     Case: 11-20881    Document: 00512176753       Page: 1   Date Filed: 03/15/2013




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

                                                                      FILED
                                                                     March 15, 2013
                                   No. 11-20881
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

v.

JORGE CABECERA RODRIGUEZ, also known as Jorge Cebecera, also known
as Jorge Paul Cabecera, also known as Jorge P. Cabecera,

                                              Defendant - Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                          U.S.D.C. No. 4:11-CR-500-1



Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH,
DeMOSS, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK,
HAYNES, GRAVES, and HIGGINSON, Circuit Judges.

JENNIFER WALKER ELROD and STEPHEN A. HIGGINSON, Circuit Judges,
joined by STEWART, Chief Judge, and KING, JOLLY, DAVIS, SMITH,
DeMOSS, CLEMENT, PRADO, and SOUTHWICK, Circuit Judges:
      Jorge Cabecera Rodriguez (“Rodriguez”) pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326 and was sentenced to twenty-
three months of imprisonment. Rodriguez now challenges his sentence, arguing
that it was error for the district court to apply a sixteen-level “crime of violence”
enhancement based on a prior Texas conviction for sexual assault of a child. We
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AFFIRM Rodriguez’s sentence, and in so doing, we adopt a plain-meaning
approach to the “crime of violence” enhancements of “sexual abuse of a minor”
and    “statutory      rape”   under   U.S.   Sentencing    Guidelines    Manual
§ 2L1.2(b)(1)(A)(ii) [hereinafter “U.S.S.G.”]. Under this approach, we hold that
for the purposes of the crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii),
the meaning of “minor” in “sexual abuse of a minor” is a person under the age of
majority—which we conclude to be eighteen. We also hold that the age of
consent for the purposes of “statutory rape” is the age of consent as defined by
statute in the jurisdiction where the prior conviction was obtained. More
specifically, under this plain-meaning approach, we proceed with the following
four steps: First, we identify the undefined offense category that triggers the
federal sentencing enhancement. We then evaluate whether the meaning of that
offense category is clear from the language of the enhancement at issue or its
applicable commentary. If not, we proceed to step two, and determine whether
that undefined offense category is an offense category defined at common law,
or an offense category that is not defined at common law. Third, if the offense
category is a non-common-law offense category, then we derive its “generic,
contemporary meaning” from its common usage as stated in legal and other well-
accepted dictionaries. Fourth, we look to the elements of the state statute of
conviction and evaluate whether those elements comport with the generic
meaning of the enumerated offense category. This plain-meaning approach is
faithful to the Supreme Court’s decision in Taylor v. United States, 495 U.S. 597
(1990), but does not impose a cumbersome methodological requirement on lower
courts to conduct a nationwide survey and look to the majority of state codes—as
well as the Model Penal Code, federal law, and criminal law treatises—when
deriving the meaning of an undefined offense category enumerated in a federal
sentencing enhancement.
                           I. Procedural Background
       Rodriguez was charged with illegal reentry after deportation following

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conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2),
and pleaded guilty without the benefit of a plea agreement. After the district
court accepted Rodriguez’s plea, it ordered the preparation of a Presentence
Investigation Report (“PSR”). The probation officer determined that Rodriguez
had a base offense level of eight. The probation officer recommended that
Rodriguez’s base offense level be increased by a sixteen-level “crime of violence”
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Rodriguez had
been deported following a 2003 conviction for sexual assault of a child under
Texas Penal Code § 22.011(a)(2). From this adjusted offense level of twenty-four,
Rodriguez received a three-level reduction pursuant to U.S.S.G. § 3E1.1 for his
prompt acceptance of responsibility. Accordingly, Rodriguez had a total offense
level of twenty-one. Rodriguez received four criminal history points from his two
prior adult criminal convictions,1 which resulted in a criminal history category
of III. Rodriguez was subject to an imprisonment range of forty-six to fifty-seven
months under the Guidelines based on his offense level of twenty-one and
criminal history category of III.
       Before the sentencing hearing, Rodriguez filed a written objection to the
probation officer’s recommendation of the sixteen-level enhancement pursuant
to § 2L1.2(b)(1)(A)(ii). Rodriguez argued, as he does before this court, that his
conviction under Texas Penal Code § 22.011(a)(2) is not a “crime of violence”
under § 2L1.2(b)(1)(A)(ii) because that statute criminalizes conduct that falls
outside of the “generic, contemporary meaning” of “statutory rape” and “sexual
abuse of a minor.” Specifically, he argued that the generic definitions of both
offense categories require that the victim be under sixteen years of age and that
the defendant be at least four years older than the victim. Rodriguez contended



       1
         Rodriguez was sentenced to two years of imprisonment for his 2003 Texas conviction
for sexual assault of a child, resulting in three criminal history points, and was sentenced to
thirty days of imprisonment for his 2008 Texas conviction for reckless driving, resulting in one
criminal history point.

