     Case: 12-40427       Document: 00512315128         Page: 1     Date Filed: 07/22/2013




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

                                                                            FILED
                                                                            July 22, 2013
                                       No. 12-40427
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE JUAN CARRILLO-ROSALES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1963-1


Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.
PER CURIAM:*
       In certain circumstances, the Federal Sentencing Guidelines instruct a
district court to increase a defendant’s offense level by sixteen points if he has
previously been convicted of a “crime of violence.” The district court applied that
enhancement when sentencing Jose Juan Carrillo-Rosales, who had earlier been
convicted of third-degree rape. Carrillo contends, for the first time on appeal,




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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that the district court erred by applying the enhancement. Perceiving no
reversible error, we AFFIRM.


                                                 I.
       Carrillo is a citizen of Mexico. He came to the United States unlawfully
when he was three years old. At twenty, he committed two counts of third-degree
rape, a crime under Washington state law.1 Carrillo pleaded guilty to both
counts. In his written “Statement of Defendant on Plea of Guilty,” he admitted
that he “engaged in sexual intercourse with a woman who was not [his] spouse
who did not have the legal ability to give consent due to her age of 13 years at
the time.” Soon thereafter, he was deported to Mexico.
       Carrillo reentered the United States unlawfully. Immigration authorities
“found” him in Texas over a decade later.2 He pleaded guilty to violating
8 U.S.C. § 1326, which proscribes being “found in” the United States after
unlawful reentry.3 This appeal concerns only his sentence.
       In anticipation of sentencing, a probation officer prepared a Presentence
Investigation Report (PSR). The PSR advised that Carrillo’s base offense level
should be increased from 8 to 24 because he “was deported after sustaining a
felony conviction for a crime of violence”—namely, third-degree rape.4 The
district court agreed and sentenced Carrillo to 41 months of imprisonment, the
very bottom of his Guidelines range. Carrillo appeals, arguing that the district
court should not have applied the crime-of-violence enhancement.




       1
           See WASH. REV. CODE § 9A.44.060.
       2
        See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (discussing
“found in” offenses).
       3
           See 8 U.S.C. § 1326(a) and (b); see also 6 U.S.C. §§ 202(3) and (4), 557.
       4
           See U.S.S.G. § 2L1.2(b)(1)(A)(ii).

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                                               II.
      The government urges that Carrillo waived any claim of error. We need
not engage this threshold dispute over preservation of error. By recent decisions
of the Supreme Court and this Court, there was no error and the judgment must
be affirmed.
      As relevant here, section 2L1.2(b)(1)(A)(ii) of the Federal Sentencing
Guidelines instructs a district court to increase a defendant’s offense level by 16
“[i]f the defendant previously was deported . . . after . . . a conviction for a felony
that is . . . a crime of violence.”5 An application note defines “crime of violence”
to mean “any of the following offenses under federal, state, or local law:”
      Murder, manslaughter, kidnapping, aggravated assault, 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), statutory rape, sexual abuse
      of a minor, robbery, arson, extortion, extortionate extension of
      credit, burglary of a dwelling, or any other 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.6
As this commentary is not “plainly erroneous or inconsistent with the
guideline[],” we are bound to follow it.7 Accordingly, there are two ways an
offense can be a crime of violence. First, it can be one of the enumerated
offenses—such as a forcible sex offense, statutory rape, or sexual abuse of a
minor. Second, it can satisfy the catch-all provision, by having “as an element
the use of force, attempted use, or threatened use of physical force against the
person of another.” If the offense of which Carrillo was convicted falls into either
category, the district court did not err—plainly or otherwise.




      5
          U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      6
          Id. § 2L1.2 cmt. n.1(B)(iii).
      7
          United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc).

