1 Judge KING did not participate in this decision.



### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41461

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JORGE GOMEZ-GOMEZ, also known as Jose L Lopez, Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

Before JONES, Chief Judge, REAVLEY, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GA RZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges. 1 E. GRADY JOLLY and FORTUNATO P. BENAVIDES, Circuit Judges: This case presents the question ofwhether a sex offense committed using constructive force, i.e., nonphysical force, may qualify as a “forcible sex offense” and thereby a “crime ofviolence” under U.S.S.G. § 2L1.2(b)(1)(A). Jorge GomezGomez appeals the district court’s holding that his prior conviction under California’s rape statute was a conviction for a crime of violence under § 2L1.2(b)(1)(A) because it was a forcible sex offense. A unanimous panel of this Courtvacated Gomez-Gomez’s sentence and remanded the case for resentencing, United States Court of Appeals

Fifth Circuit 

### F I L E D October 21, 2008 Charles R. Fulbruge III ClerkNo. 05-41461

2 In 1993, the California legislature amended Cal. Penal Code § 261(b) by removing the term “hardship” from the definition of duress. See People v. Leal , 94 P.3d 1071, 1075 (Cal. 2004). 2 finding that Gomez-Gomez’s prior rape conviction did not constitute a forcible sex offense because the use of physical force was not a required element under California’s rape statute. 493 F.3d 562 (5th Cir. 2007). We granted the Government’s petition for rehearing en banc, 517 F.3d 730 (5th Cir. 2008), and now AFFIRM Gomez-Gomez’s sentence. I. In 1991 Gomez-Gomez pled guilty to violating California’s rape statute, which prohibits sexual intercourse “accomplished against a person’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another.” Cal. Penal Code § 261(a)(2) (1991). At the time of his plea, duress encompassed “a direct or implied threat of . . . hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities.”2 Cal. Penal Code § 261(b) (1991). In 20 05 Gomez-Gomez was arrested for illegally reentering the United States. A jury convicted him, and the judge sentenced him to 100 months in prison, finding that Gomez-Gomez’s 1991 conviction qualified as a prior conviction for a crime of violence under § 2L1.2 of the advisory Federal Sentencing Guidelines. Gomez-Gomez asks this Court to find that his 1991 offense was not a crime of violence. Although, post-Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to i mpose. G all v. United States, 128 S.Ct. 586, 596 (2007). In that respect, for a guidelines issue preserved in district court, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E .g.,No. 05-41461

3 United States v. Cisneros-Gutierrez, 51 7 F.3d 751, 764 (5th Cir. 2008); U nited States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). II. U.S.S.G. § 2L1.2(b)(1)(A) provides a sixteen-level enhancement under the Sentencing Guidelines for defendants convicted of unlawfully reentering the United States who have a prior conviction for a crime o f violence. A crime of violence is defined as: [A]ny o f the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension ofcredit, burglary ofa dwelling, or any 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. 1(B)(iii). Under this definition, a prior offense is a crime ofviolence if it: (1) has physical force as an element, or (2) qualifies as one ofthe enumerated offenses. Because Gomez-Gomez and the Government agree that
a conviction under the California statute does not require the use of physical force as an element, we consider only whether the offense ofconviction qualifies
as one ofthe enumerated offenses. The relevant enumerated offense in this case is “forcible sex offenses.” To determine whether Gomez-Gomez’s prior criminal offense qualifies as a forcible sex offense, we do not look to his actual conduct. Instead, we consider the offense categorically by looking “only to the fact of conviction and the statutory definition of the prior offense.” T aylor v. United States, 495 U.S. 575, 602 (1990). If the full range of the conduct prohibited by the California rape statute falls under the definition ofa forcible sex offense, then we must hold that Gomez-Gomez’s prior offense, rape as set forth in the California statute, was a crime of violence. If, on the other hand, the California statute prohibits some conduct that is not a forcible sex offense, then Gomez-Gomez’s offense was not
a crime of violence. Based on the language of the statute, the GovernmentNo. 05-41461