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that because § 22.011(a)(2) applies to victims under seventeen years of age and
requires only a three-year age differential, the statute is broader than these
generic definitions. He also maintained that the victim was sixteen years old at
the time of the offense, and that he was nineteen years old at the time.2
Rodriguez explained that without these enhancements, he would have a total
offense level of ten3 and, therefore, the Guidelines range would be ten to sixteen
months. He also argued that a downward departure from the Guidelines was
appropriate because of his cultural assimilation and the fact that his criminal
history overstated the seriousness of his prior convictions.
       At the sentencing hearing, the district court first discussed Rodriguez’s
objection to the sixteen-level “crime of violence” enhancement. Specifically, the
district court asked Rodriguez’s counsel whether any precedent supported
Rodriguez’s position that his 2003 conviction for sexual assault of a child under
Texas Penal Code § 22.011(a)(2) was not a “crime of violence.” Rodriguez’s
counsel expressly acknowledged that under our precedent, the district court
lacked the ability to conclude that Rodriguez’s conviction was not a “crime of
violence.” In response, the district court noted that although such a concession
might tie its hands with respect to Guidelines application, it retained the


       2
          The record contains support that the victim opposed sexual conduct that Rodriguez
initiated. The PSR, which was adopted by the district court, stated “[t]he complainant alleged
that she tried to push the defendant off her, but was unable to move him.” We acknowledge
that the victim’s sworn affidavit filed in support of Rodriguez as an attachment to the PSR
contains ambiguous statements, some of which indicate consent. We note, however, that
under Taylor and its progeny, it is unclear whether we would be permitted to consider these
facts to conclude that Rodriguez’s offense qualified for a crime-of-violence enhancement under
U.S.S.G. § 2L1.2. This problem is a demonstration of the confusion and gymnastics that result
from the categorical and modified-categorical approaches in their current form. Perhaps, the
Supreme Court will provide clarity on this issue this Term in Descamps v. United States, 133
S. Ct. 90 (2012) (granting certiorari). Nevertheless, we leave this issue for another day
because, as explained infra, we may affirm Rodriguez’s sentence on the basis of either the
“sexual abuse of a minor” or the “statutory rape” offense categories.
       3
        Rodriguez’s base offense level of eight, increased four levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(D) because of his prior felony conviction, decreased two levels for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a), results in an offense level of ten.

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discretion to consider a departure from the Guidelines or a variance under 18
U.S.C. § 3553(a).
       Following this statement, the discussion at the sentencing hearing turned
to consideration of the district court’s discretion to grant a variance from the
Guidelines. Initially, the district court asked the government about its position
on the appropriateness of a variance under § 3553(a). The government agreed
that a variance was appropriate on the facts of this case and recommended a
three-level variance—lowering the offense level from twenty-one to eighteen,
resulting in a Guidelines range of thirty-three to forty-one months.
       The district court then asked Rodriguez whether he agreed with the
government’s suggested three-level variance. Rodriguez’s counsel expressed
appreciation for the government’s willingness to acknowledge that a Guidelines
sentence would be inappropriate, but argued that the appropriate variance
would be to treat Rodriguez’s conviction as a felony rather than as a “crime of
violence.” Rodriguez’s counsel explained that with this suggested variance, the
adjusted offense level would be ten, resulting in a Guidelines range of ten to
sixteen months. Under this range, Rodriguez’s counsel recommended a sentence
of one year and a day. The government responded to this recommendation by
reiterating its position that a sentence between thirty-three and forty-one
months would be appropriate, contending that a lower sentence would not
adequately address Rodriguez’s conviction for sexual assault of a child.
Following this response by the government, the district court acknowledged that
it was bound by precedent, as Rodriguez’s counsel conceded, to overrule
Rodriguez’s objection that his offense did not constitute “statutory rape” or
“sexual abuse of a minor” under § 2L1.2.4 After overruling his objections, the
district court calculated his Guidelines range of forty-six to fifty-seven months.


