IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40427

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE JUAN CARRILLO-ROSALES, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:11-CR-1963-1

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit

Judges.

PER CURIAM:*

In certain circumstances, the Federal Sentencing Guidelines instruct a

district court to increase a defendant’s offense level by sixteen points if he has

previously been convicted of a “crime of violence.” The district court applied that

enhancement when sentencing Jose Juan Carrillo-Rosales, who had earlier been

convicted of third-degree rape. Carrillo contends, for the first time on appeal,

United States Court of Appeals

Fifth Circuit

F I L E D

July 22, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40427

that the district court erred by applying the enhancement. Perceiving no

reversible error, we AFFIRM. 

I.

Carrillo is a citizen of Mexico. He came to the United States unlawfully

when he was three years old. At twenty, he committed two counts of third-degree

rape, a crime under Washington state law.1 Carrillo pleaded guilty to both

counts. In his written “Statement of Defendant on Plea of Guilty,” he admitted

that he “engaged in sexual intercourse with a woman who was not [his] spouse

who did not have the legal ability to give consent due to her age of 13 years at

the time.” Soon thereafter, he was deported to Mexico. 

Carrillo reentered the United States unlawfully. Immigration authorities

“found” him in Texas over a decade later.2 He pleaded guilty to violating

8 U.S.C. § 1326, which proscribes being “found in” the United States after

unlawful reentry.3 This appeal concerns only his sentence. 

In anticipation of sentencing, a probation officer prepared a Presentence

Investigation Report (PSR). The PSR advised that Carrillo’s base offense level 

should be increased from 8 to 24 because he “was deported after sustaining a

felony conviction for a crime of violence”—namely, third-degree rape.4 The

district court agreed and sentenced Carrillo to 41 months of imprisonment, the

very bottom of his Guidelines range. Carrillo appeals, arguing that the district

court should not have applied the crime-of-violence enhancement.

1 See WASH. REV. CODE § 9A.44.060.

2 See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (discussing

“found in” offenses).

3 See 8 U.S.C. § 1326(a) and (b); see also 6 U.S.C. §§ 202(3) and (4), 557.

4 See U.S.S.G. § 2L1.2(b)(1)(A)(ii).

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II.

The government urges that Carrillo waived any claim of error. We need

not engage this threshold dispute over preservation of error. By recent decisions

of the Supreme Court and this Court, there was no error and the judgment must

be affirmed.

As relevant here, section 2L1.2(b)(1)(A)(ii) of the Federal Sentencing

Guidelines instructs a district court to increase a defendant’s offense level by 16

“[i]f the defendant previously was deported . . . after . . . a conviction for a felony

that is . . . a crime of violence.”5 An application note defines “crime of violence”

to mean “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.6

As this commentary is not “plainly erroneous or inconsistent with the

guideline[],” we are bound to follow it.7 Accordingly, there are two ways an

offense can be a crime of violence. First, it can be one of the enumerated

offenses—such as a forcible sex offense, statutory rape, or sexual abuse of a

minor. Second, it can satisfy the catch-all provision, by having “as an element

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

person of another.” If the offense of which Carrillo was convicted falls into either

category, the district court did not err—plainly or otherwise.

5 U.S.S.G. § 2L1.2(b)(1)(A)(ii).

6

Id. § 2L1.2 cmt. n.1(B)(iii).

7 United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc).

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This case concerns only enumerated offenses.

8The government argues that

Carrillo’s third-degree-rape offense qualifies as “statutory rape” and as a

“forcible sex offense[].” Carrillo does not dispute that—at twenty years old—he

had sex with a thirteen-year-old girl. He does not dispute that—at thirteen years

old—she was legally incapable of consenting to their sexual contact. But Carrillo

does dispute the government’s use of that factual information, arguing that we

may look at the circumstances of his offense only to determine which portion of

Washington’s third-degree-rape law he violated. If that portion of the law can be

violated in a way that is not “statutory rape” or a “forcible sex offense[],” he

argues, then he was not convicted of those enumerated offenses.

