Jorge Cabecera Rodriguez ("Rodriguez") pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to twenty-three months of imprisonment. Rodriguez now challenges his sentence, arguing that it was error for the district court to apply a sixteen-level "crime of violence" enhancement based on a prior Texas conviction for sexual assault of a child. We AFFIRM Rodriguez's sentence, and in so doing, we adopt a plain-meaning approach to the "crime of violence" enhancements of "sexual abuse of a minor" and "statutory rape" under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) [hereinafter "U.S.S.G."]. Under this approach, we hold that for the purposes of the crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii), the meaning of "minor" in "sexual abuse of a minor" is a person under the age of majority — which we conclude to be eighteen. We also hold that the age of consent for the purposes of "statutory rape" is the age of consent as defined by statute in the jurisdiction where the prior conviction was obtained. More specifically, under this plain-meaning approach, we proceed with the following four steps: 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. This plain-meaning approach is faithful to the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), but does not impose a cumbersome methodological requirement on lower courts to conduct a nationwide survey and look to the majority of state codes — as well as the Model Penal Code, federal law, and criminal law treatises — when deriving the meaning of an undefined offense category enumerated in a federal sentencing enhancement.
Rodriguez was charged with illegal reentry after deportation following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2), and pleaded guilty without the benefit of a plea agreement. After the district court accepted Rodriguez's plea, it ordered the preparation of a Presentence Investigation Report ("PSR"). The probation officer determined that Rodriguez had a base offense level of eight. The probation officer recommended that Rodriguez's base offense level be increased by a sixteen-level "crime of violence" enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Rodriguez had been deported following a 2003 conviction for sexual assault of a child under Texas Penal Code § 22.011(a)(2). From this adjusted offense level of twenty-four, Rodriguez received a three-level reduction pursuant to U.S.S.G. § 3E1.1 for his prompt acceptance of responsibility. Accordingly, Rodriguez had a total offense
Before the sentencing hearing, Rodriguez filed a written objection to the probation officer's recommendation of the sixteen-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii). Rodriguez argued, as he does before this court, that his conviction under Texas Penal Code § 22.011(a)(2) is not a "crime of violence" under § 2L1.2(b)(1)(A)(ii) because that statute criminalizes conduct that falls outside of the "generic, contemporary meaning" of "statutory rape" and "sexual abuse of a minor." Specifically, he argued that the generic definitions of both offense categories require that the victim be under sixteen years of age and that the defendant be at least four years older than the victim. Rodriguez contended that because § 22.011(a)(2) applies to victims under seventeen years of age and requires only a three-year age differential, the statute is broader than these generic definitions. He also maintained that the victim was sixteen years old at the time of the offense, and that he was nineteen years old at the time.
At the sentencing hearing, the district court first discussed Rodriguez's objection to the sixteen-level "crime of violence" enhancement. Specifically, the district court asked Rodriguez's counsel whether any precedent supported Rodriguez's position that his 2003 conviction for sexual assault of a child under Texas Penal Code § 22.011(a)(2) was not a "crime of violence." Rodriguez's counsel expressly acknowledged that under our precedent, the district court lacked the ability to conclude
Following this statement, the discussion at the sentencing hearing turned to consideration of the district court's discretion to grant a variance from the Guidelines. Initially, the district court asked the government about its position on the appropriateness of a variance under § 3553(a). The government agreed that a variance was appropriate on the facts of this case and recommended a three-level variance — lowering the offense level from twenty-one to eighteen, resulting in a Guidelines range of thirty-three to forty-one months.
The district court then asked Rodriguez whether he agreed with the government's suggested three-level variance. Rodriguez's counsel expressed appreciation for the government's willingness to acknowledge that a Guidelines sentence would be inappropriate, but argued that the appropriate variance would be to treat Rodriguez's conviction as a felony rather than as a "crime of violence." Rodriguez's counsel explained that with this suggested variance, the adjusted offense level would be ten, resulting in a Guidelines range of ten to sixteen months. Under this range, Rodriguez's counsel recommended a sentence of one year and a day. The government responded to this recommendation by reiterating its position that a sentence between thirty-three and forty-one months would be appropriate, contending that a lower sentence would not adequately address Rodriguez's conviction for sexual assault of a child. Following this response by the government, the district court acknowledged that it was bound by precedent, as Rodriguez's counsel conceded, to overrule Rodriguez's objection that his offense did not constitute "statutory rape" or "sexual abuse of a minor" under § 2L1.2.
The district court, however, explicitly noted that despite its conclusion that the Guidelines range was forty-six to fifty-seven months, a variance was appropriate and requested further argument on the appropriate sentence to impose. Rodriguez's counsel continued by arguing that one year and a day was the appropriate sentence considering his significant cultural assimilation. Rodriguez also made a statement on his own behalf, which acknowledged that he knew it was a crime to return to the United States but explained that he returned "with the best intentions with being with my family and helping them out." The government declined the opportunity to provide further argument.
After hearing all arguments by Rodriguez and the government, the district court explained:
The Statement of Reasons ("SOR"), which the district court filed a few days after the sentencing hearing, reflected the district court's explanation at the sentencing hearing that it was adopting the PSR without change, but imposing a sentence outside the advisory Guidelines system. Specifically, the district court checked the box indicating that "the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1)" justified the selection of a sentence outside the advisory Guidelines system.
