                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4621


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

HANS ELVIN CABRERA-UMANZOR,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:11-cr-00027-PJM-1)


Argued:   September 21, 2012                 Decided:   August 26, 2013


Before TRAXLER,   Chief   Judge,    and   NIEMEYER   and   MOTZ,   Circuit
Judges.


Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Niemeyer and Judge Motz
joined.


ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant.      Erin Baxter
Pulice, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.   ON BRIEF: James Wyda, Federal Public
Defender,  Baltimore,   Maryland,  for  Appellant.     Rod  J.
Rosenstein, United States Attorney, Baltimore, Maryland for
Appellee.
TRAXLER, Chief Judge:

      Hans Cabrera-Umanzor pleaded guilty to unlawful re-entry of

a removed alien after an aggravated felony conviction.                           See 8

U.S.C. § 1326(a)(1).          Applying what is generally referred to as

the   “modified          categorical         approach,”     the     district     court

determined       that    Cabrera’s       prior    conviction       under     Maryland’s

child abuse statute was a “crime of violence” under U.S.S.G. §

2L1.2(b)(1)(A)(ii).           The       district    court       therefore    increased

Cabrera’s    base       offense    by   16    levels,     see   id.,   and    sentenced

Cabrera     to     41     months’       imprisonment.             Cabrera      appeals,

challenging the application of the 16-level enhancement.                         Given

our recent decision in United States v. Gomez, 690 F.3d 194 (4th

Cir. 2012), and the Supreme Court’s even more recent decision in

Descamps v. United States, 133 S. Ct. 2276 (2013), we agree with

Cabrera that the modified categorical approach is inapplicable

and that under the categorical approach, his prior conviction is

not a crime of violence.



                                             I.

      Sentencing for § 1326 offenses is governed by U.S.S.G. §

2L1.2.      The Guideline establishes a base offense level of 8,

see   id.   §    2L1.2(a),        and   provides    for     various    offense-level

enhancements depending on the specific characteristics of the

defendant’s offense, see id. § 2L1.2(b).                    At issue in this case

                                              2
is   the   16-level     enhancement      that       applies        in    cases    where   the

defendant was deported after “a conviction for a felony that is

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

Commentary to § 2L1.2 defines “crime of violence” as

      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.

U.S.S.G.     §    2L1.2      cmt.     n.1(B)(iii);         see       United      States     v.

Peterson,     629     F.3d     432,     435       (4th     Cir.      2011)       (Guidelines

commentary “is authoritative and binding, unless it violates the

Constitution or a federal statute, or is inconsistent with, or

plainly erroneous reading of the Guideline itself.” (internal

quotation marks omitted)).

      When   determining         whether      a    prior      conviction         triggers   a

Guidelines       sentencing         enhancement,         we    approach          the   issue

categorically, looking “only to the fact of conviction and the

statutory definition of the prior offense.”                              Taylor v. United

States,    495   U.S.     575,   602    (1990).          The       categorical      approach

focuses on the elements of the prior offense rather than the

conduct      underlying        the      conviction;            a        prior     conviction


                                              3
constitutes     a    conviction      for   the   enumerated        offense     if   the

elements of the prior offense “correspond[] in substance” to the

elements   of    the   enumerated      offense.        Id.    at     599.     “[W]here

Congress has not indicated how a prior offense enumerated in a

sentencing enhancement statute is to be interpreted, it should

be understood to refer to ‘the generic, contemporary meaning’ of

the crime.”         United States v. Rangel-Casteneda, 709 F.3d 373,

376 (4th Cir. 2013) (quoting Taylor, 495 U.S. at 598).                              The

point of the categorical inquiry is not to determine whether the

defendant’s conduct could support a conviction for a crime of

violence, but to determine whether the defendant was in fact

convicted of a crime that qualifies as a crime of violence.                         See

Descamps, 133 S. Ct. at 2288.

       The inquiry is a bit different, however, in cases involving

“divisible”     statutes   of     conviction      --   statutes       that    set   out

elements in the alternative and thus create multiple versions of

the crime.      See Descamps, 133 S. Ct. at 2284; Gomez, 690 F.3d at

199.     If a defendant was convicted of violating a divisible

statute,   reference     to    the    statute     alone      “does    not    disclose”

whether the conviction was for a qualifying crime.                           Descamps,

133 S. Ct. at 2284.           In such a case, the sentencing court may

apply   the   modified     categorical         approach      and   consult    certain

approved “extra-statutory materials . . . to determine which



                                           4
statutory phrase was the basis for the conviction.”                     Id. at 2285

(internal quotation marks omitted).