       4
         Accordingly, we can affirm the application of the sixteen-level crime-of-violence
enhancement if the offense defined in Texas Penal Code § 22.011(a)(2) constitutes “statutory
rape” or “sexual abuse of a minor” for purposes of § 2L1.2(b)(1)(A)(ii).

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      The district court, however, explicitly noted that despite its conclusion that
the Guidelines range was forty-six to fifty-seven months, a variance was
appropriate and requested further argument on the appropriate sentence to
impose. Rodriguez’s counsel continued by arguing that one year and a day was
the appropriate sentence considering his significant cultural assimilation.
Rodriguez also made a statement on his own behalf, which acknowledged that
he knew it was a crime to return to the United States but explained that he
returned “with the best intentions with being with my family and helping them
out.” The government declined the opportunity to provide further argument.
      After hearing all arguments by Rodriguez and the government, the district
court explained:
      All right. Unfortunately, you’re both right. He was convicted. It’s
      an unusual set of circumstances that appear to have given rise to
      that conviction, and I credit the government for recognizing that
      this should not be treated in a literal or sort of hand-fisted way as
      a crime of violence under 3553(a). I agree that under 3553(a) there
      does need to be a lower sentence than the guidelines would
      otherwise call for. The extent of the variance is the issue of course.
      Putting all of the factors together, including culture assimilation
      and the fact that this is, I guess, the third time the defendant has
      returned after being deported, which cuts in the other direction, and
      that he has a conviction and these circumstances giving rise to it,
      appears the appropriate 3553(a) sentence would be 24 months, with
      another month off of that to reflect the ICE custody for which he
      would otherwise not receive credit, which is a total sentence of 23
      months. That is less than the government asked for. It’s somewhat
      more than the defendant asked for. But the Court believes that it
      does address all of the 3553(a) factors in the appropriate way.
      The Statement of Reasons (“SOR”), which the district court filed a few
days after the sentencing hearing, reflected the district court’s explanation at
the sentencing hearing that it was adopting the PSR without change, but
imposing a sentence outside the advisory Guidelines system. Specifically, the
district court checked the box indicating that “the nature and circumstances of
the offense and the history and characteristics of the defendant pursuant to 18


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U.S.C. § 3553(a)(1)” justified the selection of a sentence outside the advisory
Guidelines system.
      On appeal, Rodriguez argues that Texas Penal Code § 22.011(a)(2) was
overbroad because it set the age of consent too high and required an age
differential that was too low.      A panel of this court rejected Rodriguez’s
arguments with respect to the age of consent as foreclosed by circuit precedent,
noting that this court had previously held that the offense under § 22.011(a)(2)
constitutes both “statutory rape” and “sexual abuse of a minor”—both of which
are enumerated as “crimes of violence” for purposes of § 2L1.2(b)(1)(A)(ii).
United States v. Rodriguez, 698 F.3d 220 (5th Cir.), vacated and reh’g en banc
granted by 701 F.3d 1080 (5th Cir. 2012) (per curiam). The panel rejected his
argument with respect to the age-differential issue on the ground that there is
substantial disagreement across the states about the age difference required
between the victim and the defendant. Id. The panel concurrence called
attention to “confusion in our case law” over our inconsistent determinations of
the “generic, contemporary meaning” of “minor” in the context of the “sexual
abuse of a minor” and “statutory rape” offense categories in the § 2L1.2
enhancement. Id. at 227. Rodriguez subsequently sought and obtained en banc
review.
                                  II. Discussion
      Under Gall v. United States, we review a sentencing decision for
reasonableness regardless of whether the sentence imposed is inside or outside
the Guidelines range. 552 U.S. 38, 51 (2007). In conducting this review, we
“must first ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range . . . .” Id. If the district court’s sentencing decision is procedurally sound,
we “then consider the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Id. In this case, Rodriguez contends only that
the district court committed procedural error by improperly calculating the