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       This case concerns only enumerated offenses.8 The government argues that
Carrillo’s third-degree-rape offense qualifies as “statutory rape” and as a
“forcible sex offense[].” Carrillo does not dispute that—at twenty years old—he
had sex with a thirteen-year-old girl. He does not dispute that—at thirteen years
old—she was legally incapable of consenting to their sexual contact. But Carrillo
does dispute the government’s use of that factual information, arguing that we
may look at the circumstances of his offense only to determine which portion of
Washington’s third-degree-rape law he violated. If that portion of the law can be
violated in a way that is not “statutory rape” or a “forcible sex offense[],” he
argues, then he was not convicted of those enumerated offenses.
       After the parties completed their briefing, our en banc Court clarified how
to determine whether an offense of conviction qualifies as an enumerated
offense.9 It explained:
       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.10




       8
           The government does not contend otherwise.
       9
          This decision is controlling, since we assess whether an error is plain based on the law
in effect at the time of our decision—not the district court’s decision. See Henderson v. United
States, 133 S. Ct. 1121, 1130–31 (2013); United States v. Escalante-Reyes, 689 F.3d 415, 418
(5th Cir. 2012) (en banc).
       10
            United States v. Rodriguez, 711 F.3d 541, 544 (5th Cir. 2013) (en banc).

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In Descamps v. United States,11 the Supreme Court reinforced our focus on “the
elements of the state statute of conviction.”12 It explained that the elements of
a state-law offense determine what a defendant was actually convicted of, while
the facts underlying that offense demonstrate only that a defendant may have
“committed [an offense], and so hypothetically could have been convicted under
a law criminalizing that conduct.”13 Although Descamps interpreted a different
provision of law (and did so with Sixth-Amendment concerns in the background),
its textual analysis applies here, too. Moreover, Descamps extended the line of
cases beginning with Taylor v. United States,14 the precise line from which our
en banc court in Rodriguez derived its approach.15 Our en banc court did
opine—pre-Descamps—that it was “skeptical that Taylor and its progeny lead
to reasonable results if lower courts must disregard facts that show that the
defendants’ conduct, in essence, constituted a crime of violence.”16 Reasonable
or not, Descamps makes pellucidly clear that while conduct can be “in essence”
a crime of violence, a conviction is a crime of violence (or not) based only on its
underlying elements.17
       Of course, if the state-law statute of conviction “sets out one or more
elements of the offense in the alternative—for example, stating that burglary
involves entry into a building or an automobile,” we may consult “a limited class



       11
            No. 11-9540, 2013 WL 3064407 (2013).
       12
            Rodriguez, 711 F.3d at 544.
       13
            Descamps, 2013 WL 3064407, at *9.
       14
            495 U.S. 575 (1990).
       15
        See, e.g., Rodriguez, 711 F.3d at 544, 549, 553–56; see also id. at 553 (“We adopt this
approach based on our close review of Taylor.”).
       16
            Id. at 561 n.25.
       17
         Cf. U.S.S.G. § 2L1.2(b)(1)(A)(ii) (asking whether “the defendant previously was
deported . . . after . . . a conviction for a felony that is a crime of violence” (emphasis added)).

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                                        No. 12-40427

of documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior conviction.”18 But our focus
is always on the applicable elements of the offense of conviction. With that in
mind, we turn to Carrillo’s conviction.
       Carrillo was convicted under Washington’s third-degree rape statute. At
the time of his conviction, that statute was violated when:
       (1) . . . under circumstances not constituting rape in the first or
       second degrees, [a] person engage[d] in sexual intercourse with
       another person, not married to the perpetrator:
                 (a) Where the victim did not consent as defined in RCW
                 9A.44.010(7), to sexual intercourse with the perpetrator
                 and such lack of consent was clearly expressed by the
                 victim’s words or conduct, or
                 (b) Where there [wa]s threat of substantial unlawful
                 harm to the property rights of the victim.19
As set out in RCW 9A.44.010(7), “[c]onsent means that at the time of the act of
sexual intercourse or sexual contact there are words or conduct indicating freely
given agreement to have sexual intercourse or sexual contact.”20
       The parties rightly agree that our focus is on paragraph (1)(a).21 Per our
recent en banc opinion, we must first identify the elements of the enumerated
offense at issue (steps 1–3) and then “look to the elements of the state statute of
conviction and evaluate whether those elements comport with the generic




       18
         Descamps, 2013 WL 3064407, at *1; see also Rodriguez, 711 F.3d at 549 n.8
(endorsing this “modified categorical approach”).
       19
            WASH. REV. CODE § 9A.44.060.
       20
            Id. § 9A.44.010(7).
       21
          We may consider the document accompanying Carrillo’s plea to determine whether
he violated paragraph (1)(a) or (1)(b). Cf. Shepard v. United States, 544 U.S. 13, 20–21 (2005)
(authorizing consideration of “a transcript of [a] plea colloquy[,] . . . written plea agreement
presented to the court, or . . . a record of comparable findings of fact adopted by the defendant
upon entering the plea”).