     As    the     Supreme   Court      emphasized,      however,      the   modified

categorical      approach,     “serves    a    limited    function:          It   helps

effectuate the categorical analysis when a divisible statute,

listing potential offense elements in the alternative, renders

opaque     which     element     played       a   part     in    the    defendant's

conviction.”       Descamps, 133 S. Ct. at 2283.                Where the statute

defines    the     offense     broadly    rather    than    alternatively,         the

statute is not divisible, and the modified categorical approach

simply “has no role to play.”            Id. at 2285.



                                         II.

     After admitting to having sexual intercourse with an 11-

year-old girl when he was 19 years old, Cabrera pleaded guilty

in 2001 in Maryland state court to a charge of causing abuse to

a child.       See Md. Code, art. 27, § 35C (2000).               At a sentencing

hearing conducted before the issuance of our opinion in Gomez or

the Supreme Court’s opinion in Descamps, the district court held

that the modified categorical approach applied because some, but

not all, of the conduct proscribed by § 35C would constitute a

crime     of     violence.        The     court    then     concluded,        without

considering the elements of the state crime, that having sexual

intercourse with an 11-year-old was a forcible sex offense and

                                          5
thus   a   crime    of    violence   under   U.S.S.G.   §   2L1.2.   After

application of the 16-level enhancement, Cabrera’s total offense

level was 21 and his advisory sentencing range was 41-51 months.

The district court sentenced Cabrera to 41 months’ imprisonment.

       On appeal, Cabrera argues that § 35C is not divisible and

that the district court therefore erred by applying the modified

categorical approach.        Cabrera further argues that a conviction

for sexual abuse under § 35C is not a crime of violence under

the categorical approach, because the elements of sexual abuse

under § 35C do not include the elements of the relevant offenses

enumerated in the Commentary.        We agree.


                                      A.

       At the time of Cabrera’s offense, § 35C provided that “[a]

parent or other person who has permanent or temporary care or

custody or responsibility for the supervision of a child or a

household or family member who causes abuse to the child is

guilty of a felony.”          Md. Code, art. 27, § 35C(b)(1).             The

statute defined “abuse” as “(i) [t]he sustaining of physical

injury by a child as a result of cruel or inhumane treatment or

as a result of a malicious act . . . ; or (ii) [s]exual abuse of

a child, whether physical injuries are sustained or not.”            Id. §

35C(a)(2).     As    to    “sexual   abuse,”   the   statute   provided    as

follows:


                                       6
            (6)(i) “Sexual abuse” means any act that involves
       sexual molestation or exploitation of a child by a
       parent or other person who has permanent or temporary
       care or custody or responsibility for supervision of a
       child, or by any household or family member.

             (ii) “Sexual abuse” includes, but is not limited
       to:

             1. Incest, rape, or sexual offense in any degree;

             2. Sodomy; and

             3. Unnatural or perverted sexual practices.

Md. Code, art. 27, § 35C(a)(6). 1

       To convict a defendant of sexual abuse under § 35C thus

requires     proof    of    the    following        elements:    “(1)      that   the

defendant is a parent, family or household member, or had care,

custody,     or   responsibility     for      the   victim’s    supervision;      (2)

that   the   victim   was   a     minor   at   the    time;    and   (3)   that   the

defendant sexually molested or exploited the victim by means of

a specific act.”       Schmitt v. State, 63 A.3d 638, 643 (Md. Ct.

Spec. App. 2013), cert. denied (Md. July 05, 2013) (Table, No.

103 Sept. Term 2013); see Tribbitt v. State, 943 A.2d 1260,

1265-66 (Md. 2008).         The State is not obliged to prove that the

defendant acted with the intent to gratify his sexual urges, see


       1
       § 35C was repealed in 2002, and the crimes of physical
abuse of a minor and sexual abuse of a minor were recodified
separately.   See Md. Code, Crim. Law § 3-601 (physical abuse);
id. § 3-602 (sexual abuse).          Although there are minor
differences in wording, there is no substantive difference
between § 35C and its statutory successors.     See Tribbitt v.
State, 943 A.2d 1260, 1271 n.15 (Md. 2008).


                                          7
Walker v. State, ___ A.3d ___, 2013 WL 3456566, at *18 (Md. July

8, 2013); Tate v. State, 957 A.2d 640, 648 (Md. Ct. Spec. App.