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Guidelines range. He does not argue that the twenty-three-month sentence was
substantively unreasonable.5
       Rodriguez claims that it was error for the district court to impose a
sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a crime
of violence based on his prior conviction for sexual assault of a child under Texas
Penal Code § 22.011(a)(2). The Texas statute defines “child” as a person under
the age of seventeen. TEX. PENAL CODE § 22.011(c)(1). In Rodriguez’s view, the
offense categories of “sexual abuse of a minor” and “statutory rape” enumerated
in the § 2L1.2(b)(1)(A)(ii) enhancement require a victim under the age of sixteen.
We disagree, and hold that for the purposes of “sexual abuse of a minor” in the
§ 2L1.2 enhancement, the “generic contemporary meaning” of “minor” is a person
under the age of majority—which we conclude to be eighteen. Moreover, the age
of consent for the purposes of “statutory rape” in § 2L1.2 is the age of consent as
defined by statute in the jurisdiction where the prior conviction was obtained.6


       5
         Following United States v. Booker, we review sentences for reasonableness in light of
the factors set forth in 18 U.S.C. § 3553(a). 543 U.S. 220 (2005). We have held that “[a] non-
Guideline[s] sentence” is unreasonable “(1) where it does not account for a factor that should
have received significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006) (citations omitted). Based on our review of
the record, we find no basis for overturning the district court’s discretion in selecting
Rodriguez’s sentence because: (1) the factors the district court considered in selecting
Rodriguez’s sentence were all relevant, proper factors; (2) there are no other factors relating
to Rodriguez that should have received significant weight; and (3) the district court did not err
in balancing the sentencing factors.
       6
         We recognize that our approach today conflicts with our approach in United States v.
Lopez–DeLeon, in which we relied on definitions in the majority of state codes, the Model Penal
Code, and federal law to conclude that the “generic, contemporary meaning” of the age of
consent was sixteen for the purposes of the “statutory rape” category in § 2L1.2. 513 F.3d 472,
474–75 (5th Cir. 2008). It also conflicts with our approach in United States v. Munoz–Ortenza,
in which we looked to definitions in the majority of state codes, the Model Penal Code, and
federal law to conclude that the “generic, contemporary meaning” of “minor” was sixteen for
the purposes of applying the “sexual abuse of a minor” category in § 2L1.2 to prior convictions
involving oral copulation. 563 F.3d 112, 114–16 (5th Cir. 2009). We have relied on both
Lopez–DeLeon and Munoz–Ortenza in subsequent cases to hold that state statutes involving
sexual crimes with persons over the age of sixteen are too broad to categorically constitute
either “statutory rape” or “sexual abuse of a minor” under § 2L1.2. See, e.g., United States v.

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       A defendant convicted of illegal reentry is subject to a Guidelines
enhancement if he was convicted of a “crime of violence” prior to his removal or
deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2
define “crime of violence” as one of several enumerated offense categories,
including “sexual abuse of a minor” and “statutory rape.”7 Id. § 2L1.2 cmt.
n.1(B)(iii). We review de novo whether a prior conviction qualifies as a crime of
violence within the meaning of the Guidelines.                             United States v.
Hernandez–Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (citation omitted).
       When determining whether a prior conviction qualifies as a crime of
violence under the Guidelines, we have been using the categorical approach that
the Supreme Court first outlined in Taylor v. United States, 495 U.S. 575 (1990).
Under the categorical approach, the analysis is grounded in the elements of the
statute of conviction rather than a defendant’s specific conduct.8 See United

Chavez–Hernandez, 671 F.3d 494, 499–500 (5th Cir. 2012). In light of today’s holding, these
prior decisions are no longer valid precedent to the extent that they use approaches other than
a plain-meaning approach to define the “generic, contemporary meaning” of the “statutory
rape” and “sexual abuse of a minor” offense categories in § 2L1.2.
       7
           Application note 1 of § 2L1.2 defines “crime of violence” as:
                [A]ny 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).
       8
        In limited circumstances, we may take a modified categorical approach to determine
“whether a plea of guilty to [an enumerated offense] defined by a nongeneric statute
necessarily admitted elements of the generic offense” by looking only to “the charging
document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26


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States v. Calderon–Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc) (citations
omitted). To the extent that Taylor continues to be instructive beyond its
specific statutory context, we then will interpret the meaning of an undefined
offense category in the Guidelines “according [to] its ‘generic, contemporary
meaning,’ and rely on a uniform definition regardless of the ‘labels employed by
the various States’ criminal codes.’” United States v. Dominguez–Ochoa, 386
F.3d 639, 642–43 (5th Cir. 2004) (quoting Taylor, 495 U.S. at 592, 598). The
Guidelines do not define “sexual abuse of a minor” or “statutory rape” under
§ 2L1.2, so the crux of this case is the “generic, contemporary meaning” of: (1)
the term “minor” in “sexual abuse of a minor,”9 and (2) the age of consent
required for “statutory rape.”10