On appeal, Rodriguez argues that Texas Penal Code § 22.011(a)(2) was overbroad because it set the age of consent too high and required an age differential that was too low. A panel of this court rejected Rodriguez's arguments with respect to the age of consent as foreclosed by circuit precedent, noting that this court had previously held that the offense under § 22.011(a)(2) constitutes both "statutory rape" and "sexual abuse of a minor" — both of which are enumerated as "crimes of violence" for purposes of § 2L1.2(b)(1)(A)(ii). United States v. Rodriguez, 698 F.3d 220 (5th Cir.), vacated and reh'g en banc granted by 701 F.3d 1080 (5th Cir.2012) (per curiam). The panel rejected his argument with respect to the age-differential issue on the ground that there is substantial disagreement across the states about the age difference required between the victim and the defendant. Id. The panel concurrence called attention to "confusion in our case law" over our inconsistent determinations of the "generic, contemporary meaning" of "minor" in the context of the "sexual abuse of a minor" and "statutory rape" offense categories in the § 2L1.2 enhancement. Id. at 227. Rodriguez subsequently sought and obtained en banc review.
Under Gall v. United States, we review a sentencing decision for reasonableness regardless of whether the sentence imposed is inside or outside the Guidelines range. 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In conducting this review, we "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range...." Id. If the district court's sentencing decision is procedurally sound, we "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. In this case, Rodriguez contends only that the district court committed procedural error by improperly calculating the Guidelines range. He does not argue that the twenty-three-month sentence was substantively unreasonable.
A defendant convicted of illegal reentry is subject to a Guidelines enhancement if he was convicted of a "crime of violence" prior to his removal or deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2 define "crime of violence" as one of several enumerated offense categories, including "sexual abuse of a minor" and "statutory rape."
Deriving the "generic, contemporary meaning" of an offense category enumerated in the Guidelines is challenging because
The parties' arguments illustrate our methodological inconsistencies when applying Taylor. In some cases, we have taken a plain-language approach and relied primarily on dictionary definitions to derive the "generic, contemporary meaning" of offense categories enumerated in the Guidelines. See, e.g., United States v. Izaguirre-Flores, 405 F.3d 270, 275-76 (5th Cir.2005) (using definitions of "sexual abuse" in Black's Law Dictionary and Webster's Third New International Dictionary to define the "generic, contemporary meaning" of "sexual abuse of a minor" for the purposes of the crime-of-violence enhancement in § 2L1.2); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000) (relying on definitions of "sexual" and "abuse" in The American Heritage Dictionary to determine the generic meaning of "sexual abuse of a minor" for the purposes of the aggravating felony sentencing enhancement in § 2L1.2). In other cases, we have looked to definitions in various state codes, federal law, the Model Penal Code, and criminal law treatises. See, e.g., Munoz-Ortenza, 563 F.3d at 114-16 (relying on definitions in the majority of state codes, the Model Penal Code, and federal law to conclude that the "generic, contemporary meaning" of "minor" was sixteen for the purposes of applying the "sexual abuse of a minor" category in § 2L1.2 to prior convictions involving oral copulation); Lopez-DeLeon, 513 F.3d at 474-75 (relying on definitions in the majority of state codes, the Model Penal Code, and federal law to conclude that the "generic, contemporary meaning" of the age of consent was sixteen for the purposes of the "statutory rape" category in § 2L1.2). The use of these different approaches has created challenges for the bench and the bar. Further, our efforts have yielded results at odds with our sister circuits' conclusions. See, e.g., United States v. Montenegro-Recinos, 424 F.3d 715, 717-18 (8th Cir.2005).
Three different methods of determining the "generic, contemporary meaning" of offense categories enumerated in federal sentencing enhancements have emerged among the circuits. First, the majority of circuits have taken a plain-language approach, relying on the common meaning of terms as stated in legal and other well-accepted dictionaries.
Today, we join the First, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits and adopt a plain-meaning approach when determining the "generic, contemporary meaning" of non-common-law offense categories enumerated in federal sentencing enhancements. Under this approach, our application of Taylor's categorical approach to a prior state conviction proceeds in the following four steps: 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.
We adopt this approach based on our close review of Taylor. In Taylor, the Supreme Court considered whether the defendant's prior second-degree burglary conviction in Missouri was a "violent felony" under a sentence-enhancement provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).
The Supreme Court first rejected the argument that "Congress intended the meaning of `burglary' for purposes of [the ACCA] to depend on the definition adopted by the State of conviction." Id. at 590, 110 S.Ct. 2143. The Supreme Court reasoned that such an approach would result in a person convicted of "burglary" in one state qualifying for the ACCA enhancement, but not a person who committed the same law-breaking acts in a different state that did not label those acts as "burglary." Id. Viewing this as an "implausible" interpretation of Congress's intent, id., the Supreme Court concluded that "burglary" in the ACCA "must have some uniform definition independent of the
In its search for uniformity, the Supreme Court then addressed the approach taken by some courts of appeals that defined "burglary" in the ACCA to mean the common-law definition of burglary. Id. In rejecting that position, the Supreme Court stressed that "the contemporary understanding of `burglary' has diverged a long way from its common-law roots." Id. at 593, 110 S.Ct. 2143. The Supreme Court reasoned that although "[b]urglary was defined by the common law to be the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony," id. at 580 n. 3, 110 S.Ct. 2143 (citation omitted), most states had "expanded this definition to include entry without a `breaking,' structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc.," id. at 593, 110 S.Ct. 2143 (citation omitted).
