                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   November 15, 2005
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                           No. 04-41272



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                              versus

       ALLISON SCOTT SHAW,

                                                           Defendant-Appellant.


                     Appeal from the United States District Court for
                              the Southern District of Texas
                             (USDC No. 6:04-CR-14-ALL)
            _________________________________________________________


Before REAVLEY, HIGGINBOTHAM and GARZA,* Circuit Judges.

PER CURIAM:**

       Shaw appeals his sentencing on a guilty-plea conviction of possessing a firearm

and ammunition as a convicted felon, claiming his sentence was erroneously enhanced

based on his prior Texas conviction for attempted sexual assault under sections 22.011


       *
        Concurring in the judgment only.
       **
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
and 15.01 of the Texas Penal Code. Reviewing the record de novo, we vacate the

sentence and remand for the following reasons:

      1.     In deciding whether a prior offense of which defendant was convicted had

             as an element "the use, attempted use, or threatened use of physical force,"

             so as to qualify as a crime of violence for purposes of sentence

             enhancement under the Sentencing Guidelines, the court looks only to the

             elements of the prior offense, not to defendant's actual conduct in

             committing it. U.S. v. Martinez-Mata, 393 F.3d 625, 628 (5th Cir. 2004).

      2.     With respect to the force-as-an-element inquiry regarding sexual offenses

             under statutes that do not expressly require the use of force, the rule that

             emerges from our prior decisions is: (1) unless an adult offense against a

             child under fourteen is involved, sexual contact does not involve the use of

             force when it is accompanied by consent in fact (regardless of whether the

             statute renders factual consent ineffective in certain circumstances); and (2)

             where the indictment upon which the prior conviction is based does not

             provide sufficient information to rule out conviction under such a consent-

             in-fact scenario, we must assume that the defendant’s conduct constituted

             the least culpable act satisfying the count of conviction and find no crime of

             violence on the basis of force as an element. See United States v.

             Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004) (finding a Missouri

             sexual assault statute with language similar to Texas § 22.011 did not have

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     force as an element because some consent-in-fact methods of violating the

     statute do not require the use of physical force against the victim); United

     States v. Houston, 364 F.3d 243, 246-47 (5th Cir. 2004) (holding that

     where the indictment for statutory rape under Texas § 22.011 was silent as

     to the age of the victim and the statute provides an affirmative defense if the

     actor was no more than three years older, we must proceed on the

     assumption of consensual sex between a female one day underage and an

     actor three years older and find no crime of violence); United States v.

     Rayo-Valdez, 302 F.3d 314, 316 (5th Cir. 2002) (recognizing that a sexual

     offense by an adult against a child under fourteen is inherently forcible).

3.   The relevant portions of section 22.011 do not expressly require the use of

     force, rather criminalizing certain conduct if it occurs without the legally

     effective consent of the person sexually contacted. See TEX. PEN. CODE §

     22.011(a)(1)(A)-(C)), (b) (Vernon 1998). Thus, some consent-in-fact

     methods of violating the statute do not require the use of physical force

     against the victim.

            Shaw’s indictment was based on section 22.011, without subsection

     reference, and read as follows:

            [Shaw] did then and there, with the specific intent to
            commit the offense of sexual assault of [Jane Doe] while
            said defendant was fondling his own sexual organ and
            asking [Jane Doe] if she would have sex with him, which
            amounted to more than mere preparation that tended but

                                    3
            failed to effect the commission of the offense intended.

            Under our precedent, because some methods of violating section

     22.011 do not require the use of physical force against the victim and,

     because Shaw’s indictment is not specific enough to rule out conviction for

     such non-forceful conduct, we cannot affirm Shaw’s crime-of-violence

     sentence enhancement under the force-as-an-element inquiry.

4.   The Government urges in the alternative that sexual assault amounts to a

     “forcible sexual offense,” an enumerated offense under Application Note 1

     of the Commentary to U.S. Sentencing Guidelines Manual § 4B1.2, and that

     an enumerated offense is always considered to be a crime of violence

     regardless of whether it specifically has as an element the use, attempted

     use, or threatened use of physical force. Because the guideline does not

     define the listed “forcible sex offense,” we “must define it according to its

     ‘generic contemporary meaning’.” United States v. Dominguez-Ochoa, 386

     F.3d 639, 642-43 (5th Cir. 2004) (quoting Taylor v. United States, 495 U.S.

     575, 598, 110 S.Ct. 2143, (1990).

            We have previously considered the question of whether, in common,

     contemporary usage, all unconsented-to sex offenses constitute a “forcible

     sex offense” and held that they do not. Sarmiento-Funes, 374 F.3d at 345

     (recognizing a distinction between forcible and nonforcible, but nonetheless

     criminal, sexual contact). see also United States v. Turner, 305 F.3d 349,

                                    4
     351 (5th Cir. 2002) (recognizing that, for purposes of determining whether

     a prior conviction was for a crime of violence under the Guidelines, the

     question is whether physical force is at issue). Where there are non-

     forcible ways to violate a sexual conduct statute, prior conviction under that

     statute, absent specific indictment information to the contrary, cannot be

     said to constitute a forcible sex offense. United States v. Palomares-

     Candela, No. 03-10535, 2004 WL 1570359, at *4 (5th Cir. July 14, 2004).

            In this case, where the indictment does not specify a specific

     subsection of the statute and states only that sexual touching and suggestion

     occurred, there is nothing to indicate that force, in the common meaning,

     was used. Under Sarmiento-Funes, we cannot affirm Shaw’s sentence on

     this alternative basis.

5.   Shaw also appealed on the grounds that, under United States v. Booker,

     ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005), the district court erred in

     applying the Guidelines as mandatory rather than advisory. Because we

     find that Shaw’s prior Texas conviction for attempted sexual assault was

     not for a crime of violence and remand for resentencing on that issue, the

     Booker error is moot and need not be addressed by us. See United States v.

     Villegas, 404 F.3d 355, 365 (5th Cir. 2005) (declining to consider Booker

     argument where case was remanded based on district court’s misapplication

     of the Sentencing Guidelines).

                                      5
SENTENCE VACATED; CAUSE REMANDED.




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