(2005); United States v. Miranda–Ortegon, 670 F.3d 661, 663 (5th Cir. 2012) (citation omitted)
(‘We may take a modified categorical approach, permitting consultation of the allegations in
the charging instrument, if the statute of conviction has disjunctive elements.”).
       9
         Rodriguez does not challenge the “generic, contemporary meaning” of “sexual” or
“abuse” in the “sexual abuse of a minor” offense category under the § 2L1.2 enhancement.
       10
          We agree with Judge Owen that the language of the Guidelines enhancement at issue
and its applicable commentary should always be the starting point when deriving the meaning
of an undefined Guidelines term. We disagree with her characterization of our approach as
looking to dictionary definitions first, and in so doing, transferring the vital function of the
Judiciary to dictionary authors. In fact, our analysis explicitly uses the plain terms of the
§ 2L1.2 enhancement and its applicable commentary as the starting point—as any plain-
meaning approach would. We view a plain-meaning approach—by first looking to the
Guidelines themselves, then the relevant statutes at issue, and then definitions in legal and
other well-accepted dictionaries when necessary—as the best method to derive the “generic,
contemporary meaning” of undefined, non-common-law offense categories. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (1st ed. 2012) (“The
ordinary-meaning rule is the most fundamental semantic rule of interpretation. It governs
constitutions, statutes, rules, and private instruments.”). We are not alone in the struggle to
define the meaning of these offense categories. As set forth infra, circuits have concluded that
the meaning of these offense categories is unclear from the Guidelines and commentary
themselves, and have adopted divergent methods to derive their meaning which, we believe,
coheres persuasively in the plain-meaning approach we refine and offer. Compare United
States v. Ramirez–Garcia, 646 F.3d 778, 782–83 (11th Cir. 2011), United States v. Lopez–Solis,
447 F.3d 1206–07 (9th Cir. 2006), United States v. Londono–Quintero, 289 F.3d 147, 153–54
(1st Cir. 2002), and United States v. Martinez–Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001),
with United States v. Rangel–Castaneda, ___ F.3d ___, 2013 WL 829149, at *5 (4th Cir. Mar.
7, 2013).


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      Deriving the “generic, contemporary meaning” of an offense category
enumerated in the Guidelines is challenging because Taylor and its progeny do
not specify whether we must use a particular method when engaging in a Taylor
analysis.   For these reasons, we have found it difficult to apply Taylor’s
categorical approach.
      The parties’ arguments illustrate our methodological inconsistencies when
applying Taylor. In some cases, we have taken a plain-language approach and
relied primarily on dictionary definitions to derive the “generic, contemporary
meaning” of offense categories enumerated in the Guidelines. See, e.g., United
States v. Izaguirre–Flores, 405 F.3d 270, 275–76 (5th Cir. 2005) (using
definitions of “sexual abuse” in Black’s Law Dictionary and Webster’s Third New
International Dictionary to define the “generic, contemporary meaning” of
“sexual abuse of a minor” for the purposes of the crime-of-violence enhancement
in § 2L1.2); United States v. Zavala–Sustaita, 214 F.3d 601, 604 (5th Cir. 2000)
(relying on definitions of “sexual” and “abuse” in The American Heritage
Dictionary to determine the generic meaning of “sexual abuse of a minor” for the
purposes of the aggravating felony sentencing enhancement in § 2L1.2). In other
cases, we have looked to definitions in various state codes, federal law, the Model
Penal Code, and criminal law treatises. See, e.g., Munoz–Ortenza, 563 F.3d at
114–16 (relying on definitions in the majority of state codes, the Model Penal
Code, and federal law to conclude that the “generic, contemporary meaning” of
“minor” was sixteen for the purposes of applying the “sexual abuse of a minor”
category in § 2L1.2 to prior convictions involving oral copulation); Lopez–DeLeon,
513 F.3d at 474–75 (relying on definitions in the majority of state codes, the
Model Penal Code, and federal law to conclude that the “generic, contemporary
meaning” of the age of consent was sixteen for the purposes of the “statutory
rape” category in § 2L1.2). The use of these different approaches has created
challenges for the bench and the bar. Further, our efforts have yielded results
at odds with our sister circuits’ conclusions.       See, e.g., United States v.