Next, the Supreme Court evaluated whether the meaning of "burglary" in the ACCA applied to only a special subclass of burglaries with elements that included "conduct that presents a serious risk of physical injury to another." Id. at 597, 110 S.Ct. 2143. The Supreme Court concluded that this argument was inconsistent with the plain language of the ACCA. It reasoned that "if this were Congress' intent, there would have been no reason to add the word `burglary' to [the ACCA], since that provision already includes any crime that `involves conduct that presents a serious potential risk of physical injury to another.'" Id.
After ruling that the meaning of "burglary" was not limited to its common-law definition or to a subclass of burglaries, the Supreme Court stated that "Congress meant by `burglary' the generic sense in which the term is now used in the criminal codes of most States." Id. at 598, 110 S.Ct. 2143 (citing Perrin v. United States, 444 U.S. 37, 45, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979); United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969)). The Supreme Court further stated that "[a]lthough the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id. (citing W. LaFave & A. Scott, Substantive Criminal Law § 8.13(a), p. 466 (1986)). Based on these principles, the Supreme Court held that "an offense constitutes `burglary' for purposes of [the ACCA] if either its statutory definition substantially corresponds to `generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Id. at 602, 110 S.Ct. 2143.
We have several times interpreted Taylor as requiring that lower courts always look to the majority of state codes — as well as to other sources, including the Model Penal Code, federal law, and criminal law treatises — when determining the "generic, contemporary meaning" of an undefined offense category in the Guidelines. See, e.g., United States v. Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir.2006) ("The generic, contemporary meaning of a predicate offense `roughly correspond[s] to the definitions of [the crime] in a majority of the States criminal codes.'" (alteration in original) (quoting Taylor, 495 U.S. at 589, 110 S.Ct. 2143)); Munoz-Ortenza, 563 F.3d at 114-16 (relying on definitions in the majority of state codes, the Model Penal Code, and federal law to conclude that the "generic, contemporary meaning" of "minor" was sixteen for the purposes of applying "sexual abuse of a minor" in § 2L1.2 to prior convictions involving oral copulation); Lopez-DeLeon, 513 F.3d at 474-75 (relying on definitions in the majority
Our construction of Taylor is supported by the reasoning in the two cases that the Taylor Court cited as authority to support its reliance on the broadened definitions of "burglary" in the majority of state codes — Perrin v. United States and United States v. Nardello. Both cases involved common-law offense categories that the Court defined using their "contemporary, generic meaning," not their antiquated meaning at common law. In Perrin, the petitioner
Id. at 45, 100 S.Ct. 311 (footnote omitted). In Nardello, the Supreme Court addressed the meaning of "extortion" in the Travel Act. 393 U.S. at 287, 89 S.Ct. 534. The common-law definition of that offense also was limited to public officials. Id. at 289, 89 S.Ct. 534. The Supreme Court recognized that "[i]n many States ... the crime of extortion ha[d] been statutorily expanded to include acts by private individuals under which property is obtained by means of force, fear or threats." Id. at 290, 89 S.Ct. 534 (citation omitted). In concluding that "extortion" in the Travel Act was not limited to its common-law definition, the Supreme Court reasoned that "in many States ... the crime of extortion has been statutorily expanded to include acts by private individuals." Id.
We recognize that the Taylor Court rejected the view that Congress intended for undefined offense categories in federal sentencing enhancements to correspond to what states happen to call their crimes. 495 U.S. at 591, 110 S.Ct. 2143. At the same time, our federalist system vests states with the power to define and to enforce their own criminal laws, a principle validated by Taylor, Perrin, and Nardello, which discerned congressional intent that contemporary state statutes, not their common-law antecedents, should be supported as the guiding focus in defining common law, enumerated offenses. See id. at 593-94, 110 S.Ct. 2143; Perrin, 444 U.S. at 43-45, 100 S.Ct. 311; Nardello, 393 U.S. at 296, 89 S.Ct. 534; see generally Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (affirming that "[t]he States possess primary authority for defining and enforcing the criminal law"). In joining the First, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, we facilitate uniformity across the circuits by adopting a single, workable method to derive the "generic, contemporary meaning" of non-common-law offense categories enumerated in federal sentencing enhancements.
Taking a plain-language approach when determining the "generic, contemporary meaning" of non-common-law offense categories furthers this cooperative federalism approach. 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. See, e.g., See United States v. Corona-Sanchez, 234 F.3d 449, 453 (9th Cir. 2000) (reasoning that "[b]ecause burglary is a discrete offense [at common law], it lends itself to a narrow definition that may be applied uniformly ... without regard to nuances of state law" (internal quotation marks and citations omitted)). 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.
The wide variation of prohibited conduct in the various state codes involving sexual abuse of minors lends support to these arguments. As the Eleventh Circuit has observed, "[w]hile some states choose to punish only physical contact with minors, others punish a substantial range of non-physical
For these reasons, we conclude that taking a plain-meaning approach to derive the "generic, contemporary meaning" of non-common-law offense categories is grounded in the most reasoned interpretation of Taylor, and avoids some of the gymnastics that our prior application of Taylor's categorical approach required.
