                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  July 14, 2004
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                       ______________________                       Clerk

                            No. 03-10535
                       ______________________

                      UNITED STATES OF AMERICA

                                                    Plaintiff-Appellee
                                 versus

                    JUAN ARTURO PALOMARES-CANDELA

                                                   Defendant-Appellant

         ___________________________________________________

         Appeal from the United States District Court for
       the Northern District of Texas, San Angelo Division
                      (USDC No. 6:02-CR-051)
_________________________________________________________________
       ___________________________________________________


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:*

     Juan    Palomares-Candela   (“Candela”)    appeals   the    sentence

stemming from his conviction for being found unlawfully in the U.S.

subsequent to deportation.   Candela argues that the district court

erred in applying a 16-level enhancement based on its conclusion

that Candela had been convicted of a crime of violence prior to his

deportation.   We vacate the sentence and remand for re-sentencing.



     *
      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this opinion should not be published and is not precedent except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.

                                   1
                                 BACKGROUND

       On March 13, 2003, Candela pleaded guilty to being found

unlawfully in the United States subsequent to deportation.                The

presentence report (“PSR”) assessed a base level of 8 pursuant to

U.S.S.G. § 2L1.2.        The PSR added 16 levels pursuant to section

2L1.2(b)(1)(A) because, the PSR alleged, Candela had been convicted

of a “crime of violence” prior to his deportation.                 In 1993,

Candela pleaded guilty to attempted second degree sexual assault in

Colorado (the “prior offense”); he was deported in 2001.             Taking

into    account    a     three-level       reduction   for   acceptance    of

responsibility, resulting in a total offense level of 21, and a

criminal history category of IV, the guideline sentencing range was

57 to 71 months.       The district court sentenced Candela to 71 months

to be followed by 3 years of supervised release.             Candela timely

appealed.

The Prior Offense

       At the time of Candela’s prior offense, Colorado defined

sexual assault in the second degree as follows:



            (1) An actor who knowingly inflicts sexual
            penetration or sexual intrusion on a victim commits
            sexual assault in the second degree if:

            (a) The actor causes submission of the victim to
            sexual penetration by any means other than those
            set forth in section 18-3-402, but of sufficient
            consequence   reasonably   calculated    to cause
            submission against the victim’s will; or


                                       2
          (b) The actor causes submission of the victim to
          sexual intrusion by any means other than those set
          forth in section 18-3-402, but of sufficient
          consequence   reasonably    calculated   to   cause
          submission against the victim’s will; or
          (c) The actor knows that the victim is incapable of
          appraising the nature of the victim’s conduct; or
          (d) The actor knows that the victim submits
          erroneously, believing the actor to be the victim’s
          spouse; or
          (e) At the time of the commission of the crime, the
          victim is less than fifteen years of age and the
          actor is at least four years older than the victim
          and is not the spouse of the victim; or
          (f) Repealed, L. 90, p. 1033, 25 effective July 1,
          1990.
          (g) The victim is in custody of law or detained in
          a hospital or other institution and the actor has
          supervisory or disciplinary authority over the
          victim and uses this position of authority, unless
          the sexual intrusion is incident to a lawful
          search, to coerce the victim to submit; or
          (h) The actor engages in treatment or examination
          of a victim for other than bona fide medical
          purposes or in a manner substantially inconsistent
          with reasonable medical practices.

          (2) Sexual assault in the second degree is a class
          4 felony.


COLO. REV. STAT. § 18-3-403 (1992).   Further, Colorado’s criminal

attempt statute dictates that “a person commits a criminal attempt

if, acting with the kind of culpability otherwise required for

commission of an offense, he engages in conduct constituting a

substantial step toward the commission of the offense.”   COLO. REV.

STAT. § 18-2-101 (1992).

     The “complaint/information” charging Candela with attempted

second degree sexual assault does not specify which subsection of

the statute Candela allegedly violated.   Instead, it simply states


                                3
that “on the 3rd day of October, A.D. 1992 ... JUAN A. PALOMARES did

unlawfully and feloniously attempt to commit the crime of 2nd degree

Sexual Assault    ...   and   did   engage   in   conduct      constituting    a

substantial step toward the commission of said crime.”1                 Candela

pleaded guilty to the charge, was convicted, and was sentenced to

two years of probation.

                                ANALYSIS

Standard of Review

     Candela   agrees   that,   because      he   did   not    object   to   the

increased offense level at trial, the enhancement is reviewed for

plain error.   United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th

Cir. 2002).    “Plain error is defined as (1) an error; (2) that is

clear or plain; (3) that affects the defendant’s substantial

rights; and (4) that seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.”               United States v.

Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).        The imposition of a 16-

level enhancement for a prior offense that does not fall within

that sentencing guidelines’ definition of a “crime of violence”

     1
       Candela filed a motion to supplement the record on appeal
requesting permission to add the documents charging him with
attempted second degree sexual assault in Colorado as well as the
judgment convicting him. This court has the authority to
supplement the record on appeal, even though the materials were
not reviewed by the district court. See Gibson v. Blackburn, 744
F.2d 403, 405 n.3 (5th Cir. 1984) ("Although a court of appeals
will not ordinarily enlarge the record to include material not
before the district court, it is clear that the authority to do
so exists."). Because these materials inform our analysis, we
grant Candela’s motion to supplement the record.

                                     4
affects the substantial rights of the defendant and the integrity

of the judicial proceedings. Gracia-Cantu, 302 F.3d at 313.    Thus,

the question is reduced to whether the enhancement is an error that

is clear or plain.

“Crime of Violence”

     The sentencing guidelines provide for a 16-level enhancement

for persons convicted of unlawfully entering or remaining in the

United States who were previously deported after a conviction for

a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(2). The comments

to this guideline define “crime of violence” as follows.