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Montenegro–Recinos, 424 F.3d 715, 717–18 (8th Cir. 2005).11 Therefore, we take
this opportunity to clarify the method by which we determine the “generic,
contemporary meaning” of an enumerated offense category when engaging in a
Taylor analysis.12
       Three different methods of determining the “generic, contemporary
meaning” of offense categories enumerated in federal sentencing enhancements
have emerged among the circuits. First, the majority of circuits have taken a
plain-language approach, relying on the common meaning of terms as stated in
legal and other well-accepted dictionaries.13 Second, some circuits have taken

       11
            The Eighth Circuit in Montenegro–Recinos explained:
                 We have no difficulty concluding . . . that a fourteen- or
                 fifteen-year-old child has not reached the age of majority, which
                 is eighteen years of age in most states. See United States v.
                 Martinez–Carillo, 250 F.3d 1101, 1104–05 (7th Cir. 2001), cert.
                 denied, 534 U.S. 927 (2001) (and cases cited therein). Although
                 the term “minor” is not specifically defined in § 2L1.2, other
                 provisions of the sentencing guidelines, including the guideline
                 for “criminal sexual abuse,” see U.S.S.G. § 2A3.1 comment. (n.1),
                 repeatedly and consistently define a minor as a person under
                 eighteen years of age. See, e.g., U.S.S.G. §§ 2A3.4 comment. (n.1);
                 2G2.1 comment. (n.1); see also 18 U.S.C. § 2256(1).
Id. at 717–18.
       12
          We agree with Judge Haynes that, ultimately, the            United States Sentencing
Commission has the power, and the empirical competence, to            appropriately address the
frustration and complexity perplexing this area of the law. As        Judge Owen observes, the
Sentencing Commission provided such clarification in light of         our struggle to define the
intended meaning of “forcible sex offense” in § 2L1.2.
       13
          In various cases, the First, Seventh, Eighth, and Tenth Circuits have applied this
plain-meaning approach to define the “generic, contemporary meaning” of undefined offense
categories enumerated in the Guidelines. See, e.g., Londono–Quintero, 289 F.3d at 153–54
(relying on the plain meaning of “sexual” and “abuse” as stated in Random House Webster’s
Unabridged Dictionary to define the meaning of “sexual abuse of a minor” in the aggravated
felony enhancement in U.S.S.G. § 2L1.2(b)(1)(A)); Martinez–Carillo, 250 F.3d at 1104 (looking
to the definition of “minor” in Black’s Law Dictionary to define the generic meaning of “sexual
abuse of a minor” in the “aggravated felony” enhancement under § 2L1.2); United States v.
Graham, 982 F.2d 315, 316 (8th Cir. 1992) (looking to the definition of “dwelling” in Black’s
Law Dictionary to define the generic meaning of “burglary of a dwelling” in the § 4B1.1 crime-
of-violence enhancement); United States v. Romero–Hernandez, 505 F.3d 1082, 1087–88 (10th
Cir. 2007) (looking to the dictionary definition of “sex offense” in Black’s Law Dictionary to

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                                        No. 11-20881

a multi-source approach, deriving the generic meaning of an offense category
from the various state codes, the Model Penal Code, federal law, and criminal
law treatises.14     Finally, the Ninth and Eleventh Circuits have adopted a
mixed-method approach, distinguishing between: (1) traditional offense
categories that are defined at common law and (2) non-traditional offense
categories that are not defined at common law.15 To determine the generic