2008),    or    that     he   used   force          or    coercion    to     accomplish     the

crime, see Brackins v. State, 578 A.2d 300, 302 (Md. Ct. Spec.

App. 1990).            The defendant need not touch the victim to be

guilty of sexual abuse.              Indeed, a conviction for sexual abuse

under § 35C does not require an affirmative act of any kind;

criminal liability can be premised on the defendant’s failure to

prevent       sexual    abuse.       See    Walker,         2013     WL    3456566,    at   *15

(“[C]hild sexual abuse includes not only an affirmative act but

one’s    omission       or    failure      to    act      to    prevent      molestation    or

exploitation when it is reasonably possible to act and when a

duty to do so exists” (internal quotation marks and alteration

omitted)).

                                                B.

      It is clear from its text that § 35C is generally divisible

-- the statute prohibits the abuse of a child by a family member

or a person with responsibility for the child’s supervision, and

it defines the “abuse” element in the alternative, as either

physical abuse or sexual abuse.                          See Gomez, 690 F.3d at 201.

And     the     alternative       element            of    sexual         abuse   is   itself

alternatively           defined      as     sexual             molestation        or   sexual

exploitation.          See Walker, 2013 WL 3456566, at *14.



                                                8
     General divisibility, however, is not enough; a statute is

divisible    for   purposes       of       applying      the    modified             categorical

approach only if at least one of the categories into which the

statute may be divided constitutes, by its elements, a crime of

violence.     See Descamps, 133 S. Ct. at 2285 (explaining that the

modified    categorical         approach          provides       a        “mechanism”           for

comparing the prior conviction to the generic offense “when a

statute lists multiple, alternative elements, and so effectively

creates several different crimes . . . . [and] at least one, but

not all of those crimes matches the generic version” (emphasis

added));    Gomez,     690     F.3d    at     199       (“[C]ourts         may        apply     the

modified categorical approach to a statute only if it contains

divisible   categories       of   proscribed            conduct,      at     least        one    of

which   constitutes       --      by       its     elements          --     a        [qualifying

conviction].”).      In this case, the categories of conduct created

by § 35C’s alternative elements simply do not line up with the

elements of any of the potentially applicable crimes of violence

enumerated in the Commentary to U.S.S.G. § 2L1.2 -- forcible sex

offense,    sexual   abuse      of     a    minor,      or     statutory         rape.          See

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

     Sexual    abuse    under     §    35C       does    not    amount          to    a   generic

“forcible sex offense” because a forcible sex offense requires

the use or threatened use of force or compulsion, see United

States v. Chacon, 533 F.3d 250, 257 (4th Cir. 2008), an element

                                             9
not required under § 35C.                   See Walker, 2013 WL 3456566, at *15;

Brackins, 578 A.2d at 302.                       Sexual abuse under § 35C likewise

does not amount to generic “sexual abuse of a minor,” which we

have defined as “physical or nonphysical misuse or maltreatment

of a minor for a purpose associated with sexual gratification.”

United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008)

(internal quotation marks omitted).                       As previously noted, intent

to gratify sexual urges is not an element of sexual abuse under

§ 35C.         See Tate, 957 A.2d at 648.                 Finally, sexual abuse under

§   35C    does    not       amount    to    generic       statutory         rape   within   the

meaning of § 2L1.2.             Statutory rape requires sexual intercourse,

see Rangel-Casteneda, 709 F.3d at 376, but a defendant need not

even touch the victim to be convicted of sexual abuse under §

35C.      See Walker, 2013 WL 3456566, at *15.

       Accordingly, while § 35C can be divided into categories of

physical abuse and sexual abuse, the sexual abuse category does

not,      by     its    elements,       constitute          any     of       the    potentially

applicable        crimes       of     violence         enumerated       in    the    Guidelines

Commentary.            The    statute       is    therefore       not    divisible      in   the

manner         necessary       to     warrant          application       of    the    modified

categorical approach.

                                                  C.

       The government insists, however, that § 35C is divisible.

As the government notes, § 35C defines sexual abuse to include

                                                  10
sexual    offense    in     any    degree.        See    Md.     Code,      art.    27,     §

35C(a)(6)(ii)(1) (“Sexual abuse” includes, but is not limited to

. . . [i]ncest, rape, or sexual offense in any degree”).                            In the

government’s      view,     the    incorporation         of   these    state-law          sex

crimes creates additional categories of child sexual abuse --

for    example,    sexual    abuse    through      the    commission        of     rape    or

sexual abuse through the commission of a sexual offense.                                  And

because     at    least     some     of   the      incorporated          offenses         are

categorically      crimes    of    violence       for    purposes      of    U.S.S.G.       §

2L1.2, see Chacon, 533 F.3d at 258 (second-degree sexual offense

under Maryland law constitutes a conviction for forcible sex

offense), the government argues that the statute is divisible

into     crimes-of-violence         categories          and    that      the     modified

categorical       approach    was     therefore         properly       applied.           We

disagree.

