               REVISED AUGUST 24, 2011
       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                Fifth Circuit

                                                                 FILED
                                                                August 2, 2011

                                No. 10-40179                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee
v.

JAVIER DIAZ–CORADO,

                                         Defendant - Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:
     Defendant–Appellant Javier Diaz–Corado pled guilty to illegally
reentering the country after having been deported and was sentenced to 51-
months’ imprisonment. On appeal, he challenges the district court’s imposition
of a sixteen-level sentence enhancement under United States Sentencing
Guidelines Manual § 2L1.2, arguing that his previous Colorado criminal
conviction for unlawful sexual contact was not a “crime of violence.”       We
AFFIRM.
                                   No. 10-40179

                     I. Factual & Procedural Background
         Javier Diaz–Corado is a Guatemalan citizen who first entered the country
on a work permit in 1993. In 1999, Diaz–Corado was charged with the Colorado
crimes of aggravated incest on a relative younger than ten, two counts of sexual
assault of a child, and unlawful sexual contact. A warrant was issued for his
arrest. In 2008, Diaz–Corado pled guilty to one count of unlawful sexual contact,
in violation of Colorado Revised Statutes § 18-3-404(1)(a), and the remaining
charges in the Colorado indictment were dismissed.            On June 23, 2009,
Diaz–Corado was deported to Guatemala.
         On September 2, 2009, Diaz–Corado was apprehended by Border Patrol
Agents in Brooks County, Texas. Diaz–Corado pled guilty to illegal reentry in
violation of 8 U.S.C. § 1326. The presentence investigation report (“PSR”) in
Diaz–Corado’s case recommended a total offense level of twenty-one. This
reflected a base offense level of eight for illegal reentry, see U.S.S.G. § 2L1.2(a)
(Nov. 2008), a sixteen-level increase for Diaz–Corado’s unlawful sexual contact
conviction on the grounds that it was a “crime of violence,” see id.
§ 2L1.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility,
see id. § 3E1.1(a), (b). Given Diaz–Corado’s criminal history category of II, the
PSR stated that the advisory Guideline range for Diaz–Corado’s offense was
forty-one to fifty-one months. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
         Diaz–Corado objected to the PSR on the ground that his conviction for
unlawful sexual contact was not a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A) because it was not a forcible sex offense and was not an offense
that has as an element the use, attempted use, or threatened use of physical
force.    See   U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).   Diaz–Corado justified this
characterization of his conviction because it could be committed without any
force or compulsion. The district court overruled Diaz–Corado’s objection to the
PSR. Turning to § 3553(a), the district court stated that it had considered “all

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of the factors in 3553(a), including the guidelines . . . and the need to prevent
future criminal conduct . . . [a]nd most particularly to protect citizens.” The
district court then sentenced Diaz–Corado to fifty-one months’ imprisonment.
Diaz–Corado appealed.
                                  II. Discussion
      The sole basis for Diaz–Corado’s appeal is that the district court erred
when it concluded that his conviction for unlawful sexual contact was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which resulted in a sentence beyond
the correct Guidelines range. As a general matter, the reasonableness of the
sentence imposed by the district court is reviewed for an abuse of discretion.
United States v. Lopez–Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) (citing Gall
v. United States, 552 U.S. 38 (2007)). But this court reviews de novo the district
court’s interpretation and application of the Guidelines, including whether “a
defendant’s prior conviction qualifies as a ‘crime of violence’ within the meaning
of [U.S.S.G. § 2L1.2].” United States v. Hernandez–Galvan, 632 F.3d 192, 196
(5th Cir. 2011) (citation omitted).      When interpreting the Guidelines, the
relevant Commentary in the Guidelines Manual “is authoritative unless it
violates the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993).
      The Guidelines instruct that a defendant’s offense level is to be increased
by sixteen levels where he was “previously deported, or unlawfully remained in
the United States, after a conviction for a felony that is . . . a crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). For purposes of Diaz–Corado’s appeal, the relevant
Commentary defines a crime of violence as: (1) “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)”; or (2) “any other
offense under federal, state or local law that has as an element the use,

