     Case: 10-60798   Document: 00511723410    Page: 1   Date Filed: 01/12/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               January 12, 2012

                                  No. 10-60798                   Lyle W. Cayce
                                                                      Clerk

JUAN PEREZ-GONZALEZ,

                                            Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent



                          Petition for Review of an Order
                       of the Board of Immigration Appeals


Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        Juan Perez-Gonzalez petitions for review of the Board of Immigration
Appeals’ decision that he is to be removed based on having committed an
aggravated felony. Because the record does not show that the crime for which
he pled guilty was an aggravated felony, we GRANT the petition for review,
REVERSE, and REMAND for further proceedings.
                      FACTS AND PROCEDURAL HISTORY
        In 1986, a few months after his eighteenth birthday, Perez-Gonzalez pled
guilty in Montana state court to sexual intercourse without consent, a felony.
Mont. Code Ann. §45-5-503(1). The formal allegation was that Perez-Gonzalez
“did knowingly have sexual intercourse without consent with a person of the
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                                 No. 10-60798

opposite sex, not his spouse.” The trial judge accepted Perez-Gonzalez’s guilty
plea. Because of the facts alleged and lack of any criminal history, Perez-
Gonzalez was sentenced only to probation for one year.
      Two decades later, while seeking renewal of his permanent resident alien
card in San Antonio, Perez-Gonzalez was told by Immigration and Customs
Enforcement that he would be removed due to the 1986 conviction for what it
considered to be an aggravated felony.      Such an offense would make him
removable. See 8 U.S.C. § 1227(a)(2)(A)(iii).
      After receiving his notice of removal, Perez-Gonzalez appeared before an
immigration judge (IJ) and argued that (1) he was not removable because he had
not committed an aggravated felony, (2) even if he were an aggravated felon, the
removal provision was not retroactive and therefore did not cover his conduct,
and (3) he should be granted a waiver. The IJ held Perez-Gonzalez was not
entitled to a waiver; the removal statute applies retroactively; and
Perez-Gonzalez had pled guilty to a crime that constituted rape or sexual abuse
of a minor. Both are aggravated felonies.
      On appeal, the Board of Immigration Appeals (BIA) affirmed the rulings
that Perez-Gonzalez was not entitled to a waiver, that the removal provision
applies retroactively, and that he committed rape. It did not decide whether
Perez-Gonzalez committed sexual abuse of a minor.
      Perez-Gonzalez filed a timely petition for this court to review the BIA’s
decision. Our disposition makes it unnecessary to decide whether the removal
statute applies retroactively or whether he is entitled to a waiver.
                                 DISCUSSION
      The conclusion that the Montana crime of conviction was an aggravated
felony is reviewed de novo. Moncrieffe v. Holder, 662 F.3d 387, 390 (5th Cir.
2011). To decide whether a person subject to a removal order was convicted of
an aggravated felony, we start our analysis with a categorical approach. Larin-

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Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006). This analysis is to be
applied only to the statutory definition of the crime, not to the facts of the offense
as committed. Nolos v. Holder, 611 F.3d 279, 285 (5th Cir. 2010).
      If the statute provides multiple forms of the offense, and at least one is not
an aggravated felony, we use the modified categorical approach. Id. It allows
us to consider the record of conviction to determine the statutory subsection of
conviction. Id. When, as here, there is a guilty plea, this court may also
consider the “charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005)
(quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).
      In reviewing the permitted documents, we must “determine whether the
conviction was ‘necessarily’ for a particular crime defined by the statute that
meets the aggravated felony criterion.” Larin-Ulloa, 462 F.3d at 464 (quoting
Shepard, 544 U.S. at 20-21). If these documents do not establish that the
conviction was necessarily for an aggravated felony, “the government has not
met its burden of proving that the conduct for which the petitioner was convicted
constitutes a predicate offense, and the conviction may not be used as a basis for
removal.” Id. (quoting Tokalty v. Ashcroft, 371 F.3d 613, 620-21 (9th Cir. 2004)).


      I. “Aggravated Felony” and the Montana Sexual Crimes Statute
      The Montana statute that Perez-Gonzalez violated stated this: “A person
who knowingly has sexual intercourse without consent with a person of the
opposite sex commits the offense of sexual intercourse without consent.” Mont.
Code Ann. § 45-5-503(1).
      “Sexual intercourse” was defined as:
      penetration of the vulva, anus, or mouth of one person by the penis
      of another person, penetration of the vulva or anus of one person by


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      any body member of another person, or penetration of the vulva or
      anus of one person by any foreign instrument or object manipulated
      by another person for the purpose of arousing or gratifying the
      sexual desire of either party.

