### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40427

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JOSE JUAN CARRILLO-ROSALES, Defendant - Appellant

A ppeal 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, C i r c uit Judges. PER CURIAM: * In certain circumstances, t h e F ederal Sentencing Guidelines instruct a district court to i ncrease a defenda nt’s offense l e vel by sixteen points if he has previously been convicted of a “crime of violence.” The d istrict court applied that enhancement w hen s entencing Jose Ju a n C a r rillo-Rosales, who had e arlier been convicted of third-d e g r e e rape. Carrillo contends, for the first time on appeal, U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40427 Document: 00512315128 Page: 1 Date Filed: 07/22/2013No. 12-40427

that t he d istrict c ourt erred by applying the enhancement. Perceiving no reversible error, we AFFIRM.

I. Carrillo is a citizen of M exico. He came to t he United Stat e s u n l a w f ully when he was three years old. At twenty, he committed two c ounts of third-degree
rape, a crime under Washington state law. 1 Carrillo pleaded guilty to both counts. In his written “Statement of Defendant o n Plea of G u i lty,” he admitted that he “engaged in sexual i ntercourse w ith a w o man w ho was not [his] spouse who did not have t h e l e g al 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 S tates u nlawfully. Immigration authorities “found” him in Texas over a decade later. 2 He pl e a d e d guilty to violating 8 U.S.C. § 1326, which proscribes being “ found in” the United S tates after unlawful reentry. 3 This appeal concerns only his sentence. In anticipation of s entencing, a probation officer prepared a P resentence Investigation Report (PSR). The PSR advised that Carrillo’s b ase offense level should b e increased f

rom 8 to 24 becau s e h e “was deported after sustaining a felony conviction for a crime of violence”—namely, t h i r d

- d e gree rape. 4 The district court agreed and sentenced Carrillo t o 41 months of imprisonment, the
very bottom of his Guidelines range. Carrillo appeals, a rguing that the district court should not have applied the crime-of-violence enhancement.

1 See W A S H

. R E V

. C ODE § 9A. 44. 060.

2 See U ni t ed Sta t es v . Sa nta na - Ca stel l a no , 74 F. 3d 593, 598 ( 5th Cir. 1996) ( d is cus s ing “f ound in” of

f ens es )

.
3 See 8 U. S. C. § 1326( a) and ( b) ; see a l so 6 U

. S. C

. §§ 202( 3) and ( 4) , 557.

4 See U .S. S. G

. § 2L1. 2( b) (1) ( A) ( ii)

. 2 Case: 12-40427 Document: 00512315128 Page: 2 Date Filed: 07/22/2013No. 12-40427 II. The government urges that Carrillo waiv e d a n y claim of error. We need not engage this threshold dispute over preservation of e rror. By recent decisions of the Supreme Court and this Court, there was no e rror and t h e judgment must be affirmed. As relevant here, sectio n 2 L1.2(b)(1)(A)(ii) of t he Federal Sentencing Guidelines instructs a district court to increase a defendant’s offense level by 16 “[i]f the d efendant 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:” M u r d e r , m a n s l a u g h t e r , kidnapping, aggravated assault, fo r c i b l e s e x offenses (including where consent to the conduct is not given o r is not legally valid, such as where c o nsent to the conduc t i s involuntary, i ncompetent, or coerced), statutory rape, s exual abuse of a m i nor, robbery, a rson, extortion, extortionate extension of credit, burglary of a dwelling, or a ny other offense u n der federal, state, or local law t hat has a s 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 i nconsistent with the guideline[],” we are bound to follow it. 7 Accordin g l y , t h e r e are two ways an offense can be a crime of violence. First, it can be one of t h e enumerated

o f f e n s es—such as a forcible sex offense, statutory rape, or sexual abuse o f a minor. Second, it c an satisfy the catch-all provision, by having “ a s a n element the use of force, attempted use, or threatened use of physical force against the
person of another.” If the offense of w h ich 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 cm t. n. 1( B ) ( iii)

.
7 U ni ted Sta tes v . V

a rga s- D ura n , 356 F. 3d 598, 602 ( 5th Cir. 2004) (en banc)

.

3 Case: 12-40427 Document: 00512315128 Page: 3 Date Filed: 07/22/2013No. 12-40427

This c a s e c o n c e r n s o n l y e n u m e r a t e d o f f e n s e s . 8 T h e g o v e r nment argues that C a r r illo’s third-degree-rape offense qualifies as “statutory rape” and as a “forcible sex offense[].” Carrillo does not dispute t hat—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 t o their s exual contact. B ut Carrillo does dispute the government’s use of that factual information, arguing that we may look at t he 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 w ay that is not “statutory rape” or a “forcible sex o f f e nse[],” he argues, then he was not convicted of those enumerated offenses. After the parties c ompleted their briefing, our e n banc C ourt c larified how to determine whether a n offense of conviction q u alifies a s a n enumerated offense. 9 It explained: First, we identify the undefined offense category that t r i ggers t h e federal sentencing e n h a n c ement. We then evaluate whether t h e meanin g o f t h a t o f

fense category is c lear f rom the l anguage o f t h e enhancement at issue or its a p p l i cable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense c ategory defined at common law, or a n offense c a t e g o r y that is n ot defined at common law. T hird, if the offense category i s a n on-common-law offense category, then we derive its “generic, contemporary meaning” from its common u sage as stated in legal and other well-accepted dictionaries. Fourth, we look to t h e elements of th e s tate statute of conviction and evaluate whether t h o s e e l e m e n t s c o m port with the generic meaning of the e numer a t e d offense category. 1 0