We now apply our approach to Rodriguez's case. As explained above, we begin our inquiry by identifying the enumerated offense category that triggers the federal sentencing enhancement. We then evaluate
Next, we determine whether "sexual abuse of a minor" and "statutory rape" are offense categories defined at common law, or offense categories not defined at common law. We conclude that both are non-common-law offense categories. This conclusion is consistent with that of other circuits that have considered the issue. See Ramirez-Garcia, 646 F.3d at 783 (concluding that "sexual abuse of a minor" in the § 2L1.2 enhancement is a non-traditional offense category that is not defined at common law); Lopez-Solis, 447 F.3d at 1206-07 (characterizing "sexual abuse of a minor" in the § 2L1.2 enhancement as non-traditional offense); United States v. Gomez-Mendez, 486 F.3d 599, 602 n. 4 (9th Cir.2007) (concluding that "statutory rape is distinct from the common law offense"). It is also consistent with leading criminal law treatises to consider the issue. In listing the offenses at common law, Professor LaFave's treatise notes:
Wayne R. LaFave, Criminal Law, § 2.1(b) (5th ed. 2010). Neither "sexual abuse of a minor" nor "statutory rape" appears in this list. LaFave discusses all sexual crimes involving minors in a subsection of the treatise dedicated to statutory rape, which lends further support to the conclusion that it is difficult to cleanly identify uniform sets of elements that define "sexual abuse of a minor" and "statutory rape." In that subsection, he explains that criminal prohibitions against sexual relations with a child did not exist at early common law — rather, those offenses were statutory creations:
§ 17.4(c) (citations omitted). In this passage, LaFave also cites to two early English cases — Reg. v. Read, 1 Den. C.C. 377; Reg. v. Webb, 2 C & K 937 — as authority that sexual relations with a child were not regarded as rape if the child consented under early English common law.
Having concluded that "sexual abuse of a minor" and "statutory rape" under § 2L1.2. are non-common-law offense categories, we derive their "generic, contemporary meaning" from the common usage of their terms as stated in legal and other well-accepted dictionaries. We first determine the generic meaning of "minor" in "sexual abuse of a minor."
TEX. PENAL CODE § 22.011(a)(2). The Texas statute defines "child" as "a person younger than 17 years of age." Id. at § 22.011(c)(1).
Rodriguez does not challenge that these elements comport with the "generic, contemporary meaning" of "sexual" or "abuse." Rather, he argues that the Texas statute is broader than the generic meaning of "sexual abuse of a minor" and "statutory rape" because it defines "child" at the age of seventeen, not sixteen. We disagree. For the reasons explained above, the "generic, contemporary meaning" of "minor" in the "sexual abuse of a minor" category under § 2L1.2 is a person under the age of majority.
For the foregoing reasons, Rodriguez's sentence is AFFIRMED.
OWEN, Circuit Judge, joined by JONES, Circuit Judge, concurring:
I concur in the judgment. My concern with the court's opinion is its exclusive reliance on dictionaries in determining the meaning of "sexual abuse of a minor" and "statutory rape." While dictionaries certainly may be consulted, it is difficult to see why they should be controlling. I respectfully submit that we should attempt to divine what the Sentencing Commission meant when it used the terms at issue in § 2L1.2 by considering the evolution of this section of the Guidelines.
The United States Sentencing Commission, courts, attorneys, and probation officers have struggled with the meaning of "a crime of violence" as used in the Sentencing Guidelines, particularly with which crimes of a sexual nature constitute "a crime of violence."
In this case, we must decide whether Rodriguez's prior conviction under Texas law for sexual contact with a sixteen-year-old female when Rodriguez was more than three years older than the victim constituted either "sexual abuse of a minor" or "statutory rape" with the meaning of § 2L1.2 of the Guidelines. I respectfully submit that amendments to the Sentencing Guidelines over the years indicate that the Commission has not intended for courts to apply the "categorical approach" as an exacting template for discerning what constitutes "forcible sex offenses," "statutory rape," or "sexual abuse of a minor," each of which is an enumerated offense in the definition of "crime of violence" in § 2L1.2.
The Sentencing Guidelines have long included "forcible sex offenses" among the enumerated offenses that constitute a "crime of violence."
These amendments did not directly tell courts whether they should apply the "categorical approach," described and applied by the Supreme Court in construing a provision of the Armed Career Criminal Act
The Commission's explanation for further amendments to the definition of "crime of violence" in § 2L1.2 seems, at least to me, to reveal more directly the Commission's view of how the enumerated sex offenses are to be identified under the Guidelines. Those amendments eschew an approach that would seek a "majority" view of how a broad category of offenses, such as "sexual abuse of a minor," is defined or its indispensable elements. In the latest of the amendments to the definition of "[c]rime of violence" in § 2L1.2, the Commission added a parenthetical after
What, then, should this tell us about how the Commission intended courts to construe "sexual abuse of a minor" and "statutory rape"? I agree with the court's opinion today that we should apply a commonsense approach when interpreting these terms. Sexual abuse of a minor and statutory rape are defined differently in different states. But the terms used by the Commission encompass a broad range of conduct and were not intended to exclude what is commonly understand to constitute sexual abuse of a minor or statutory rape. The Texas statute under which Rodriguez was convicted
I agree with the court's opinion today that the Commission did not intend for courts to survey the various state laws to find and adopt the majority view of "minor" or the majority view of when an age difference may constitute an affirmative defense to a charge of statutory rape or sexual abuse of a minor. Statutes that prohibit a nineteen-year-old from having sexual contact (of the sort specifically described the Texas statute)
I agree with Judge Gruender's dissenting opinion in United States v. Viezcas-Soto,
I am perplexed, for two reasons, by the court's decision to rely solely on dictionary definitions of the term "minor." The first is that courts are just as capable as the authors of dictionaries of determining how statutes "usually" define "minor." The second is that there are inconsistencies in how the court applies the dictionary definitions.