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attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Thus, an offense qualifies as a crime
of violence if it “has physical force as an element” or “qualifies as one of the
enumerated offenses” in the Commentary. United States v. Gomez–Gomez, 547
F.3d 242, 244 (5th Cir. 2008) (en banc). “If the statute of conviction prohibits
behavior that is not within the plain, ordinary meaning of the enumerated
offense, the prior offense is not a ‘crime of violence.’ ”      United States v.
Olalde–Hernandez, 630 F.3d 372, 374 (5th Cir. 2011) (citation omitted). In
determining whether a crime qualifies as a crime of violence, this court looks
“only to the particular subdivision of the statute under which the defendant was
convicted” rather than the defendant’s specific conduct.        Id. (citation and
internal quotation marks omitted).
      In this case, Diaz–Corado pled guilty to violating Colorado Revised
Statutes § 18-3-404(1)(a), which states that “[a]ny actor who knowingly subjects
a victim to any sexual contact commits unlawful sexual contact if . . . [t]he actor
knows that the victim does not consent.” For purposes of unlawful sexual
contact, “consent” is defined as “cooperation in act or attitude pursuant to an
exercise of free will and with knowledge of the nature of the act. . . . Submission
under the influence of fear shall not constitute consent.” COLO. REV. STAT. § 18-
3-401(1.5). The statute defines “sexual contact” as
      the knowing touching of the victim’s intimate parts by the actor, or
      of the actor’s intimate parts by the victim, or the knowing touching
      of the clothing covering the immediate area of the victim’s or actor’s
      intimate parts if the sexual contact is for the purposes of sexual
      arousal, gratification, or abuse.
Id. § 18-3-401(4).
      Pursuant to the definition of “forcible sex offense” found in the
Commentary to § 2L1.2, we conclude that unlawful sexual contact in violation
of Colorado Revised Statute § 18-3-404(1)(a) is a forcible sex offense.


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Diaz–Corado’s unlawful sexual contact conviction necessarily involved contact
with the victim whom Diaz–Corado knew did not “cooperate in act or attitude”
with that contact. As noted above, the Commentary to the Guidelines defines
a forcible sex offense as “including where consent to the conduct is not given or
is not legally valid.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added); see also
United States v. Herrera, — F.3d —, 2011 WL 2698982, at *5 (5th Cir. July 13,
2011) (applying Commentary definition to conclude that an Arkansas conviction
was a crime of violence). The language regarding consent in the Commentary
was added in 2008 to make it “clear that forcible sex offenses, like all offenses
enumerated in Application Note 1(B)(iii), are always classified as crimes of
violence, regardless of whether the prior offense expressly has as an element the
use, attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. App. C, amend. 722 (Nov. 2008) (citation and internal
quotation marks omitted). Diaz–Corado’s conviction for unlawful sexual contact
falls squarely within the Commentary’s definition of a forcible sex offense, and
is, therefore, a crime of violence.
      Diaz–Corado challenges this conclusion on two related bases. First,
Diaz–Corado argues that finding his unlawful sexual contact conviction is a
forcible sex offense conflicts with the definition of that term this Court adopted,
en banc, in United States v. Gomez–Gomez, 547 F.3d 242 (5th Cir. 2008). The
Gomez–Gomez court defined a forcible sex offense as one which “is committed
using force or forcible compulsion against opposition or resistance.” Id. at 247.
Diaz–Corado argues that, because unlawful sexual contact requires only contact
and an absence of consent, his Colorado conviction could have been for conduct
outside the definition of a forcible sex offense in Gomez–Gomez. However, this
court decided Gomez–Gomez before the amended Commentary took effect and
explicitly noted that the holding did not address the “proposed amended
definition” of forcible sex offense. Id. at 248 n.7. This court has recently held