Mont. Code Ann. § 45-2-101(61).
      We conclude that the statute outlawed three different non-consensual acts:
penile penetration, penetration using any other body part, and mechanical
penetration. Whether all of these offenses would constitute an aggravated felony
under the Immigration and Nationalization Act determines whether the
categorical approach will allow for removal.
      Although the INA defines “aggravated felony” to include “rape,” it does not
define “rape.” The BIA also has not defined the term. This court therefore
applies the term’s “commonly understood legal meaning.” Martinez v. Mukasey,
519 F.3d 532, 540 (5th Cir. 2008). In searching for such a meaning, we do not
accept the common law’s definition if that definition would be “inconsistent with
the statute’s purpose, notably where the term’s definition has evolved.” United
States v. Guidry, 456 F.3d 493, 509 (5th Cir. 2006). We look for the modern and
generic definition of the crime. Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.
2007). The source for such a definition allows consulting such sources as the
Model Penal Code, LaFave and Scott’s treatise on Criminal Law, and
dictionaries. United States v. Herrera, 647 F. 3d 172, 176 (5th Cir. 2011). As we
will explain, Congress seems to have stayed close to the common-law definition
despite the fact that rape crimes defined by the states have a broader reach.
      At common law, “rape” meant the “unlawful sexual intercourse committed
by a man with a woman not his wife through force and against her will” where
there was “at least a slight penetration of the penis into the vagina.” Black’s
Law Dictionary (9th ed. 2009).      Implicit in this definition is that “sexual
intercourse” only means penetration of the female sex organ by the male sex


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organ. This was the meaning as understood by Congress when it passed the
federal rape law. See Oliver v. United States, 230 F. 971, 973 (9th Cir. 1916).
That understanding remained as time progressed.         As the Senate Judiciary
Committee explained in 1974, when it penned an exhaustive analysis of the
nation’s criminal laws, “current federal law does not define the offense of rape
but instead relies upon its common law meaning to supply the necessary
elements and definitions.” 3 Criminal Code Revision Compilation 595 Criminal
Justice Reform Act of 1975, a Committee Print of the Senate Judiciary
Committee, 94th Congress, December 1, 1975. The narrow reach of the law
meant that “such major crimes as forcible sodomy” were not prohibited. Id.
      In 1986, Congress passed a revision of the federal criminal law. This bill
had two effects particularly important in this discussion. First, it repealed the
federal rape law, then codified at 18 U.S.C. § 2031, replacing it with a ban on
“aggravated sexual abuse or sexual abuse.” Pub. L. No. 99-646 § 87 (Nov. 10,
1986); see 18 U.S.C. §§ 2241; 2242.        The new provision, Chapter 109A,
criminalized various “sexual acts” rather than “rape.” Congress defined “sexual
act” as:
      (A) contact between the penis and the vulva or the penis and the
      anus, and for purposes of this subparagraph contact involving the
      penis occurs upon penetration, however, slight; (B) contact between
      the mouth and the penis, the mouth and the vulva, or the mouth
      and the anus; or (C) the penetration, however slight, of the anal or
      genital opening of another by a hand or finger or by any object with
      an intent to abuse, humiliate, harass, degrade, or arouse or gratify
      the sexual desire of any person.

18 U.S.C. § 2246. At the same time, Congress amended 18 U.S.C. § 1153 – the
provision concerning rape or sodomy on Indian lands – by striking the Section’s
specific language. There was no longer any reference to “rape, involuntary
sodomy, carnal knowledge of any female, not his wife, who has not attained the
age of sixteen years, [and] assault with intent to commit rape.” In its place was

