U.S.S.G. § 2L1.2.) Observing that 

the common meaning of the word “sexual” was “of or relating to 

the sphere of behavior associated with libidinal gratification,” 

522 F.3d at 349 (internal quotation marks omitted), the DiazIbarra court defined the phrase “sexual abuse of a minor” as the 

“physical or nonphysical misuse or maltreatment of a minor for a 

purpose associated with sexual gratification,” id. at 352 

(internal quotation marks omitted). Alfaro argues that there is 

no meaningful difference between “sex” and “sexual,” and that 

the same meaning must be applied to both words, particularly 

since the words are used in the same sentence in the Guidelines 

commentary. Accordingly, Alfaro argues that to qualify as a 

forcible sex offense under the Guidelines, the underlying 

offense must require that the prohibited conduct be committed 

for a purpose associated with sexual gratification. And because 

§ 3-307(a)(1) can be violated with an intent to abuse rather 

than an intent to gratify sexual urges, Alfaro contends that his 

conviction does not qualify as a forcible sex offense. We

disagree.
14

While the words “sex” and “sexual” may have similar 

meanings in certain contexts, the Diaz-Ibarra court was defining 

the phrase “sexual abuse of a minor,” while we are defining the 

phrase “forcible sex offense.” Those phrases are very 

different, and those differences require different 

interpretations of “sex” and “sexual.” See Yates v. United 

States, 135 S. Ct. 1074, 1082 (2015) (“[I]dentical language may 

convey varying content when used in different statutes, 

sometimes even in different provisions of the same statute.”). 

“Sexual abuse of a minor,” the phrase at issue in DiazIbarra, is a “broad” phrase “capturing physical or nonphysical 

conduct,” United States v. Perez-Perez, 737 F.3d 950, 953 (4th 

Cir. 2013), and it is the sexual-gratification element that 

polices the line between lawful and unlawful conduct. Indeed, 

as the court made clear in Diaz-Ibarra, the intent to gratify 

sexual urges is central to the offense of sexual abuse of a 

minor: “The clear focus of the phrase [‘sexual abuse’] is on 

the intent of the abuser -- sexual gratification -- not on the 

effect on the abused. However one styles it, ‘sexual abuse’ is 

an intent-centered phrase; the misuse of the child for sexual 

purposes completes the abusive act.” Id. at 350. The court in 

Diaz-Ibarra thus did not hold that the word “sexual” must always 

and in all circumstances be defined to include an intent to 

gratify sexual urges; it held that an intent to gratify sexual 
15

urges is central to and therefore is part of the ordinary 

meaning of the phrase “sexual abuse.” See id. at 349 

(explaining that the court must “consider the phrase as a whole 

to arrive at its meaning”).

An intent to gratify sexual urges, however, is not central 

to the category of offenses qualifying as “forcible sex 

offenses.” Although this circuit has not previously formulated 

a comprehensive definition of “forcible sex offense,” we have 

noted that the phrase is “intended to connote rape or other 

qualifying conduct.” Rangel-Castaneda, 709 F.3d at 380; accord

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th 

Cir. 2007) (“[R]ape is a ‘sex offense,’ as the term is commonly 

understood.”). Thus, however “forcible sex offense” is defined, 

that definition must, at the very least, be broad enough to 

include rape in its scope. While there is variation in the 

states’ definitions of rape (however labeled), not a single 

state includes a sexual-gratification element when defining the 

most serious forms of the offense.6 Because the intent to 

 6 See Ala. Code § 13A-6-61 (first-degree rape); Alaska 

Stat. Ann. § 11.41.410 (first-degree sexual assault); Ariz. Rev. 

Stat. Ann. § 13-1406 (sexual assault); Ark. Code Ann. § 5-14-

103(a) (rape; no sexual-gratification element if intercourse 

involved); Cal. Penal Code § 261(a) (rape); Colo. Rev. Stat. 

Ann. § 18-3-402(1)(a) (sexual assault; no sexual-gratification 

element if penetration involved); Conn. Gen. Stat. Ann. § 53a70(a)(1) (first-degree sexual assault); Del. Code Ann. tit. 11, 

§ 773 (first-degree rape); Fla. Stat. Ann. § 794.011 (sexual 

(Continued)
16

gratify sexual urges is simply not relevant to the most serious 

forms of the paradigmatic forcible sex offense, we cannot 

 

battery); Ga. Code Ann. § 16-6-1 (rape); Haw. Rev. Stat. Ann. § 

707-730 (first-degree sexual assault); Idaho Code Ann. § 18-6101 

(rape); 720 Ill. Comp. Stat. Ann. 5/11-1.20 (criminal sexual 

assault); Ind. Code Ann. § 35-42-4-1 (rape); Iowa Code Ann. § 

709.1 (sexual abuse); Kan. Stat. Ann. § 21-5503 (rape); Ky. Rev. 