With great respect to the authors of legal dictionaries such as Black's, why should the court accept at face value the assertions in dictionaries that a "minor," for some purposes, is "usually" a person under the age of eighteen? Presumably the authors arrive at a definition by surveying the way in which terms are actually used in their relevant legal contexts, a task that this court is able to undertake itself. Furthermore, dictionary entries are, by their very nature, broad and tend to encompass all uses of a word or phrase. Dictionary definitions may be a useful starting point for determining what the Commission meant in using specific terms to describe an enumerated offense, but
Second, the court does not appear to adhere to its own commitment to the supremacy of dictionary definitions. The court adopts an age of consent of eighteen by reference to Black's definition of "statutory rape" while rejecting that same dictionary's statement that the "age of consent" to sexual intercourse is "usually" defined by statute at sixteen years.
I concur in the judgment.
HAYNES, Circuit Judge, concurring in the judgment only:
I concur in the court's judgment only. The majority opinion provides a fair view of the meaning of the word "minor." Because Rodriguez does not challenge the "generic, contemporary meaning" of the phrase "sexual abuse," the majority opinion properly does not opine on the complex questions related to that matter. See Maj. Op. at 549 n. 9; Graves Conc. Op. at 573.
I write separately because this case highlights the need for the Sentencing Commission to define "sexual abuse of a minor" — a crime with few common-law analogs. Against the backdrop of a patchwork of state laws on the subject, this guideline is singularly unhelpful. Other guidelines, such as the immediately preceding one, expressly define "minor." See U.S.S.G. § 2L1.1 cmt. n. 1. Notably, those definitions vary from guideline to guideline. Compare id. (defining "minor" as someone under 16), with Maj. Op. at 550 n. 11 (citing guidelines that define "minor" as someone under 18). The guideline controlling here, however, is silent on that important subject — as well as on the meaning of "abuse" — despite categorizing as "crimes of violence" state-law offenses that depend explicitly on age and that encompass greatly varied conduct. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt. n. 1(B)(iii). We thus are left to puzzle over nebulous terms that can mean different things in different contexts, a result that frustrates our ability to provide even-handed treatment to similarly-situated, but geographically-diverse, defendants. See, e.g., Taylor v. United States, 495 U.S. 575, 590-92, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (discussing need for federal sentencing uniformity).
The Texas indecency-with-a-child statute exemplifies the problems with having such federal definitional voids. See Texas Penal Code § 21.11(a); United States v. Najera-Najera, 519 F.3d 509 (5th Cir.2008); United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir.2000). That statute proscribes everything from otherwise consensual "petting" between teenagers to heinous acts of sexual exploitation.
The guideline gives no "guidance," and the majority opinion leaves the issue for another day. A common-sense, "plain-meaning" understanding of "abuse" would make one think only the latter. Our precedents,
As the Texas statute demonstrates, myriad offenses could fall under the broad rubric of "sexual abuse of a minor." The states, of course, are free to criminalize a broad range of "sexual" conduct so long as they stay within federal constitutional bounds. But in deciding the propriety of a federal sentencing enhancement — a uniquely federal question — we must seek clarity and uniform treatment of similarly-situated defendants.
I recognize that district judges, like the highly-skilled judge here, can vary or depart from the Guidelines to capture case-specific nuances. The problem, however, remains that such conscientious jurists still must consider the Guidelines and their blunderbuss approach to this issue. See 18 U.S.C. 3553(a)(4). The district judge here clearly was troubled by that very point. This particular portion of this guideline needs defining or refining. I urge the Sentencing Commission to address this matter definitively.
JAMES E. GRAVES, JR., Circuit Judge, concurring in part and concurring in the judgment:
I concur in the approach adopted by the majority to determine the generic definition of an enumerated Guidelines offense when that offense is not defined at common law. I also concur in the majority's conclusion that the term "minor," as used in "sexual abuse of a minor," means a person under the age of 18. However, because I am convinced that "statutory rape" is an offense defined at common law, I would find the majority's "common usage" approach inapplicable in determining its generic definition. Rather, I would hold that, consistent with our precedent, traditional common law offenses must be defined according to the method used in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), by considering the majority of state criminal codes, the Model Penal Code, treatises, and other sources to derive a majority approach. Using this approach, I would conclude that the generic definition of "statutory rape" includes an age of consent of 16 years. Finally, even under the "common usage" approach, I would conclude that the generic definition of "statutory rape" includes an age of consent of 16 years. The majority's definition of "statutory rape" is fundamentally flawed because it depends on state law and is therefore not uniform.
Because Rodriguez's challenge to the definition of the term "minor" fails, he has not shown that the district court erred in determining that his prior conviction under Texas Penal Code § 22.011(a)(2) constitutes "sexual abuse of a minor" and applying a 16-level "crime of violence" enhancement under § 2L1.2. Accordingly, I concur in the judgment of the court.