3 Despite the general rule that a prior crime is defined categorically by the statute of conviction, a crime’s definition may be narrowed based, e.g., on the specific facts contained in the charging papers. See Shepard v. United States, 544 U.S. 13, 30 (2005); United States v. Carbajal-Diaz, 508 F.3d 804, 807 (5th Cir. 2007). In determining whether a prior crime amounts to one ofthe enumerated offenses under § 2L1.2, we have held that a court “can look to those facts contained in the charging papers and that are necessary to the verdict or the plea.” Carbajal-Diaz, 508 F.3d at 809. While the felony complaint primarily tracks the language of Cal. Penal Code § 261(a)(2), it lists the means of committing the offense conjunctively instead ofdisjunctively. The Government concedes that it waived the argument that this requires construing Gomez-Gomez’s guilty plea as an admission to having committed rape through all ofthe means listed in the felony complaint, including “force, violence, duress, menace, and fear of immediate and unlawful bodily injury,” by failing to raise this argument in its principal brief on appeal. 4 concedes, for purposes of this appeal, that Gomez-Gomez could have been convicted for rape accomplished by means of duress, and that Gomez-Gomez’s rapeconviction cannot constitutea forcible sex offense ifrape by meansofduress does not qualify as a forcible sex offense. 3 III. We fi rst addressed the meaning of the term forcible sex offense under § 2L1.2 in United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004). In Sarmiento-Funes, thedefendant pleaded guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326—the same offense that Gomez-Gomez was convicted of in this case. I d. at 338. At sentencing, the district court applied a crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because the defendant was previously convicted ofsexual assault in Missouri. I d. In Missouri, sexual assault is defined as “sexual intercourse with another person knowing that he does so wi thout that person’s consent.” Mo. Ann. Stat. § 566.040(1) (2008). Under Missouri law, consent is absent, even if the victim “assented” or submitted to the act when: (a) It is given by a person who lacks the mental capacity to authorize the conduct charged to constitute the offense and such mental incapacity is manifest or known to the actor; or (b) It is given by a person who by reason ofyouth, mental disease or defect, or intoxication, is manifestly unable or known by the actorNo. 05-41461

4 After the defendant in Sarmiento-Funes was sentenced, the Commission amended § 2L1.2 to include “statutory rape” as an enumerated crime ofviolence. Before November 2003, U.S.S.G. § 2L1.2 provided that the term “crime of violence”: (I) means an offense under federal, state, or local lawthat has as an element the 5 to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or (c) It is induced by force, duress, or deception[.] Mo. Ann. Stat. § 556.061(5) (2008). On appeal, we vacated the defendant’s sentence and remanded for resentencing. Sarmiento-Funes, 374 F.3d at 337. First, we found that the defendant’s Missouri sexual assault conviction did “not have, as an element, the
use of physical force against the person ofanother.” I d. at 341. This court drew
a distinction between offenses where the victim consents as a matter of fact, or “assents,” but the lawdisregards or countermands the victim’s decision, such as where the victim is underage or the assent is the result of deception or intoxication, and offenses where the victim does not consent as a matter offact. Id. at 341 & n.7. We found that “intercourse does not involve the use of force when it is accompanied by consent-in-fact.” Id. at 341. We next considered whether the defendant’s prior conviction constituted
a crime of violence because it qualified as a forcible sex offense. We observed that “it seems that the adjective ‘forcible’ centrally denotes a species offorce that either approximates the concept of forcible compulsion or, at least, does not embrace some of the assented-to-but-not-consented-to conduct at issue here,” and that “when one specifically designatesa sex offenseasa ‘forcible’ sex offense, one probably does so in order to distinguish the subject sex offense as one that does require force or threatened force extrinsic to penetration.” I d. at 344. We held that “regardless of the precise boundaries of the phrase,” at least some of the conduct criminalized by the Missouri sexual assaul t statute did not constitute “forcible sex offenses.”4 Id.No. 05-41461

use, attempted use, or threatened use of physical force against the person of another; and (I I) includes murder, manslaughter, kidnapping, aggravated assault,f orciblesex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. U.S.S.G. § 2L1.2 cmt. 1(B)(ii) (2002) (emphasis added). Section 2L1.2 was amended in November 2003, and the term “crime of violence” was redefined as: [A]ny ofthe following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension ofcredit, burglary ofa dwelling, or any offense under federal, state, or local lawthat 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. 1(B)(iii) (emphasis added). The fact that this amendment lists statutory rape as a separate and distinct crime of violence in § 2L1.2 makes unnecessary any further inquiry into whether statutory rape is a forcible sex offense under § 2L1.2. 6 The en banc court finds that Sarmiento-Funes stands for the limited proposition that a sex offense does not involve the use of force when the victim consents in fact. Sarmiento-Funesdid not address thequestion presented in this
case: whether rape accomplished by means of nonphysical duress, in which the victim submits to sex due to constructive force but not physical force or the threat of physical force, is a forcible sex offense and thus a crime of violence under § 2L1.2. Sarmiento-Funes does not, as the panel opinion in this case mistakenly concl uded, define forcible sex offense as requiring physical force. Our opinion in Sarmiento-Funesobserved only that theadjective “forcible” likely refers to “a species of force that either approximates the concept of forcible compulsion or, at least, does not embrace some of the assented-to-but-notc onsented-to conduct at issue” in that case and that a forcible sex of fense was probably one that requires “force or threatened force extrinsic to penetration.” Id. at 344. We did not state that physical force is required or address whether words or actions o

f consent constitute consent in fact when they are procured through the application of constructive force. Id.No. 05-41461