Stat. Ann. § 510.040 (first-degree rape); La. Stat. Ann. § 14:41 

(rape); Me. Rev. Stat. tit. 17-A, § 253 (gross sexual assault); 

Md. Code Ann., Crim. Law § 3-303 (first-degree rape); Mass. Gen. 

Laws Ann. ch. 265, § 22 (rape); Mich. Comp. Laws Ann. § 750.520b 

(first-degree criminal sexual conduct); Minn. Stat. Ann. § 

609.342 (first-degree criminal sexual conduct; no sexualgratification element if sexual penetration involved); Miss. 

Code. Ann. § 97-3-95 (sexual battery); Mo. Ann. Stat. § 566.030 

(first-degree rape); Mont. Code Ann. § 45-5-503 (sexual 

intercourse without consent); Neb. Rev. Stat. Ann. § 28-319 

(first-degree sexual assault); Nev. Rev. Stat. Ann. § 200.366 

(sexual assault); N.H. Rev. Stat. Ann. § 632-A:2 (aggravated 

felonious sexual assault); N.J. Stat. Ann. § 2C:14-2(a) 

(aggravated sexual assault); N.M. Stat. Ann. § 30-9-11 (criminal 

sexual penetration); N.Y. Penal Law § 130.35 (first-degree 

rape); N.C. Gen. Stat. Ann. § 14-27.21 (first-degree forcible 

rape); N.D. Cent. Code Ann. § 12.1-20-03 (gross sexual 

imposition); Ohio Rev. Code Ann. § 2907.02 (rape); Okla. Stat. 

Ann. tit. 21, § 1111 (rape); Or. Rev. Stat. Ann. § 163.375 

(first-degree rape); 18 Pa. Stat. and Cons. Stat. Ann. § 3121 

(rape); 11 R.I. Gen. Laws Ann. § 11-37-2 (first-degree sexual 

assault); S.C. Code Ann. § 16-3-652 (criminal sexual conduct); 

S.D. Codified Laws § 22-22-1 (rape); Tenn. Code Ann. § 39-13-502 

(aggravated rape); Tex. Penal Code Ann. § 22.021 (aggravated 

sexual assault); Utah Code Ann. § 76-5-402 (rape); Vt. Stat. 

Ann. tit. 13, § 3252 (sexual assault); Va. Code Ann. § 18.2-61 

(rape); Wash. Rev. Code Ann. § 9A.44.040 (first-degree rape; no 

sexual-gratification element if vaginal intercourse involved); 

W. Va. Code Ann. § 61-8B-3 (first-degree sexual assault; no 

sexual-gratification element if sexual intercourse involved); 

Wis. Stat. Ann. § 940.225 (first-degree sexual assault; no

sexual-gratification element if intercourse involved); Wyo. 

Stat. Ann. § 6-2-302 (first-degree sexual assault; no sexualgratification element if intercourse involved).
17

conclude that an intent to gratify sexual urges is part of the 

ordinary meaning of “forcible sex offense.” 

Moreover, since no state requires proof of an intent to 

gratify sexual urges for a rape conviction, accepting Alfaro’s 

argument would exclude all convictions for the most serious of 

all forcible sex offenses from the definition of “forcible sex 

offense,” while at the same time permitting many less-serious 

crimes to be so classified.7 We decline to endorse a definition 

that would lead to such illogical results.8 Cf. Voisine v. 

 7 In many states, less serious sexual offenses -- those 

involving touching rather than penetration, for example -- do 

include the intent to gratify sexual urges as an element of the 

offense. See, e.g., Ind. Code Ann. § 35-42-4-8 (sexual 

battery); Kan. Stat. Ann. § 21-5505 (sexual battery); Ky. Rev. 

Stat. Ann. §§ 510.110 & 510.010(7) (sexual abuse); Neb. Rev. 