       As the Supreme Court emphasized in Descamps, the “central

feature” of both the categorical approach and its helper, the

modified    categorical      approach,       is    “a    focus    on   the       elements,

rather than the facts, of a crime.”                     Descamps, 133 S. Ct. at

2285.     The elements of the crime of sexual abuse of a child are

those previously listed--an act involving sexual molestation or

sexual exploitation of a minor, by a person with the requisite

familial or custodial relationship to the minor.                            See Schmitt,

63 A.3d at 643.       The crimes listed in § 35C(6)(ii) are “merely

                                          11
illustrative,” Walker, 2013 WL 3456566, at *14, and they simply

“provide[] examples of acts that come within [the statutory]

definition,” Tribbitt, 943 A.2d at 1266.                The crimes, therefore,

are   not   elements     of    the    offense,   but    serve    only   as     a   non-

exhaustive list of various means by which the elements of sexual

molestation     or   sexual     exploitation      can    be     committed. 2       See

Crispino v. State, 7 A.3d 1092, 1102-03 (Md. 2010).                            And as

alternative means rather than elements, the listed crimes are

simply irrelevant to our inquiry.                See Descamps, 133 S. Ct. at

2285 n.2.



                                        III.

       Because the elements of sexual abuse of a child under § 35C

do    not   correspond    to    the    elements    of    any    of   the     relevant


       2
       Vogel v. State, 543 A.2d 398 (Md. Ct. Spec. App. 1988), is
not to the contrary.    The defendant in Vogel was convicted of
and sentenced separately for both third-degree sexual offense
and child abuse under § 35C. Because the convictions were based
on the same, single incident of sexual contact, the defendant
argued on appeal that Double Jeopardy principles precluded the
separate sentences. See id. at 399. Noting that abuse under §
35C was a “multi-purpose” crime, where “even fundamentally
different things may nonetheless constitute the same crime,” id.
at 401, the court held that when Double Jeopardy issues are
raised in cases involving such umbrella crimes, the elements of
the crime are the particular alternative elements implicated by
the facts of the case.          See id. at 401-02.        Vogel’s
consideration, for Double Jeopardy purposes, of the elements of
a crime listed in § 35C(a)(6)(ii) does not transform the
elements of those listed crimes into necessary elements of abuse
under § 35C.


                                         12
enumerated    offenses,        §    35C    is     not   divisible         along   crime-of-

violence lines.         The statute therefore is not divisible in the

manner     necessary      to       permit       application          of     the   modified

categorical      approach.           See    Descamps,          133   S.     Ct.   at   2286

(explaining that application of modified categorical approach is

proper “only when a statute defines [a crime] . . . not . . .

overbroadly,      but    instead          alternatively,         with      one    statutory

phrase    corresponding        to    the    generic       crime      and    another    not”

(emphasis added)); Gomez, 690 F.3d at 201 (modified categorical

approach inapplicable to a conviction for physical child abuse

under § 35C because physical-abuse portion of statute is not

divisible along crime-of-violence lines).

     And     because       the       modified           categorical         approach    is

inapplicable,     the    question          becomes      whether      a    conviction   for

sexual abuse under § 35C is, as a categorical matter, a crime of

violence    as   defined       by    U.S.S.G       §    2L1.2.        As    our    previous

analysis of the divisibility of § 35C makes clear, that question

must be answered in the negative.                       Sexual abuse under § 35C,

whether    involving     sexual       molestation         or    sexual      exploitation,

does not require the use or threatened use of physical force,

and the offense may be committed without committing any of the

enumerated crimes of violence.                    Cabrera’s conviction for abuse

under § 35C therefore is not a crime of violence, see U.S.S.G. §

2L1.2 cmt. n.1(B)(iii), and the district court therefore erred

                                             13
by   applying     the   16-level   enhancement    under   U.S.S.G.   §

2L1.2(b)(1)(A).

     Accordingly, for the foregoing reasons, we hereby reverse

Cabrera’s sentence and remand for resentencing.



                                                 REVERSED AND REMANDED




                                   14