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that the amended definition of forcible sex offense has supplanted this Circuit’s
previous definition of the term. See Herrera, 2011 WL 2698982, at *4 (“[O]ur
holding in [Gomez–Gomez] is no longer applicable to the extent that it defines
forcible sex offense because the phrase is defined in the Guidelines.”); cf. United
States v. Rodriguez–Juarez, 631 F.3d 192, 194 (5th Cir. 2011) (per curiam)
(“[T]he effect of the revisions to the Sentencing Guidelines is to make our prior
precedent inapplicable to sentences calculated under the revised version
of U.S.S.G. § 2L1.2(b)(1)(A)(ii).”). Therefore, contrary to Diaz–Corado’s urging,
this Circuit’s previous definition of a forcible sex offense is not applicable in light
of the Commentary’s language expanding and clarifying that term.1
       Nevertheless, Diaz–Corado argues that the amendment to the
Commentary was not intended to define “forcible sex offense,” but was intended
only to reverse a line of cases that excluded offenses where there could be “assent
in fact but no legally valid consent” from the definition of “forcible sex offense.”
Although the notes to the amendment state that application of the amendment
overrules those cases, see U.S.S.G. App. C, amend. 722, this court has not read
the amendment so narrowly. Instead, this court recently concluded that the
phrase “including where consent to the conduct has not been given or is not
legally valid” supplants the previous definition of forcible sex offense to include
sex offenses where consent to the conduct is involuntary or cannot be given. See
Herrera, 2011 WL 2698982, at *5 (characterizing sexual contact with a party
who is “physically helpless, mentally defective, or mentally incapacitated” as a
forcible sex offense because the victim is unable to consent); cf.
Rodriguez–Juarez, 631 F.3d at 194 (involving statute criminalizing touching
where the victim is “so mentally disabled or deficient that consent to touching
cannot be given”). Moreover, it would make little sense to infer from the

       1
        For this same reason, Diaz–Corado’s reliance on this court’s decision in United States
v. Rosas–Pulido, 526 F.3d 829 (5th Cir. 2008), is unpersuasive.

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language in the amended Commentary—which directly connects a victim’s lack
of consent with forcible conduct—that it was meant to apply only when there is
assent to the act, but not legally valid consent, while excluding offenses from
that definition where there was neither consent nor assent.
      The Tenth Circuit’s analysis in United States v. Romero–Hernandez, 505
F.3d 1082 (10th Cir. 2007), lends further support to our interpretation of the
term forcible sex offense in this case. In Romero–Hernandez, the Tenth Circuit
concluded that, under the pre-amendment version of the Guidelines, a violation
of Colorado Revised Statutes § 18-3-404(1)(a) was a forcible sex offense for
purposes of the sentence enhancement under U.S.S.G. § 2L1.2 because a sexual
contact offense is “necessarily forcible when that person does not consent.”
Romero–Hernandez, 505 F.3d at 1089. Crucial to this conclusion was the
Romero–Hernandez court’s reasoning that, although forcible was generally
defined as “ ‘[e]ffected by force or threat of force against opposition or
resistance,’ ” that definition was not applicable in the context of unlawful contact
with another person. Id. at 1088 (quoting Black’s Law Dictionary 674 (8th ed.
2004)). Rather, in that context, forcible contact occurs when a person “ ‘lay[s]
one’s finger on another person without lawful justification.’ ” Id. (quoting Black’s
Law Dictionary 674).      Thus, the Romero–Hernandez court reasoned that
opposition or resistance “should not be read to require active opposition or
resistance [to a sex offense]” Id. “[T]he legal right to be free from interference
will suffice.” Id. This portion of the court’s analysis in Romero–Hernandez is
particularly persuasive because it echoes the amended Commentary’s connection
between a lack of consent and forcible conduct. Accordingly, Diaz–Corado’s
violation of Colorado Revised Statutes § 18-3-404(1)(a) is a forcible sex offense,
and is therefore subject to the sixteen-level increase in Diaz–Corado’s base
offense level as a “crime of violence.”



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      Aside from his challenge to the district court’s characterization of his
conviction for unlawful sexual contact, Diaz–Corado does not otherwise
challenge the sentence imposed by the district court. We therefore hold that the
district court’s sentence did not amount to an abuse of discretion.
                               III. Conclusion
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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