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meaning of the enumerated offense category.”22 “If any set of facts would support
a conviction without proof of [a] component, then the component most decidedly
is not an element—implicit or explicit—of the crime.”23
       We begin with statutory rape. A person commits statutory rape only when
he has sexual contact with a person under the age of consent (as that age is
defined by state statute).24 Paragraph (1)(a) can be violated regardless of the age
of the victim. Accordingly, the age of the victim is not an element of a paragraph
(1)(a) violation, and Carrillo was not convicted of statutory rape—even if, to
borrow a phrase from Descamps, he “hypothetically could have been convicted
under a law criminalizing that conduct.”25 Thus, Carrillo’s conviction qualifies
as a crime of violence only if it is a forcible sex offense.
       “[F]orcible sex offenses” include offenses in which “consent to the conduct
is not given or is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced.”26 This language is clear (as relevant here),
so we need only determine whether the elements of Washington’s third-degree
rape statute entail such an offense. We hold that they do. A person is guilty of
third-degree rape only if his victim clearly expresses her lack of consent.27 If a
victim clearly expresses that she does not consent, then her “consent to the




       22
            Rodriguez, 711 F.3d at 544.
       23
            Vargas-Duran, 356 F.3d at 605.
       24
            See Rodriguez, 711 F.3d at 561–62.
       25
            2013 WL 3064407, at *9.
       26
            U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       27
          See WASH. REV. CODE § 9A.44.060(1)(a). Washington does, of course, define “consent”
to mean a lack of “words or conduct indicating freely given agreement.” Id. § 9A.44.010(7).
Carrillo could have argued that a person could “consent” without expressing “consent”—and
that the possibility of valid, unexpressed consent means that the elements of third-degree rape
do not entail a forcible sex offense. This possibility is of no moment, however, as Washington
requires that the lack of consent itself be clearly expressed.

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conduct is not given.”28 Thus, because the third-degree-rape statute requires that
“consent to the conduct is not given,” a violation of that statute is a forcible sex
offense within the meaning of the Guidelines.29 Consequently, the district court
was correct to apply the crime-of-violence enhancement.30
       Carrillo contends that he is not guilty of a forcible sex offense because his
conviction did not require proof of “coercion.” The crime-of-violence enhancement
is appropriate so long as a conviction entails a forcible sex offense—and forcible
sex offenses come in many forms. If a conviction requires proof that “consent to
the conduct is . . . incompetent,” it need not also require proof that, for example,
“consent to the conduct is coerced.” Put differently, whether a statute requires
coercion is irrelevant so long as its elements require proof of a forcible sex
offense—and Washington’s third-degree rape statute does precisely that.31


                                                 ***
       As Carrillo’s third-degree rape conviction was properly classified as a
crime of violence, we AFFIRM.




       28
            U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       29
            See id.
       30
         Cf. United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. 2013) (holding that a
violation of Washington’s third-degree rape statute was a crime of violence). We take no
position on whether Gallegos-Galindo’s rationale is consistent with Rodriguez.
       31
          Carrillo also argues that Washington law determines “consent” from the perspective
of the victim, and appears to contend that the Guidelines require consideration of only the
perpetrator’s perspective. In other words, Carrillo may be asking us to read “consent is not
given”—the phrase in the Guidelines’ commentary—to mean that “consent is understood by
the perpetrator not to be given.” Even if Carrillo is making this argument, it lacks force: it is
not plain error to conclude that “consent is not given” when a defendant mistakenly believes
that someone consents—but she does not, in fact, do so.

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