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a cross-reference to newly-minted Chapter 109A, the chapter concerning sexual
abuse.
      A decade later, Congress added rape to the list of aggravated felonies.
Congress had limitless possibilities when drafting the amendment. It could have
included “aggravated sexual assault,” “sexual abuse,” or a similar style of crime.
Or, like it did with its amendment to 18 U.S.C. § 1153, it could have inserted a
cross-reference to Chapter 109A. It did none of those things. Rather, Congress
chose to add “rape.”       See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(1).
      Congress’s understanding of the difference between “sexual assault” and
“rape” was evident when it debated replacing the rape provision with one
banning sexual abuse.      See S. Rep. 97-307, at 621-35 (1981).        Congress
demonstrated its continued institutional knowledge of the difference between the
terms by adding to the list of aggravated felonies the new term of “sexual abuse
of a minor” and also the old term of “rape.”
      Additionally, by the time Congress added “rape” as an aggravated felony,
only 23 states still used the term. See In re Rodriguez, 2005 WL 698373 (BIA
Feb. 14, 2005) (listing statutes). Of those 23, 11 remained anchored to the
common law’s meaning. See id. The remaining dozen were split, with half using
some variation of the Model Penal Code and the other half using a broad
definition that included conduct outlined in the MPC as well as digital
penetration. Id.
      Surveying the landscape as it existed when Congress added rape to the list
of aggravated felonies, we find only twelve percent of states considered digital
penetration to be rape. The District of Columbia and 88 percent of the states
disagreed. Although this breakdown may change as time progresses, it counsels
against holding that digital penetration was commonly considered rape in 1996.
      In summary, both Congress and the courts agree that the old federal rape

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statute incorporated the common law’s meaning of the term. Cognizant of rape’s
meaning, when Congress intended to expand the reach of the law, it used new
terms such as “sexual abuse.” Although the meaning of rape drifted some over
time, an overwhelming majority of states did not consider digital penetration to
be rape. Given all this, we hold that digital penetration is not “rape” as the term
is used in 18 U.S.C. § 1101(a)(43)(A).
      II. Applying the Modified Categorical Approach
      The proper question when deciding between the categorical or modified
categorical approach is whether the conduct encompassed by the elements of the
offense ordinarily would be thought of as rape. See James v. United States, 550
U.S. 192, 208 (2007). The Montana statute has three parts, each with different
elements. As we have explained, at least one of these parts does not fall within
the general meaning of the term “rape” as understood in 1996.
      We do not have to speculate that the digital-penetration provision is
irrelevant to the charges brought by prosecutors and resolved in the courts.
Rather, there is “a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic definition
of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). On numerous
occasions, the Montana Supreme Court has affirmed convictions under this
statute where the defendant’s conduct was digital penetration of the victim. See,
e.g., State v. Riggs, 113 P.3d 281, 283-84 (Mont. 2005); State v. Insua, 84 P.3d 11,
17-18 (Mont. 2004); see also State v. Goodenough, 245 P.3d 14, 20 (Mont. 2010)
(a person commits sexual intercourse without consent by digitally penetrating
a victim).
      As the plain language of the Montana statute shows, and case law
confirms, Perez-Gonzalez would have violated the law if he digitally penetrated
the victim. Because this conduct is not covered by § 1101(a)(43)(A), it is a
realistic possibility that Perez-Gonzalez pled guilty to a crime that would not be

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considered rape under federal law. We now apply the modified categorical
approach to decide “whether the conviction was ‘necessarily’ for a particular
crime defined by the statute that meets the aggravated felony criterion.” Larin-
Ulloa, 462 F.3d at 464 (citing Shepard, 544 U.S. at 20-21). In reaching our
conclusion, we may review only certain types of documents.
       In this case, only two documents meet our criteria: the charging document
and the judge’s order accepting Perez-Gonzalez’s guilty plea.1 The charging
document claims that Perez-Gonzalez committed “sexual intercourse without
consent, a felony as specified in Section 45-5-503, M.C.A.” The facts, sparse as
they are, allege that he “did knowingly have sexual intercourse without consent
with a person of the opposite sex, not his spouse, namely, M.M.” The judge’s
order adds little detail. It recounts how “the defendant then entered his plea of
‘guilty’ to the charge of sexual intercourse without consent, a felony, as specified
in Section 45-5-503, M.C.A.” Although the order explained that the judge
questioned Perez-Gonzalez about the facts of the crime, it does not memorialize
the questions or answers in writing. It is therefore impossible to know under
what subsection Perez-Gonzalez pled guilty.
       Perez-Gonzalez was charged and convicted of felonious sexual intercourse
without consent. Perez-Gonzalez did not “necessarily” commit the aggravated
felony of rape, rather than a lesser crime. Because we are not convinced that
Perez-Gonzalez pled guilty to a crime that can be categorized as rape under §
1101(a)(43)(A), we GRANT the petition for review, REVERSE the BIA’s decision,
and REMAND to the BIA.