7 Our cases interpreting Sarmiento-Funes have provided seemingly inconsistent guidance as to whether the term forcible sex offenses includes sex offenses involving constructiveforce. In United States v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006), we found that sex offenses involving exploitation ofthe emotional dependency engendered by a clergymen’s or mental health service provider’s position, coercion by a public servant, or a victim who is incapable of appraising the nature ofthe act or of resisting it as a result of mental disease or defect, were not necessarily “forcible” because “[i]n each ofthese situations, there may be assent in fact but no legally valid consent under the statute.” I d. at 322. We observed that “[n]othing in this court’s precedent

. . . equates emotional manipulation by a clergyman or a mental health professi onal with the use of force.” Id. at 323 n.15. In United Statesv. Beliew , 492 F.3d 314, 316 (5th Cir. 2007), we addressed the meaning of the term forcible sex offenses for the purposes of U.S.S.G. § 4B1.2. We observed that the “[e]xpansion of the term ‘forcible sex offense’ through the fiction of ‘constructive force’ is bounded by Sarmiento-Funes,” but held that an adult’s “use of influence by virtue of a position of control or supervision” over a juvenile is “a form of psychological intimidation that carries an implicit threat of force, a species of force extrinsic to penetration, distinguishable from Sarmiento-Funes.” I d. at 316–17. This holding appears to be in tension with our finding in L uciano-Rodriguez that duress or the exploitation ofa position of influence in other contexts in which the victim is in
a position ofvulnerability does not involve the use offorce because a victim may still “consent in fact” in those situations. We nowseek to clarify whether the term forcible sex offenses includes sex offenses involving constructive force. Because the Sentencing Guidelines do not define the term “forcibl e sex offense,” “we look first to its plain, ordinary
meaning” by consulting the dictionary. See United States v. Izaguirre-Flores,No. 05-41461

5 U.S.S.G. § 2L1.2(b)(1)(C) provides an eight-level enhancement for defendants previously convicted ofan “aggravated felony,” which isdefined as“ha[ving] the meaning given 8 405 F.3d 270, 275 (5th Cir. 2005) (per curiam). A sex offense or “sexual offense” is “[a]n offense involving unlawful sexual conduct.” B lack’s LawDictionary 1112 (8th ed. 2004). “Forcible” is defined as “[e]ffected by force or threat of force against opposition or resistance,” id. at 674, and force is defined as “[p]ower, violence, or pressure directed against a person or thing,” i d. at 673. Therefore,
a sex offense is forcible if, at the least, it is committed using force or forcible compulsion against opposition or resistance. G omez-Gomez argues that the term forciblesex offensesencompasses only “sex offenses involving at least some quantum of physical force or threat of violence,” but the definitions make clear that physical force is not required. The word “force” is defined broadly as “[p]ower, violence, or pressuredirected against
a person or thing,” B lack’s Law Dictionary 673 (8th ed. 2004) (emphasis added), and “pressure” is defined as “the burden of physical or mental distress.” Webster’s Third New International Dictionary 1795 (1981). Because pressure, which may be both mental and physical in nature, constitutes force, the term “forcible sex offense” encompasses sex offenses committed using constructive force. See also Beliew , 492 F.3d at 316 (finding that psychological intimidation is forcible). This interpretation is supported by the fact that the Sentencing Commission explicitly modified the term “force” in the elements test for a crime of violence with the term “physical,” but eschewed such a modifier for the enumerated crime ofviolence “forcible sex offenses.” See U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Gomez-Gomez also argues that interpreting the term forcible sex offenses to encompass sex offenses that do not involve the use of physical force or the threat of physical force would render superfluous the eight-level enhancement for aggravated felonies, including rape, under U.S.S.G . § 2L1.2(b)(1)(C). 5 Gomez-No. 05-41461

that term in 8 U.S.C. 1101(a)(43).” U.S.S.G. § 2L1.2 cmt. 3(A). 8 U.S.C. § 1101(a)(43) in turn listsa number ofoffenses that qualify asan aggravated felony, including “murder, rape, sexual abuse of a minor” and “a crime of violence.” 8 U.S.C. § 1101(a)(43)(A) and (F).

