     Case: 15-40113      Document: 00513364041         Page: 1    Date Filed: 02/01/2016




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

                                      No. 15-40113
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                            February 1, 2016

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

RAMPERSAUD BIRBAL,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-1595


Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       This case turns on New Jersey’s statutory definition of sexual assault.
In 2006, Rampersaud Birbal pled guilty to attempted sexual assault in New
Jersey.     He was deported after serving his sentence. Several years later,
Birbal was found in Texas after illegally reentering the United States. Birbal
pled guilty to illegal reentry. His sentence was enhanced because the court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40113     Document: 00513364041        Page: 2    Date Filed: 02/01/2016



                                     No. 15-40113
found that he was previously deported after committing a crime of violence—
the New Jersey sexual assault. Birbal appeals this enhancement.
                                I.     BACKGROUND
      Birbal pled guilty to illegally reentering the United States in violation of
8 U.S.C. § 1326(a) and (b). There was no plea agreement. Birbal’s presentence
report calculated his total offense level as twenty-two, including a sixteen-level
enhancement for deportation following a felony conviction for a crime of
violence   under     U.S.      Sentencing     Guidelines      Manual     (“U.S.S.G.”)
§ 2L1.2(b)(1)(A)(ii) (2014). This enhancement was based on Birbal’s 2006 New
Jersey conviction for “attempted sexual assault – force or coercion with no
serious injury as amended” and subsequent deportation. Birbal did not object
to the calculation of the guidelines range or the sixteen-level enhancement.
The district court sentenced Birbal to fifty-seven months in prison, the bottom
of the guideline range, with no supervised release. Birbal timely appealed,
alleging that the district court erred by imposing the sixteen-level
enhancement because his prior New Jersey conviction for attempted sexual
assault did not qualify as a crime of violence under the guidelines. Having
reviewed the briefs and the record, we AFFIRM.
                         II.     STANDARD OF REVIEW
       Because Birbal did not object to his sentence enhancement, we review
the district court’s decision for plain error. United States v. Ronquillo, 508 F.3d
744, 748 (5th Cir. 2007). Plain error arises when: (1) there was an error; (2)
the error was plain; (3) the error affected the defendant’s substantial rights;
and (4) the appellate court determines that the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States
v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). To be plain, “the legal error must
be clear or obvious, rather than subject to reasonable dispute.” Puckett v.
United States, 556 U.S. 129, 135 (2009).
                                          2
    Case: 15-40113    Document: 00513364041      Page: 3   Date Filed: 02/01/2016



                                 No. 15-40113
                               III.   DISCUSSION
      Section 2L1.2 of the sentencing guidelines imposes a sixteen-level
enhancement if a defendant guilty of illegal reentry was previously deported
after committing a crime of violence.       U.S.S.G. § 2L1.2(b)(1)(A)(ii).   The
guidelines definition of a crime of violence is in the commentary to § 2L1.2, and
contains a list of enumerated offenses and a residual clause. The enumerated
offenses include “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).” Id. at § 2L1.2, cmt. n.1 (B)(iii). The
residual clause reads: “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.” Id. Birbal claims that his 2006 conviction
does not meet the definition of a forcible sex offense or satisfy the residual
clause.
      This court’s analysis of whether a particular offense is a crime of violence
depends on whether the offense is an enumerated one or one that satisfies the
residual clause. United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir.
2008). To determine whether a state conviction constitutes an enumerated
offense, we apply an “approach that looks to the ‘generic, contemporary
meaning’ of an offense listed in § 2L1.2 to assess whether the offense of
conviction amounts to that enumerated offense.” United States v. Hernandez-
Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015) (quoting United States v. Esparza-
Perez, 681 F.3d 228, 229 (5th Cir. 2012)). To determine the “‘plain, ordinary
meaning,’ we rely on sources including the Model Penal Code, Professor
LaFave’s Substantive Criminal Law treatise, modern state statutes, and
dictionaries.” Id. (quoting United States v. Mungia-Portillo, 484 F.3d 813, 816
(5th Cir. 2007)). “If the defendant was convicted under a statute that is
‘narrower than the generic crime’ or that mirrors the generic definition with
                                        3
     Case: 15-40113    Document: 00513364041     Page: 4   Date Filed: 02/01/2016