8 The governm ent d oes not contend otherw is e.

9 This d ecis ion is controlling, s ince w e as s es s whether an error is plain bas ed on the law in ef f ect at the tim e of our d ecis ion— not the d is trict court’s d ecis ion. See H enderson v . U

ni ted Sta tes , 133 S. C t. 1121, 1130–31 ( 2013) ; U ni ted Sta tes v . Esca l a nte- Reyes , 689 F. 3d 415, 418 ( 5th Cir. 2012) ( en banc)

.

1 0 U ni ted Sta tes v . Rodri guez , 711 F. 3d 541, 544 (5th Cir. 2013) ( en banc)

. 4 Case: 12-40427 Document: 00512315128 Page: 4 Date Filed: 07/22/2013No. 12-40427

In Descamps v. United States , 1 1 the Supreme Court reinforced our focus on “the elements of the state statute of conviction.” 1 2 It e xpla i ned that the e lements of

a state-law offense determine what a defendant w a s actually convicted of, while the facts underlying that offense demonstrate only that a defendant may have

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

a law c riminalizing t hat conduct.” 1 3 Although Descamps interpreted a different provision of law (and did so with Sixth-Amendment concerns i n t h e b ackground), its textual analysis applies here, too. Moreover, Descamps extended the line of

cases b eginning with Taylor v . U nited S tates , 1 4 the p recise line from which our

en banc court in Rodriguez d e r i v e d its approach. 1 5 O ur e n b anc court did

o p ine—pre- Descamps —that it was “skeptical that Taylor and its p r ogeny l e a d to reasonable results if lower courts must disregard facts that s h o w t h a t the defendants’ c onduct, in essence, constituted a crime of violence.” 1 6 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. 1 7 Of cours e , i f the state-law statute o f c onviction “sets out one or more
e lements of the offense i n the alternative—for example, stating that bur g l a r y involves entry into a building or an automobile,” we may consult “ a limited class

1 1 N o. 11- 9540, 2013 WL 3064407 ( 2013)

.
1 2 Rodri guez , 711 F. 3d at 544.

1 3 D esca m

p s , 2013 WL 3064407, at *9.

1 4 495 U

. S. 575 (1990)

.
1 5 See, e. g. , Rodri guez , 711 F

. 3d at 544, 549, 553–56; see al so i d. at 553 ( “We ad op t this ap p roach bas ed on our clos e review of Ta yl or . ”)

.
1 6 I d. at 561 n. 25.

1 7 Cf

. U

. S. S. G

. § 2L1. 2( b ) ( 1 ) ( A ) ( ii) ( as k ing w hether “the def end ant p revious ly w as d ep orted

. . . af

ter

. . . a conv i cti on f

or a f elony that is a crim e of violence” ( em p has is ad d ed ))

. 5 Case: 12-40427 Document: 00512315128 Page: 5 Date Filed: 07/22/2013No. 12-40427

of documents, s uch as indictment s and jury i nstructions, to determine which alternative formed the b asis of the defendant’s prior conviction.” 1 8 But o ur focus is always on t he applicable e lements of the o f fense of c onviction. 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)

. . . u nder circumstances not consti t u t i n g rape in the first or second d egrees, [a] person engage[d] i n sexual intercourse with another person, not married to the perpetrator: (a) Where the victim did n ot consent as defined in RCW 9A.44.010(7), t o sexual in t e r c o u r s e w i th the perpetrator and s uch lack of consen t w a s clearly expressed by t h e victim’s words or conduct, or (b) Where there [wa]s t h r e at o f substantial unlawful harm to the property rights of the victim. 1 9 As set out in RCW 9A.44.010(7), “[c]onsent means that at t he time of t he act of sexual intercourse or s exual contact there are w ords or conduct i ndicating freely given agreement to have sexual intercourse or sexual contact.” 2 0 The parties rightly agree t hat our f o c us is on paragraph (1)(a). 2 1 Per our recent en banc opinion, we must first identify the elemen t s o f t he enumerated offense at i ssue (steps 1–3) and then “look to the elements o f the s tate statute of convi ction and evaluate whether those elements comport with the generic

1 8 D esca m

p s , 2013 WL 3064407, at *1; see a l so Rodri guez , 711 F. 3d at 549 n. 8 ( end ors ing this “m od if ied categorical ap p roach”)

.
1 9 W A SH

. R E V

. C ODE § 9A. 44. 060.