The majority's adoption of a "common usage" approach for defining enumerated offenses that are undefined at common law is a sensible solution to an intractable problem that has divided and confused federal courts. Unfortunately, the majority negates many of the benefits of such an approach by adopting a needlessly complex method for determining whether an offense is "defined at common law." Although the crime of statutory rape has existed for over seven hundred years in England, the majority holds that it is not a common law crime because it was created by statute rather than by judges, and because it has no mens rea requirement. These distinctions, in addition to being problematic for other reasons, do not further the central goal of distinguishing offenses that have no well-known, traditional definition and therefore cannot be defined according to the method used in Taylor. I would hold that any offense recognized under English law prior to 1607 — when the first English colonies were established in America — is a "common law" offense.
First, it is not even clear that statutory rape was initially created by statute. The earliest reference to statutory rape I have found is in the 1275 Statute of Westminster (3 Edw. 1, c. 13), which provides: "And the King prohibiteth that none do ravish, nor take away by Force, any Maiden within Age (neither by her own Consent, nor without) nor any Wife or Maiden of full Age, nor any Woman against her Will."
Second, a distinction between judge-created crimes and crimes created by early statute is unworkable. As the discussions in Blackstone's Commentaries demonstrate, many traditional offenses have been shaped over time by the interplay of court decisions and statutes. For example, among the various types of homicides "committed for the advancement of public justice," Blackstone lists those set forth in statutes as well as in court opinions. See Blackstone, Commentaries *179-80. Similarly, in the discussion of burglary, Blackstone notes that "[t]he entry may be before the breaking, as well as after: for by statute 12 Ann. c. 7. if a person enters into or is within, the dwelling house of another, without breaking in, either by day or by night, with intent to commit felony, and shall in the night break of the same, this is declared to be burglary." Id. at *227. Blackstone further describes the ways in which the crime of rape had been modified by statutes, and describes statutory rape as a type of rape. Id. at *211-12.
There is simply no justifiable reason for wading through early English law and attempting to disentangle the judge-created aspects of traditional crimes from the statute-created aspects. In explaining the rationale for adopting the "common usage" approach for non-traditional offenses, the majority explains that "it is difficult, if not impossible, to identify an accurate set of discrete elements that define modern, non-traditional offense categories when those
The majority relies heavily on a discussion in Professor LaFave's treatise but misunderstands its import. Under the heading: "What the Common Law of Crimes Encompasses in States Retaining Common Law Crimes," Professor LaFave answers the question: "How does a court determine something [a] defendant has done amounts to a common law crime?" See Wayne R. LaFave, Criminal Law, 2.1(e) (2012). Professor LaFave notes that a "generally used technique ... is to look at books by recognized writers on English crimes, especially Blackstone, to determine the existence and definition of a common law crime." Id. The majority misinterprets this as a direction to look at whether sources such as Blackstone describe a crime as created through common law, as opposed to statute. However, as the cases cited to illustrate this point demonstrate, courts have not looked to sources such as Blackstone to distinguish common law crimes from non-common law crimes — they have looked to such sources to determine whether some particular conduct is described as criminal. See id. n. 67. No case cited by Professor LaFave or by the majority has parsed sources such as Blackstone to determine whether a crime is described as statutorily created. To clarify any potential confusion, Professor LaFave's treatise states in the same section that "[a]n English criminal statute enacted before 1607, if applicable to our conditions, becomes part of our American law." Wayne R. LaFave, Criminal Law, 2.1(e) (2012).
The majority also holds that statutory rape is not a common law offense because it lacks a mens rea requirement.
Because I conclude that "statutory rape" is an offense defined at common law and therefore "traditional," I would find the majority's "common usage" approach inapplicable.
As the majority notes, most states do not use the label "statutory rape" in their criminal codes. This presents no problem, as we are concerned with the "basic elements" of an offense rather than the "exact definition or label" given by a state. Taylor, 495 U.S. at 599, 110 S.Ct. 2143. More difficulty is presented by the variation among state laws on factors such as the age of consent, the mens rea requirement, the requisite age difference between the perpetrator and the victim, the sexes of the perpetrator and the victim, and the range of sexual conduct prohibited. Nevertheless, these difficulties are by no means insurmountable. Following the guidance of Taylor, courts should use the traditional common law definition of an offense as a baseline and diverge from this definition only when a clear majority of states have done so.
In this case, we need only determine the age of consent in the generic definition of "statutory rape." As this court found in United States v. Lopez-DeLeon, 513 F.3d 472, 474 (5th Cir.2008), thirty-four states (including the District of Columbia) — two thirds — set the age of consent at sixteen. Both the Model Penal Code and the federal equivalent of statutory rape, 18 U.S.C. § 2243(a), likewise set the age of consent at sixteen. Id. at 474-75. Black's Law Dictionary states that the age of consent is "usually defined by statute as 16 years." Id. at 475; Black's Law Dictionary 70 (9th ed. 2009). Based on this data, I agree with Lopez-DeLeon's conclusion that the age of consent in the generic definition of "statutory rape" is 16 years.
Even assuming "statutory rape" is considered to be a "non-traditional" offense, the majority's application of the "common usage" approach is deficient in several ways. Black's Law Dictionary defines "statutory rape" as "[u]nlawful sexual intercourse with a person under the age of consent (as defined by statute), regardless of whether it is against that person's will." Black's Law Dictionary 1374 (9th ed. 2009). "Age of consent" is defined as "[t]he age, usu[ally] defined by statute as 16 years, at which a person is legally capable of agreeing to marriage (without parental consent) or to sexual intercourse." Id. at 70. The majority ignores the clear statement that "age of consent" is usually defined as 16 years, instead focusing on the statement that the age of consent for purposes of statutory rape is "defined by statute." Based on this language, the majority effectively holds that there is no uniform, generic definition of "statutory rape" — that "statutory rape" means unlawful sexual intercourse with a person below whatever age of consent a state chooses to define.