After the parties completed their briefing, our en banc Court clarified how

to determine whether an offense of conviction qualifies as an enumerated

offense.9 It explained:

First, we identify the undefined offense category that triggers the

federal sentencing enhancement. We then evaluate whether the

meaning of that offense category is clear from the language of the

enhancement at issue or its applicable commentary. If not, we

proceed to step two, and determine whether that undefined offense

category is an offense category defined at common law, or an offense

category that is not defined at common law. Third, if the offense

category is a non-common-law offense category, then we derive its

“generic, contemporary meaning” from its common usage as stated

in legal and other well-accepted dictionaries. Fourth, we look to the

elements of the state statute of conviction and evaluate whether

those elements comport with the generic meaning of the enumerated

offense category.10

8 The government does not contend otherwise.

9 This decision is controlling, since we assess whether an error is plain based on the law

in effect at the time of our decision—not the district court’s decision. See Henderson v. United

States, 133 S. Ct. 1121, 1130–31 (2013); United States v. Escalante-Reyes, 689 F.3d 415, 418

(5th Cir. 2012) (en banc).

10 United States v. Rodriguez, 711 F.3d 541, 544 (5th Cir. 2013) (en banc).

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In Descamps v. United States,

11

the Supreme Court reinforced our focus on “the

elements of the state statute of conviction.”12It explained that the elements of

a state-law offense determine what a defendant was actually convicted of, while

the facts underlying that offense demonstrate only that a defendant may have

“committed [an offense], and so hypothetically could have been convicted under

a law criminalizing that conduct.”13 Although Descamps interpreted a different

provision of law (and did so with Sixth-Amendment concerns in the background),

its textual analysis applies here, too. Moreover, Descamps extended the line of

cases beginning with Taylor v. United States,

14

the precise line from which our

en banc court in Rodriguez derived its approach.15 Our en banc court did

opine—pre-Descamps—that it was “skeptical that Taylor and its progeny lead

to reasonable results if lower courts must disregard facts that show that the

defendants’ conduct, in essence, constituted a crime of violence.”16 Reasonable

or not, Descamps makes pellucidly clear that while conduct can be “in essence”

a crime of violence, a conviction is a crime of violence (or not) based only on its

underlying elements.17

Of course, if the state-law statute of conviction “sets out one or more

elements of the offense in the alternative—for example, stating that burglary

involves entry into a building or an automobile,” we may consult “a limited class

11 No. 11-9540, 2013 WL 3064407 (2013).

12 Rodriguez, 711 F.3d at 544.

13 Descamps, 2013 WL 3064407, at *9.

14

495 U.S. 575 (1990).

15 See, e.g., Rodriguez, 711 F.3d at 544, 549, 553–56; see also id. at 553 (“We adopt this

approach based on our close review of Taylor.”).

16

Id. at 561 n.25.

17 Cf. U.S.S.G. § 2L1.2(b)(1)(A)(ii) (asking whether “the defendant previously was

deported . . . after . . . a conviction for a felony that is a crime of violence” (emphasis added)).

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of documents, such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior conviction.”18 But our focus

is always on the applicable elements of the offense of conviction. With that in

mind, we turn to Carrillo’s conviction.

Carrillo was convicted under Washington’s third-degree rape statute. At

the time of his conviction, that statute was violated when:

(1) . . . under circumstances not constituting rape in the first or

second degrees, [a] person engage[d] in sexual intercourse with

another person, not married to the perpetrator:

(a) Where the victim did not consent as defined in RCW

9A.44.010(7), to sexual intercourse with the perpetrator

and such lack of consent was clearly expressed by the

victim’s words or conduct, or

(b) Where there [wa]s threat of substantial unlawful

harm to the property rights of the victim.19

As set out in RCW 9A.44.010(7), “[c]onsent means that at the time of the act of

sexual intercourse or sexual contact there are words or conduct indicating freely

given agreement to have sexual intercourse or sexual contact.”20

The parties rightly agree that our focus is on paragraph (1)(a).21 Per our

recent en banc opinion, we must first identify the elements of the enumerated

offense at issue (steps 1–3) and then “look to the elements of the state statute of

conviction and evaluate whether those elements comport with the generic

18 Descamps, 2013 WL 3064407, at *1; see also Rodriguez, 711 F.3d at 549 n.8

(endorsing this “modified categorical approach”).