       1
         The record is silent as to whether the BIA reviewed any other documents. In its
decision affirming the IJ, the BIA notes that the record in this case extends beyond the
charging document and the judge’s order. The Board does not, however, say whether it
considered the entire record. In a footnote in its brief, the government assures us that the BIA
did not consider these banned documents. That was the proper decision.

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EDITH H. JONES, Chief Judge, dissenting:


      Although my colleague has stated the applicable law clearly and concisely,
I part company with his application of the "modified categorical approach" to this
case. To be precise, I believe the Information filed against the petitioner in the
Montana court states exactly what crime Perez-Gonzalez committed and that the
likelihood that the Montana statute is employed outside the categories of rape
or child sexual abuse is minimal.
      First, the Information charged Petitioner as follows:
      Philip N. Carter, Deputy County Attorney of Richland County,
      Montana, deposes and says that on or about the 22nd day of June,
      1986, at the County of Richland, State of Montana, the above named
      defendant committed the offense of SEXUAL INTERCOURSE
      WITHOUT CONSENT, a felony as specified in Section 45-5-503,
      M.C.A.


      The facts constituting the offense are:


      That on or about the 22nd day of June, 1986, and prior to the filing
      of this Information, one Juan Gonzalez Perez, then and there being
      and being then and there in the County of Richland, State of
      Montana, did knowingly have sexual intercourse without consent
      with a person of the opposite sex, not his spouse, namely, M.M.


The Information does not suggest or state "digital penetration," it states rape
in the common law generic sense. That the defendant's factual conduct as
charged embraced the terminology of the statute may be "sparsely" described,
but it is hard to define sexual intercourse in some other way. In other words,
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                                      No. 10-60798

had the defendant committed anal or oral penetration, or even digital
penetration, those acts would violate the statute and could have been used in
the factual statement, but they were not. Further, the difference between the
statutory provision that was violated and the facts on which the charge is
predicated is clear in this Information, another indication that the factual
statement speaks of rape because that is what the petitioner did.
       Second, the majority cites three Montana cases to support the contention
there is “a realistic probability, not a theoretical possibility” (Gonzalez v.
Duenas-Alvarez, 549 U.S. 183, 193, 127 S. Ct. 815 822 (2007)) that Montana
prosecutes sexual crimes involving digital penetration. I cordially disagree with
this reasoning. Two of those Montana cases concern patterns of domestic sexual
abuse of minor children, a category of offense separately listed as an aggravated
felony authorizing an alien’s removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
Petitioner should not receive the benefit of “lenity” inhering in the modified
categorical approach when the crimes prosecuted outside the scope of rape in the
Montana statute are equally fatal under the immigration laws. The remaining
single conviction for digital penetration is hardly persuasive of a “realistic”
possibility that Montana generally prosecutes such conduct as a felony offense.
One robin does not make a spring.
       Finally, felony rape is the only act to which Petitioner could have pled
guilty under this statute. Courts are currently required pursuant to Shepard to
close our eyes to the underlying facts of prior criminal conduct unless it is proved
up by such official means as judgments, jury charges, transcribed plea
proceedings, or charging documents.1 I rely here on the Information, a charging
document. But whether the "modified categorical approach" conforms to the

       1
          The Supreme Court also applied the modified categorical approach in the
immigration context in Gonzalez, supra. It cited the trend of the circuit courts in so doing.
The Supreme Court was not asked in that case to consider the special purposes of the
immigration statutes vis a vis the modified categorical approach.

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purposes or procedures of the INA is not clear to me. Here, an affidavit of the
Deputy County Attorney filed in support of the Information details the
investigation in a 3 page memorandum, the substance of which is that M.M., a
fourteen-year-old, was caught in a car with the petitioner while both were semi-
clad. An empty condom package was found at the scene. After initially denying
that she engaged in sexual intercourse with the petitioner, she admitted to the
events while being taken to a hospital for physical testing. It is one thing for the
law, guided by the due process clause and the rule of lenity, to give a criminal
defendant the benefit of the modified categorical approach for purposes of
enhanced sentencing. I question whether the immigration policy of the United
States need also favor lenity for those wishing to remain here after felony rape
convictions. See generally, Nijhawan v. Holder, 557 U.S. 29, ___, 129 S. Ct. 2294,
2303 (2009), (“For one thing, we have found nothing in prior law that so limits
the immigration court [regarding evidence admitted under the modified
categorical approach] . . . .    Further, a deportation proceeding is a civil
proceeding in which the Government does not have to prove its claim ‘beyond a
reasonable doubt.’ ”)
      I respectfully dissent.




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