                                  No. 15-40113
only ‘minor variations,’ the enhancement may stand.” Id. at 195–96 (quoting
United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011)). But, if the relevant
statute “‘encompasses prohibited behavior that is not within the plain,
ordinary meaning of the enumerated offense,’ the conviction is not a crime of
violence as a matter of law.” Esparza-Perez, 681 F.3d at 230 (quoting United
States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)).
      To determine whether a statute meets the residual clause, we apply a
categorical approach. See Taylor v. United States, 495 U.S. 575, 602 (1990);
Hernandez-Rodriguez, 788 F.3d at 195. “[W]e examine the elements of the
offense, rather than the facts underlying the conviction or the defendant’s
actual conduct.” United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir.
2014) (alteration in original).
      Under both approaches, if the underlying statute contains disjunctive
elements, we employ the modified categorical approach “to determine which
subpart of the statute formed the basis of the conviction.”          Hernandez-
Rodriguez, 788 F.3d at 196 (quoting Moreno-Florean, 542 F.3d at 449). Under
this approach, we consider “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Shepard v. United
States, 544 U.S. 13, 16 (2005); see also United States v. Bonilla-Mungia, 422
F.3d 316, 320 (5th Cir. 2005) (applying Shepard in a § 2L1.2 crime-of-violence
context).
A.    2008 Revisions to the Guidelines
      The United States Sentencing Commission revised the guidelines in
2008 to clarify forcible sex offenses by adding the following parenthetical:
“(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).”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In the Reason for Amendment commentary,
                                        4
     Case: 15-40113   Document: 00513364041     Page: 5   Date Filed: 02/01/2016



                                 No. 15-40113
the commission states that “[t]he amendment makes 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
(2011) (citing U.S.S.G. App. C., Amend. 658 (2011)).
B.    Birbal’s New Jersey Conviction
      Birbal initially faced three counts: (1) aggravated sexual assault; (2)
sexual assault by committing sexual penetration by using force or coercion; and
(3) aggravated assault. State court documents show that Birbal pled guilty to
count 2: “attempted sex assault - force or coercion w/no serious injury (as
amended).” Specifically, Birbal’s plea documents reflect that he was convicted
of attempted sexual assault by committing sexual penetration by use of
physical force or coercion in violation of N.J. STAT. § 2C:14-2c(1) (2003). But
the documents do not show which subpart of the statute (force or coercion)
formed the basis of the conviction. “Where these documents do not identify the
offense of conviction, we must consider whether the ‘least culpable’ means of
violating the statute of conviction qualifies as an offense under the Sentencing
Guidelines.” United States v. Rodriguez-Negrete, 772 F.3d 221, 225 (5th Cir.
2014) (quoting United States v. Elizondo–Hernandez, 755 F.3d 779, 781 (5th
Cir. 2014)). Birbal argues that, here, the “least culpable” means of violating
the statute under either force or coercion turns on the definition of consent:
under New Jersey law, he argues, it is theoretically possible to be convicted of
sexual assault in a situation where there was a “lack of verbal or physical
resistance” but no “affirmative or freely given permission.” We find Birbal’s
argument unpersuasive.
      At the time of the offense, the relevant New Jersey sexual assault statute
provided that “[a]n actor is guilty of sexual assault if he commits an act of
                                       5
     Case: 15-40113       Document: 00513364041          Page: 6     Date Filed: 02/01/2016