19 WASH. REV. CODE § 9A.44.060.

20

Id. § 9A.44.010(7).

21 We may consider the document accompanying Carrillo’s plea to determine whether

he violated paragraph (1)(a) or (1)(b). Cf. Shepard v. United States, 544 U.S. 13, 20–21 (2005)

(authorizing consideration of “a transcript of [a] plea colloquy[,] . . . written plea agreement

presented to the court, or . . . a record of comparable findings of fact adopted by the defendant

upon entering the plea”). 

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meaning of the enumerated offense category.”22

“If any set of facts would support

a conviction without proof of [a] component, then the component most decidedly

is not an element—implicit or explicit—of the crime.”23

We begin with statutory rape. A person commits statutory rape only when

he has sexual contact with a person under the age of consent (as that age is

defined by state statute).24 Paragraph (1)(a) can be violated regardless of the age

of the victim. Accordingly, the age of the victim is not an element of a paragraph

(1)(a) violation, and Carrillo was not convicted of statutory rape—even if, to

borrow a phrase from Descamps, he “hypothetically could have been convicted

under a law criminalizing that conduct.”25 Thus, Carrillo’s conviction qualifies

as a crime of violence only if it is a forcible sex offense.

“[F]orcible sex offenses” include offenses in which “consent to the conduct

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

involuntary, incompetent, or coerced.”

26This language is clear (as relevant here),

so we need only determine whether the elements of Washington’s third-degree

rape statute entail such an offense. We hold that they do. A person is guilty of

third-degree rape only if his victim clearly expresses her lack of consent.

27 If a

victim clearly expresses that she does not consent, then her “consent to the

22 Rodriguez, 711 F.3d at 544.

23 Vargas-Duran, 356 F.3d at 605.

24 See Rodriguez, 711 F.3d at 561–62.

25

2013 WL 3064407, at *9.

26 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

27 See WASH.REV. CODE § 9A.44.060(1)(a). Washington does, of course, define “consent”

to mean a lack of “words or conduct indicating freely given agreement.” Id. § 9A.44.010(7).

Carrillo could have argued that a person could “consent” without expressing “consent”—and

that the possibility of valid, unexpressed consent means that the elements ofthird-degree rape

do not entail a forcible sex offense. This possibility is of no moment, however, as Washington

requires that the lack of consent itself be clearly expressed.

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conduct is not given.”

28Thus, because the third-degree-rape statute requires that

“consent to the conduct is not given,” a violation of that statute is a forcible sex

offense within the meaning of the Guidelines.29 Consequently, the district court

was correct to apply the crime-of-violence enhancement.30

Carrillo contends that he is not guilty of a forcible sex offense because his

conviction did not require proof of“coercion.” The crime-of-violence enhancement

is appropriate so long as a conviction entails a forcible sex offense—and forcible

sex offenses come in many forms. If a conviction requires proof that “consent to

the conduct is . . . incompetent,” it need not also require proof that, for example,

“consent to the conduct is coerced.” Put differently, whether a statute requires

coercion is irrelevant so long as its elements require proof of a forcible sex

offense—and Washington’s third-degree rape statute does precisely that.31 

* * * 

As Carrillo’s third-degree rape conviction was properly classified as a

crime of violence, we AFFIRM.

28 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

29 See id.

30 Cf. United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. 2013) (holding that a

violation of Washington’s third-degree rape statute was a crime of violence). We take no

position on whether Gallegos-Galindo’s rationale is consistent with Rodriguez.

31 Carrillo also argues that Washington law determines “consent” from the perspective

of the victim, and appears to contend that the Guidelines require consideration of only the

perpetrator’s perspective. In other words, Carrillo may be asking us to read “consent is not

given”—the phrase in the Guidelines’ commentary—to mean that “consent is understood by

the perpetrator not to be given.” Even if Carrillo is making this argument, it lacks force: it is

not plain error to conclude that “consent is not given” when a defendant mistakenly believes

that someone consents—but she does not, in fact, do so.

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