2 0 Id. § 9A. 44. 010( 7)

.
2 1 We m ay cons id er the d ocum ent accom p anying Carrillo’s p lea to d eterm ine w hether he violated p aragrap h ( 1) ( a) or ( 1) ( b)

. Cf

. Shep a rd v . U

ni ted Sta tes , 544 U. S. 13, 20–21 ( 2005) ( authorizing cons id eration of “a trans crip t of [ a] p lea c o l loquy[ ,]

. . . w ritten plea agreem ent p res ented to the court, or . . . a record of com p arable f ind ings of f

act ad op ted by the d ef end ant up on entering the p lea”)

. 6 Case: 12-40427 Document: 00512315128 Page: 6 Date Filed: 07/22/2013No. 12-40427

meaning of the e numerated offense category.” 2 2 “If a ny 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.” 2 3 We begin with statutory rape. A person commits statutory rape only when he has sexual contact with a pe r s o n under the age of consent (as that age is defined by state statute). 2 4 Paragraph (1)(a) can be v iolated regardless of the age of t he v ictim. Accordingly, the age of the victim is not an element o f a paragraph (1)(a) violatio n , a n d Carrillo was not convicted of s tatutory rape—even if, to borrow a p h r a se from Descamps , he “hypothetically could have b een convicted under a law criminal i z i n g t hat c onduct.” 2 5 T hus, 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 i s n o t l e g ally valid, such as w here consent to t he conduct is involuntary, incompete n t , o r c o e r c e d

. ” 2 6 This language is clear (as relevant here),

so we need o nly determine whether the elements of W ashington’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 e xpresses her lack of conse n t

. 27 I f a victim clearly e xpresses t hat she does n o t c o n s ent, then her “consent to the

2 2 Rodri guez , 711 F. 3d at 544.

2 3 V a rga s- D ura n , 356 F. 3d at 605.

2 4 See Rodri guez , 711 F. 3d at 561–62.

2 5 2013 WL 3064407, at *9.

2 6 U

. S. S. G. § 2L1. 2 cm t. n. 1( B) ( iii)

.
2 7 See W A SH

. R E V

. C O DE § 9A. 44. 060( 1) ( a)

. Was hington d oes , of cours e, d ef ine “cons ent” to mean a l a ck of “w ord s or cond uct ind icating f reely given agreem ent. ” Id. § 9A. 44. 010( 7)

. Carrillo could have argued that a p ers on could “cons ent” w ithout exp ressi ng “cons ent”— and that the p os sibility of v alid , unexp res s ed cons ent m eans that the elem ents of third

- d egree rap e d o not entail a f

orcible s ex of

f ens e. This p os s ibility is of no m om ent, how ever, as Was hington requires that the lack of cons ent its elf be clearly exp res s ed

.

7 Case: 12-40427 Document: 00512315128 Page: 7 Date Filed: 07/22/2013No. 12-40427

conduct i s n o t g i v e n . ” 2 8 T h u s , b e c ause the third-degree-rape statute requires that “consent to the conduct is n ot given,” a v iolation o f that statute i s a forcible sex offense within the meaning of the Guidelines. 2 9 Consequently, the district court was correct to apply the crime-of-violence enhancement. 3 0 Carrillo c ontends t hat he is not guilty of a f orcible sex offense because his conviction did not r e q u i r e p r o o f o f “ c o e r c i on.” The crime-of-violence enhancement is appropriate so long as a conviction e ntails a forcible sex offense—and forcible

sex o ffenses come i n many forms. If a conviction requires proof t hat “consent to the conduct is

. . . incompetent,” it need not also require proof that, for e xample, “consent to the conduct is coerced.” Put differently, whether a statute requires coercion is irrelevant s o l ong as its elements require p r o o f o f a forcible sex offense—and Washington’s third-degree rape statute does precisely that. 3 1

* * * As Carrillo’s third-degree rape conv i c t ion was properly classified as a crime of violence, we AFFIRM.

2 8 U

. S. S. G. § 2L1. 2 cm t. n. 1( B) ( iii)

.
2 9 See i d.

3 0 Cf

. U ni ted Sta tes v. G a l l egos- G a l i ndo , 704 F. 3d 1269 (9th C ir. 2013) ( hold ing that a violation of Was hington’s third -d egree rap e s tatute w as a crim e of violence)

. We tak e n o p os ition on w hether G a l legos- G a l i ndo ’s rationale is cons is tent w ith Rodri guez
.

3 1 Carrillo als o argues that Was hington law determ ines “cons ent” f rom the p ers p ective of the victim , and ap p ears to contend that the G ui d e l i nes require cons id eration of only the p er p e t r a t o r ’ s p ers p ective. In other w ord s , Carrillo m ay be as k ing us to read “cons ent is not given”— the p hras e in the G uid elines ’ com m entary— to m ean that “cons ent is understood by the perp etra t or not to be given. ” Even if Carrillo is m ak ing this argum ent, it lack s f orce: it is not p lain error to conclud e that “cons ent is not given” w hen a d ef end ant m i sta kenl

y believes that s om eone cons ents

— but s he d oes not, in f act, d o s o. 8 Case: 12-40427 Document: 00512315128 Page: 8 Date Filed: 07/22/2013