                                       No. 15-40113
sexual penetration with another person under any one of the following
circumstances: (1) The actor uses physical force or coercion, but the victim does
not sustain severe personal injury.” N.J. STAT. § 2C:14-2c(1) (2003). The New
Jersey Supreme Court provided guidance on the consent requirement under
this provision in State in Interest of M.T.S., holding that “any act of sexual
penetration engaged in by the defendant without the affirmative and freely-
given permission of the victim to the specific act of penetration constitutes the
offense of sexual assault.” 609 A.2d 1266, 1277 (N.J. 1992). 1 The court clarified
that New Jersey’s sexual assault statute requires a victim’s lack of consent,
and it kept the burden of proof on the state, which must “prove beyond a
reasonable doubt that there was sexual penetration and that it was
accomplished without the affirmative and freely-given permission of the
alleged victim.” Id. at 1279.
       Birbal’s argument that his 2006 conviction does not qualify as a forcible
sex offense rests on the premise that New Jersey has an elevated or “Cadillac”
form of consent. Birbal contends that finding consent only when there is
“affirmative and freely-given permission” under M.T.S. is a higher standard of
consent than the guidelines prescribe. Birbal argues that under the guidelines,
consent is present whenever there is a “lack of verbal or physical resistance.”
Thus, he concludes that the guideline’s definition of a forcible sex offense does
not include convictions under an “affirmative and freely-given permission”
definition of consent.       We disagree. 2       The guidelines explicitly state that



       1 The question in M.T.S. was whether the force of penetration alone was enough—
absent consent, expressed through words or actions—to meet the “physical force” element of
sexual assault. In affirming the trial court’s finding that the victim “had not expressed
consent to the act of intercourse,” the court held that it was. M.T.S., 609 A.2d at 1279-80.
       2 The fact that Birbal acknowledged during oral argument that he could not point to

a single post-M.T.S. case (decided in 1992) that turns on this alleged distinction is notable.
As this court recently stated, focusing on the least culpable means of violating a statute “is
not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic
                                              6
     Case: 15-40113       Document: 00513364041         Page: 7     Date Filed: 02/01/2016



                                       No. 15-40113
forcible sex offenses include offenses where “consent to the conduct [was] not
given.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). By its plain language, a forcible sex
offense requires the absence of consent. New Jersey law requires affirmative
and freely-given permission, the flipside of the “absence of consent” coin. See
M.T.S., 609 A.2d at 1279 (“Because ‘physical force’ as an element of sexual
assault in this context requires the absence of affirmative and freely-given
permission, the ‘consent’ necessary to negate such ‘physical force’ under a
defense based on consent would require the presence of such affirmative and
freely-given permission.”). And M.T.S. clarifies that permission is indicated
“either through words or through actions that, when viewed in the light of all
the surrounding circumstances, would demonstrate to a reasonable person
affirmative and freely-given authorization.” Id. at 1278.
       Contrary to Birbal’s argument that New Jersey has a “Cadillac”
standard of consent, the court in M.T.S. was careful not to shift the state’s
burden to the defendant. Under New Jersey law, if there is evidence to suggest
that the alleged victim consented—including the defendant’s testimony that
there was no verbal or physical resistance—then “the State must demonstrate
either that defendant did not actually believe that affirmative permission had
been freely-given or that such a belief was unreasonable under all of the
circumstances.” Id. at 1279. And “[t]he alleged victim may be questioned
about what he or she did or said [] to determine whether the defendant was
reasonable in believing that affirmative permission had been freely given.” Id.
Under plain error review, we hold that the district court did not reversibly err
by finding that Birbal’s New Jersey conviction under N.J. STAT. § 2C:14-2c(1)




probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime[.]’” United States v. Monterola-Mata, No.
14-41161, 2015 WL 6445660, at *8 (5th Cir. Oct. 26, 2015) (citation omitted).
                                              7
     Case: 15-40113      Document: 00513364041        Page: 8    Date Filed: 02/01/2016



                                     No. 15-40113
(2003) qualifies as a crime of violence under the sentencing guidelines’
definition of a forcible sex offense. 3
                                 IV.      CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      3 Because we find that Birbal’s New Jersey conviction was a forcible sex offense, we
need not determine whether it was also a crime of violence under the guideline’s residual
clause.
                                            8
