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Criminal – Sentencing – Illegal Reentry – ‘Crime Of Violence’

The 4th Circuit disagrees with sister circuits and holds that a nonconsensual sexual offense not based on force still is a prior “crime of violence” under USSG § 2L1.2(b)(1)(A) that applies to enhance a defendant’s present sentence for illegal reentry and fraudulent use of a green card.

Defendant, a native of Honduras, unlawfully entered the U.S. in 2000. In 2002, he was convicted in Maryland of second-degree rape, in an information that did not detail the specific conduct underlying the rape offense or which of the three subparts of article 27, section 463 of the Maryland Code was charged. His nine-year sentence on a guilty plea was suspended and he was deported. He unlawfully reentered in 2006 and sought to use a false permanent resident card.

At sentencing and on appeal, defendant challenges the 16-level increase recommended by the PSR, contending the rape offense was improperly classified as a crime of violence.

This appeal presents a case of first impression in this court: whether a sex offense perpetrated in the absence of consent – and which does not have as an element the use, attempted use or threatened use of physical force – constitutes a “crime of violence” under the sentencing guidelines. Defendant contends the rape offense here is not a “crime of violence” because it is not a “forcible sex offenses” and not every violation of the statute has as an element the use or attempted use of force.

At least two circuit courts have recognized a distinction between a sexual offense that results from force and a sexual offense committed in the absence of consent. In contrast, at least two other circuits have addressed this question and reached the contrary conclusion – that a sex offense perpetrated without consent constituted a “forcible sexual offense” without requiring the element of physical force. The position we adopt – that the Maryland offense of second-degree rape, which criminalizes nonconsensual sex absent the element of physical force, is nevertheless a “forcible sexual offense” – is consistent with this latter group of circuits. Here, we conclude that under the statute, the rape offense is a “forcible sex offense” and thus a “crime of violence” under § 2L1.2.

The district court correctly applied the 16-level increase to defendant’s sentence.

U.S. v. Chacon (King, J.) No. 07-4439, July 14, 2008; USDC at Alexandria, Va. (Cacheris) Sapna Mirchandani, FPD, for appellant; Tamara H. Kassabian, AUSA, for appellee. VLW 008-2-122, 12 pp.

VLW 008-2-122

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