          “Crime of violence”-

               (I)    means an 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; and

               (II) includes      murder,      manslaughter,
                    kidnapping, aggravated assault, forcible
                    sex offenses (including sexual abuse of a
                    minor),   robbery,   arson,    extortion,
                    extortionate extension of credit, and
                    burglary of a dwelling.


U.S.S.G. § 2L1.2, comment n.1(B)(ii).

     A conviction only falls under the first paragraph if an

element of the prior offense requires an intentional use of force.

United States v. Vargas-Duran, 356 F.3d 598, 599-600 (5th Cir.

2004).   The government concedes that Candela’s prior conviction


                                  5
does not contain an element requiring the intentional use of force

and, thus, does not qualify as a crime of violence under the first

paragraph.    The    second   paragraph   enumerates      certain   crimes,

including “forcible sex offenses,” that are per se crimes of

violence without regard to whether they have the use of force as an

element. See U.S. v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002)

(“the offenses listed in subparagraph II need not show actual,

attempted, or threatened use of force, for the precise reason that

they are explicitly listed”).     The government contends that second

degree sexual assault constitutes a “forcible sex offense” and,

therefore,   that   the   district    court   did   not   clearly   err   in

concluding that Candela was convicted of a crime of violence.

“Forcible Sex Offense”

     The guidelines do not define the term “forcible sex offense.”

But this court has recently wrestled with the meaning of this term

within the context of Guideline 2L1.2.

          [W]hen one specifically designates a sex offense as
          a "forcible" sex offense, one probably does so in
          order to distinguish the subject sex offense as one
          that does require force or threatened force
          extrinsic to penetration.

United States v. Sarmiento-Funes, 2004 U.S. App. LEXIS 12205, at

*23-24 (5th Cir.    June 21, 2004).

     The prior offense at issue in Sarmiento-Funes was a 2002

Missouri conviction for "sexual assault,” which the state defined

as follows: "A person commits the crime of sexual assault if he has


                                     6
sexual intercourse with another person knowing that he does so

without that person's consent." MO. ANN. STAT. § 566.040(1) (West

1999).   Id. at *1-2.    The court explained:



           Although the Missouri sexual assault statute speaks
           of intercourse “without consent,” the state
           statutes explicitly distinguish between “assent”
           and “consent,” providing that “assent” sometimes
           does not count as “consent.” The Missouri sexual
           assault statute therefore reaches intercourse to
           which the victim assents, though that assent is a
           legal nullity, such as when it is the product of
           deception or a judgment impaired by intoxication.

Id. at *11.    The court further noted that, in United States v.

Houston, 364 F.3d 243, 246 (5th Cir. 2004), this court held that

illegal intercourse with consent-in-fact, i.e. assent, does not

involve the use of force and thus does not fall under the first

paragraph.    Id. at *12.

     The court concluded that Sarmiento-Funes’ prior offense for

sexual assault in Missouri likewise could not be considered a

forcible sex offense under the second paragraph because “the

adjective ‘forcible’ centrally denotes a species of force that

either approximates the concept of forcible compulsion or, at

least, does not embrace some of the assented-to-but-not-consented-

to conduct at issue here.”    Id. at *22-23.      The court surmised that

“the phrase ‘forcible sex offense’ used in paragraph (II) of §

2L1.2 cmt. n.1(B)(ii) may well be a term of art that encompasses a

narrower   range   of   conduct   than   does   paragraph   (I)'s   general


                                     7
definition referring to crimes that ‘have as an element the use,

attempted use, or threatened use of physical force against the

person of another.’"       Id. at *24.

     The Colorado statute at issue here is similar to the Missouri

statute     in   that   there   are   non-forcible   ways   to   violate   the

statute.2    For example, the perpetrator may be an 18 year old male

having sexual relations with a female one day younger than 15.             Cf.

Houston,     364   F.3d    at   247   (holding   that   consensual    sexual

intercourse between a 20 year old male and a female a day under 17

does not present a serious potential risk of physical injury).              Or

the perpetrator may simply fool the victim into believing that they

are married, in which case the victim is also assenting, or

consenting in fact, although the victim’s consent is not legally

effective.

     Because there are non-forcible ways to violate the Colorado

statute, Candela’s prior conviction cannot be said to constitute a

forcible sex offense.       As the Colorado statute does not contain an



     2
      As noted above, the charging instrument is silent as to
which subsection of the statute Candela allegedly violated in
committing the prior offense. Thus, even reference to the
indictment would not change our conclusion. If an indictment is
silent as to the offender’s actual conduct, we will proceed under
the assumption that his conduct constituted the least culpable
act satisfying the count of conviction. Houston, 364 F.3d at
246. While one could argue about what constitutes the least
culpable act violating the Colorado statute, it is nevertheless
clear that the Colorado statute is similar to the Missouri
statute in that there are non-forcible ways to violate the
statute.

                                        8
element requiring the intentional use of force and as Candela’s

prior conviction cannot be classified as a forcible sex offense,

the district court clearly erred in concluding that Candela’s prior

conviction constituted a crime of violence.

                              CONCLUSION

     Candela’s   prior   conviction   was   not   for   an   offense   that

contained an element requiring the intentional use of force and

also cannot be classified as a conviction for a forcible sex

offense.   The district court therefore clearly erred in applying

the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(2); and,

for the reasons stated above, that error meets the definition of

plain error because it affects Candela’s substantial rights and

seriously affects the fairness, integrity, or public reputation of

the judicial proceedings.    We VACATE Candela’s sentence and REMAND

this case to the district court for RE-SENTENCING.




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