First, this analysis is incongruous with the majority's own analysis of the term "minor." As the majority recognizes, Black's Law Dictionary defines a "minor" as "[a] person who has not reached full legal age." Black's Law Dictionary 1086 (9th ed. 2009). "Legal age" refers to either "age of capacity" or "age of majority." Id. at 70. "Age of capacity" is defined as "[t]he age, usu[ally] defined by statute as 18 years, at which a person is legally capable of agreeing to a contract, maintaining a lawsuit, or the like." Id. (emphasis added). "Age of majority" is defined as "[t]he age, usu[ally] defined by statute as 18 years, at which a person attains full legal rights, esp. civil and political rights such as the right to vote." Id. (emphasis added). The dictionary further states that "[i]n almost all states today, the age of majority is 18." Id. (emphasis added).
Second, and more fundamentally, the majority's definition of "statutory rape" is anything but "uniform." Instead, the elements of "statutory rape" would vary from state to state based on state law. As the majority itself recognizes, Taylor instructs us to determine a "uniform definition" for an enumerated enhancement offense. The Supreme Court in Taylor found it "implausible that Congress intended the meaning of `burglary' for purposes of § 924(e) to depend on the definition adopted by the State of conviction." Taylor v. United States, 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Here, there is likewise no reason to believe that either Congress or the Sentencing Commission intended for the definition of "statutory rape" in the § 2L1.2 "crime of violence" enhancement to depend on the definition adopted by each state.
Such a definition fits awkwardly into the four-step analysis adopted by the majority. Under this analysis, the third step is to derive the generic meaning of an offense and the fourth step is to "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." The generic definition derived in the third step is to be the yardstick by which the state statute is measured. However, the majority has crafted a yardstick that varies according to what is being measured.
As the majority states, the "common usage" of "statutory rape" denotes sexual intercourse with a person under the age of consent. If we are to derive a generic definition of "statutory rape," we cannot avoid defining this age of consent in a way that does not depend on state law. I agree with the conclusion reached by the Ninth Circuit: "While it is true that the age of consent may vary according to individual state statutes, the `usual' definition is sixteen years old." United States v. Rodriguez-Guzman, 506 F.3d 738, 746 (9th Cir.2007).
Because Rodriguez takes issue only with the definition of the term "minor," the court does not consider the meaning of the terms "sexual" and "abuse." Accordingly, the court does not hold that sexual intercourse between a sixteen-year-old and a nineteen-year-old involving actual consent — which would be prohibited under Texas Penal Code § 22.011(a)(2) — constitutes "sexual abuse." Because I agree with the majority's analysis rejecting Rodriguez's
DENNIS, Circuit Judge, dissenting:
I respectfully dissent. I do not believe that the district court's imposition of the "crime of violence" sentencing enhancement was permissible under a proper interpretation of either "statutory rape" or "sexual abuse of a minor" under the sentencing guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt. n. 1(B)(iii).
First, I disagree with the majority's novel "plain meaning" approach for deriving a generic definition of "statutory rape" and the unprecedented interpretation it adopts. Rather than ascertaining the elements of the generic predicate offense from the relevant contemporary authorities as the Supreme Court has instructed, Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see United States v. Lopez-DeLeon, 513 F.3d 472, 474-75 (5th Cir.2008), it seems to me that the majority instead turns on its head the notion of a reasonably uniform, generic federal definition by making age of consent a variable to be supplied exclusively by state law. The majority asserts that we join "a majority of circuits" in departing from Taylor and applying a dictionary-only approach to ascertaining generic, contemporary meaning. Maj. Op. at 550. Notably, however, the majority fails to cite any case applying such an approach to the "statutory rape" predicate. See id. at 550-51 & nn. 13-15. And no other court has adopted the unprecedented, variable interpretation of that predicate that the majority invents today. The majority's "plain meaning" approach lacks disciplinary content and cannot help but reduce uniformity and fairness in federal sentencing. It is not this court's place to overrule Taylor's approach to defining generic predicate offenses under the guidelines.
"`The [Sentencing] Guidelines were enacted to bring uniformity and predictability to sentencing.'" United States v. Gonzalez-Ramirez, 477 F.3d 310, 313 (5th Cir. 2007) (emphasis added) (quoting United States v. Ashburn, 20 F.3d 1336, 1347 (5th Cir.1994)); see also, e.g., Dorsey v. United States, ___ U.S. ___, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012) (refusing to adopt an interpretation that "would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity"). Interpreting the generic, categorical meaning of "statutory rape" so as accommodate any state law definition seems to me to undermine this goal.
Rangel-Castaneda, 709 F.3d at 374-75, 377, 2013 WL 829149, at *1, 4.
I believe that the Fourth Circuit in Rangel-Castaneda applied the correct method to arrive at the appropriate generic definition. Accordingly, I respectfully dissent from the contrary decision of today's majority to adopt an interpretation of the "statutory rape" predicate that varies state by state, rather than a uniform federal age of consent of sixteen informed by the clear consensus of modern state criminal codes and other contemporary authorities.