6 We decline to address the implications of our interpretation in this case of the term “forcible sex offenses” under § 2L1.2 for the meaning of same phrase in § 4B1.2. Although § 4B1.2 and § 2L1.2 both list “forcible sex offenses” as crimes of violence, § 4B1.2 does not contain “statutory rape” and “sexual abuse of a minor” as separate and distinct crimes of violence. We leave the task of further specifying the meaning of “forcible sex offenses” in either section for cases that squarely present those issues. 9 Gomez asserts that listing rape as an aggravated felony is redundant if rape alwaysqualifiesfor the sixteen-level crime-of-violence enhancement as a forcible
sex offense, and therefore “forcible sex offense” must embrace only the most egregious forms of rape, which he contends to be rape “involving at least some quantum of physical force or threat of violence.” However, many offenses are eligible for both the eight-level and the sixteen-level enhancements under U.S.S.G. § 2L1.2. SeeUnited Statesv. Treto-Martinez, 421 F.3d 1156, 1158 (10th Cir. 2005) (recognizing that defendant’s prior conviction qualified for the eightlevel and sixteen-level enhancements under U.S.S.G. § 2L1.2). For example, murder, like rape, is an aggravated felony that qualifies for an eight-level enhancement. See U.S.S.G. § 2L1.2 cmt. 3(A); 8 U.S.C. § 1101(a)(43). Murder alsoalwaysqualifiesfor the sixteen-level crime-of-violence enhancement because murder is an enumerated offense. U.S.S.G. § 2L1.2 cmt. 1(B)(iii). The Sentencing Commission is aware of the redundancies contained in the guidelines, and has instructed courts to “[a]pply the [g]reatest” enhancement applicable. U.S.S.G. § 2L1.2(b)(1). In light of the foregoing, we find that sex offenses committed using constructive force that would cause a reasonable person to succumb qualify as “forcible sex offenses,” and therefore crimes of violence, under § 2L1.2. 6 Such offenses, by definition, involvevictimswho have not consented in fact, even ifthe victim has nominally consented. As we use the phrase, “consent in fact” meansNo. 05-41461

7 The Commission’s proposed amendment to § 2L1.2 attaches the following parenthetical to the phrase “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).” U.S.S.G. § 2L1.2 cmt. 1(b)(iii) (eff. Nov. 1, 2008). We need not address the proposed amended def inition here because the definition in effect at the time of sentencing governs. See 18 U.S.C. §§ 3553(a)(4)(A)(ii), 3742(g)(1). 10 consent actually and freely given. A mere word or action indicating consent that is given under duress, whether through physical or nonphysical means, and against the free will ofthe victim, indicates nothing about whether the victim in fact wishes to engage in sex; such nominal consent is solely a creature of the duress, and the perpetrator who has applied physical or constructive force to make the victim submit cannot reasonably interpret such a word or action as indicating that the victim actually wishes to manifest consent. See Black’s Law Dictionary 542 (8th ed. 2004) (defining duress as “a threat of harm made to compel a person to do something against his or her will or judgment”). Such “consent” is not simply null as a matter of law, as with a word or action indicating consent freely given by an underage victim in a statutory rape case, but null as a matter of fact. 7 IV. Comparing thedefinitionsofGomez-Gomez’s prior conviction and the term “forcible sex offenses,” we find that the district court properly applied the crimeof-viol ence enhancement in this case. As discussed above, we hold that sex offenses committed using constructive force that would cause a reasonable person to succumb qualify as crimes of violence under § 2L1.2. The California statute underlying Gomez-Gomez’s prior conviction criminalizes intercourse “accomplished against a person’s will by means of force, violence, duress, menace, or fear ofimmediate or unlawful bodily injury on the person ofanother.” Cal. Penal Code § 261(a)(2) (1991). Duress, at the time of Gomez-Gomez’s plea, encompassed “a direct or implied threat of

. . . hardship, or retribution sufficient to coerce a reasonable person o f ordinary susceptibilities.” Cal. Penal Code §No. 05-41461

11 261(b) (1991). The full range of conduct prohibited by the California rape statute falls under the definition of“forciblesex offenses.” For this reason, the judgment of the district court is AFFIRMED.