Stat. Ann. §§ 28-320 & 28-318(5) (second- and third-degree 

sexual assault); N.C. Gen. Stat. Ann. § 14-27.33 (sexual 

battery); N.D. Cent. Code Ann. §§ 12.1-20-07 & 12.1-20-02(5) 

(sexual assault); Or. Rev. Stat. Ann. §§ 163.427 & 163.305(6) 

(sexual abuse); 18 Pa. Stat. and Cons. Stat. Ann. §§ 3126 & 3101 

(indecent assault); 11 R.I. Gen. Laws Ann. §§ 11-37-4 & 11-37-

1(7) (second-degree sexual assault); Tenn. Code Ann. §§ 39-13-

505 & 39-13-501(6) (sexual battery); Va. Code Ann. §§ 18.2-67.4 

& 18.2-67.10(6) (sexual battery); W. Va. Code Ann. §§ 61-8B-7 & 

61-8B-1 (6) (sexual abuse).

8 Alfaro suggests that rape offenses predicated on 

sexual intercourse would qualify as forcible sex offenses 

because intercourse requires “an erect penis, which necessarily 

involves sexual gratification.” Brief of Appellant at 21. The 

categorical approach, however, is concerned only with the 

elements of the underlying offense, not the manner in which the 

offense was actually committed. See Mathis v. United States, 

136 S. Ct. 2243, 2248 (2016) (“[T]he categorical approach . . . 

focus[es] solely on whether the elements of the crime of 

conviction sufficiently match the elements of [the] generic 

(Continued)
18

United States, 136 S. Ct. 2272, 2280 (2016) (addressing statute 

barring possession of firearms by those convicted of a 

“misdemeanor crime of violence” and rejecting definition of that 

phrase that “risk[ed] rendering [the statute] broadly 

inoperative in . . . 35 jurisdictions”).

Accordingly, we reject Alfaro’s argument that to qualify as 

a forcible sex offense under U.S.S.G. § 2L1.2, the underlying 

offense must include as an element the intent to gratify sexual 

urges. Instead, we join the other circuits addressing the issue 

and hold that, for purposes of the re-entry Guideline, a “sex 

offense” is an offense involving sexual conduct with another 

person. See Quintero-Junco, 754 F.3d at 753; Contreras, 739 

F.3d at 597; Garza-Guijan, 714 F.3d at 334; Romero-Hernandez, 

505 F.3d at 1087. And as the Guidelines commentary itself makes 

clear, a sex offense is “forcible” if it is not consensual. See

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (explaining that “forcible sex 

offenses” includes offenses “where consent to the conduct is not 

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

conduct is involuntary, incompetent, or coerced”). While this 

 

[offense and] ignor[es] the particular facts of the case.”). 

Thus, even assuming that an intent to gratify sexual urges is 

factually present in most rape cases, the absence of a sexualgratification element would prevent rape offenses from 

qualifying as forcible sex offenses under Alfaro’s proposed 

definition. 
19

definition is broad, its breadth is compelled by the expansive 

language chosen by the Sentencing Commission -- language that, 

in our view, provides no principled basis for us to narrow the 

category of qualifying offenses. 

C.

Having defined the relevant phrase, we turn now to the 

ultimate question in this case: Whether the least culpable 

version of the crime defined by § 3-307(a)(1) -- sexual contact 

while aided or abetted by another -- categorically qualifies as 

a “forcible sex offense” and thus a “crime of violence” under 

U.S.S.G. § 2L1.2.

We believe that question must be answered in the 

affirmative. All forms of the offense as charged to the jury 

require nonconsensual sexual contact, and the jury was thus 

required to find that Alfaro engaged in sexual contact without 

consent in order to convict him. Accordingly, the district 

court did not err by treating Alfaro’s Maryland conviction as a 

“forcible sex offense” under U.S.S.G. § 2L1.2(b)(1)(A). See

Quintero-Junco, 754 F.3d at 753 (statute prohibiting nonconsensual sexual contact with person over the age of 15 and 

defining “sexual contact” as the direct or indirect touching of 

“any part of the genitals, anus or female breast” “fits 

comfortably within the broad definition of forcible sex 

offense”); United States v. Diaz–Corado, 648 F.3d 290, 293 (5th 
20

Cir. 2011) (per curiam) (state statute prohibiting the nonconsensual, through-clothing “touching of the victim’s intimate 

parts . . . for the purposes of sexual arousal, gratification, 

or abuse” constitutes a forcible sex offense under U.S.S.G. §

2L1.2); Romero-Hernandez, 505 F.3d at 1087-88 & n.4 (conviction 

under statute prohibiting non-consensual touching, even through 

clothing, of “victim’s intimate parts” for “purposes of sexual 

arousal, gratification, or abuse” qualifies as forcible sex 

offense).

III.

For the foregoing reasons, we find no error by the district 

court, and we hereby affirm Alfaro’s sentence.

AFFIRMED