Second, I do not believe that the crime of violence enhancement may be affirmed under the alternative heading of "sexual abuse of a minor." As this court noted in Lopez-DeLeon, and as the Fourth Circuit similarly observed in Rangel-Castaneda, the proper focus in a § 2L1.2(b)(1)(A)(ii) "crime of violence" analysis involving a defendant's prior conviction of a state "[s]tatutory rape law[]" — i.e., a law that "define[s] the age below which a person is legally incapable of consenting to sexual activity," Lopez-DeLeon, 513 F.3d at 474 — is whether it constitutes the enumerated guidelines offense of "statutory rape," rather than whether it falls within the distinct category of "sexual abuse of a minor." See id. at 474 n. 2 ("Our determination focuses on the enumerated offense of `statutory rape' rather than `sexual abuse of a minor' because courts have recognized that section § 261.5(c) is California's codification of its statutory rape statute."); see also Rangel-Castaneda, 709 F.3d at 377, 2013 WL 829149, at *3 ("Our analysis focuses on the particular crime at issue in this case — statutory rape."); cf. id. at 380, 2013 WL 829149, at *6 ("The government does not attempt to defend the district court's judgment on the ground that Rangel's statutory rape conviction qualified as a forcible sex offense. And for good reason. To begin with, the statutory rape provision in the crime-of-violence enhancement addresses precisely and specifically the situation before us.").
In Rangel-Castaneda, the government argued that even if the defendant's prior conviction under a Tennessee statutory rape law did not fall within the generic, contemporary definition of "statutory rape," nonetheless "the same sixteen-level crime-of-violence enhancement applies because [the] conviction qualifies as `sexual abuse of a minor.'" Rangel-Castaneda, 709 F.3d at 380, 2013 WL 829149, at *6. I believe the Fourth Circuit correctly rejected that argument:
Id. Here too, one need not define with certainty the contours of the "sexual abuse
Thus, having concluded that Rodriguez's conviction does not fall within the generic, contemporary meaning of "statutory rape," I would also reject the government's attempt to defend the imposition of the enhancement under the label of "sexual abuse of a minor."
Finally, I must express my disagreement with certain dicta in the majority opinion regarding the categorical approach more generally. My colleagues in the majority are apparently "skeptical that" the categorical approach dictated by "Taylor and its progeny lead[s] to reasonable results"; they complain that the Supreme Court's insistence upon "[r]ooting the crime-of-violence determination strictly in the elements of the statute alone has required us to perform gymnastics when evaluating when a defendant's prior conviction constitutes a crime-of-violence under the Guidelines." Maj. Op. at 559 n. 22; see also id. at 545 n. 2 (asserting that the constraints of "the categorical and modified-categorical approach in its current form" — whereby we analyze and classify the conviction, rather than the underlying facts or allegations, result in "confusion and gymnastics"); but see U.S.S.G. 2L1.2(b)(1)(A)(ii) (premising the sentencing enhancement on "a conviction for a felony that is ... a crime of violence" (emphasis added)). I strongly disagree with this sentiment, and I worry that my colleagues have forgotten that "[a]mong the considerations that led the Taylor court to conclude that a categorical approach to prior convictions was necessary were concerns about the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions." See Arguelles-Olivares v. Mukasey, 526 F.3d 171, 184 (5th Cir.2008) (citing Taylor, 495 U.S.
I do not share the majority's apparent sense of chafing under the constraints that follow from taking seriously these concerns. To the contrary, I believe the rigors of the categorical approach to be both principled and workable. Taylor made clear that a standard approach to classifying past convictions is essential to fair and uniform federal sentencing. Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143; see, e.g., Perez-Gonzalez v. Holder, 667 F.3d 622, 629 (5th Cir.2012) (Jones, C.J., dissenting) (noting "the benefit of `lenity' inhering in the ... categorical approach" and acknowledging that it is appropriate "for the law, guided by the due process clause and the rule of lenity, to give a criminal defendant the benefit of the ... categorical approach for purposes of enhanced sentencing"). Once again, I find myself in agreement with Judge Wilkinson, writing for the Fourth Circuit in Rangel-Castaneda, who observed:
Rangel-Castaneda, 709 F.3d at 379, 2013 WL 829149, at *5. With all due respect to my colleagues, it is not our place to eschew faithful application of the disciplined analysis required by precedent merely because some may become "skeptical" when it produces results favorable to criminal defendants.
For the foregoing reasons, I would vacate Rodriguez's sentence and remand for resentencing. Because the court today reaches a contrary result, I respectfully dissent.
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).
Id. at 717-18.
To facilitate the application of this method to future cases, we note LaFave identifies the following felonies at common law: murder, suicide, manslaughter, burglary, arson, robbery, larceny, rape, sodomy and mayhem. Id. § 2.1(b). He identifies the following misdemeanors at common law: assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. Id. Moreover, Blackstone's Commentaries recognizes the following common-law offenses: obstructing process, receiving stolen goods, conspiracy, perjury, bribery, extortion [categorized as offenses against public justice], 4 William Blackstone, Commentaries on the Laws of England 127-41 (1st American ed. 1772) (reprint 1992); suicide, murder, manslaughter [homicide], id. at 176-204; mayhem, abduction, rape, assault, false imprisonment, kidnapping [offenses against the persons of individuals], id. at 205-19; arson, burglary [offenses against the habitations of individuals]; id. at 220-29; larceny/theft, robbery, malicious mischief, forgery [offenses against private property], id. at 229-47.
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii) (2012).
Id.
Id.