define the generic meaning of “forcible sex offense” in the § 2L1.2 crime-of-violence
enhancement). We note that the Fourth Circuit has also applied this plain-meaning approach
to define the “generic, contemporary meaning” of “sexual abuse of a minor” in § 2L1.2. United
States v. Diaz–Ibarra, 522 F.3d 343, 348–49 (4th Cir. 2008) (relying on the “common meaning”
of the words “sexual” and “minor” as stated in Webster’s Third New International Dictionary
to define the meaning of “sexual abuse of a minor” in the § 2L1.2 crime-of-violence
enhancement). Recently, however, the Fourth Circuit veered from this plain-meaning
approach, and looked to the majority of state codes to conclude that the “generic, contemporary
meaning” of the age of consent is sixteen for the purposes of “statutory rape” in § 2L1.2.
Rangel–Castaneda, ___ F.3d ___, 2013 WL 829149, at *5. This recent opinion is puzzling in
that it recognizes that the simple strategy of “counting noses” will not work in all cases,
acknowledges that states retain discretion to define the offense of statutory rape how they see
fit, yet still relies on a state-by-state survey to define the “generic, contemporary meaning” of
“statutory rape” in § 2L1.2. Id. In our view, this inconsistent rationale makes our court’s
harmonizing approach all the more important.
       14
          The D.C. and Third Circuits have applied this multi-source approach to define the
“generic, contemporary meaning” of undefined offense categories enumerated in the
Guidelines. See, e.g., United States v. De Jesus Ventura, 565 F.3d 870, 876–77 (D.C. Cir. 2009)
(looking to definitions in the various state codes, the Model Penal Code, and federal law to
define the generic meaning of “kidnapping” in the § 2L1.2 crime-of-violence enhancement).
Compare United States v. Marrero, 677 F.3d 155, 165–66 (3d Cir. 2012) (looking to the Model
Penal Code, state laws, and criminal law treatises to reach a generic definition of “murder” in
U.S.S.G. § 4B1.1), with United States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995) (relying
on the dictionary definition of “dwelling” to define the generic meaning of “dwelling” in
“burglary of a dwelling”).
       15
         In numerous cases, the Ninth and Eleventh Circuits have applied this mixed-method
approach to define the “generic, contemporary meaning” of offense categories enumerated in
the Guidelines. See, e.g., United States v. Corona–Sanchez, 291 F.3d 1201, 1204 (9th Cir.
2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002) (explaining
that the Ninth Circuit employs two different methods to derive the meaning of offense
categories enumerated in sentencing enhancements depending on whether those categories
reflect traditional offense categories defined at common law or non-traditional offense
categories not defined at common law); Lopez–Solis, 447 F.3d at 1201, 1206–07 (characterizing
“sexual abuse of a minor” as a non-traditional offense category and relying on dictionary
definitions of “sexual” and “minor” to derive its generic meaning); Ramirez–Garcia, 646 F.3d
at 782–83 (characterizing “sexual abuse of a minor” as a non-traditional offense category and


                                               13
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                                       No. 11-20881

meaning of traditional offense categories, they look to the various codes, the
Model Penal Code, federal law, and criminal law treatises. For non-traditional
offense categories, they rely on the common meaning of terms as stated in legal
and other well-accepted dictionaries.
       Today, we join the First, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits and adopt a plain-meaning approach when determining the “generic,
contemporary meaning” of non-common-law offense categories enumerated in
federal sentencing enhancements. Under this approach, our application of
Taylor’s categorical approach to a prior state conviction proceeds in the following
four steps: First, we identify the undefined offense category that triggers the
federal sentencing enhancement. We then evaluate whether the meaning of that
offense category is clear from the language of the enhancement at issue or its
applicable commentary. If not, we proceed to step two, and determine whether
that undefined offense category is an offense category defined at common law,
or an offense category that is not defined at common law.16 Third, if the offense

relying on definitions in Webster’s Third New International Dictionary and Black’s Law
Dictionary “to give words their plain meaning that comports with common usage” (citing
Padilla–Reyes, 247 F.3d at 1163).
       16
           Under this approach, we may resort to many sources, including criminal law
treatises, to determine whether an enumerated offense category is defined at common law or
not. We acknowledge that identifying offense categories that are defined at common law—and
those that are not—is not always an easy task. However, the Supreme Court engaged in that
task in Taylor, 495 U.S. at 592–96; and the task will not risk wading into any multiplicity of
early English law inasmuch as the enumerated offenses in question number only twelve, and
the considerable number of those twelve are common law offenses. LaFave notes that one
technique that is commonly used to determine whether an offense qualifies as a common-law
crime “is to look at books by recognized writers on English crimes, especially Blackstone, to
determine the existence and definition of a common law crime.” Criminal Law, § 2.1(e) (5th
ed. 2010). Moreover, “[i]f the court finds an English case directly in point decided before 1607
(or, in some states, 1775), holding that the activity in question constituted a common law
crime, clearly this would qualify as a common law crime.” Id.
        To facilitate the application of this method to future cases, we note LaFave identifies
the following felonies at common law: murder, suicide, manslaughter, burglary, arson, robbery,
larceny, rape, sodomy and mayhem. Id. § 2.1(b). He identifies the following misdemeanors
at common law: assault, battery, false imprisonment, libel, perjury, and intimidation of jurors.
Id. Moreover, Blackstone’s Commentaries recognizes the following common-law offenses:


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                                        No. 11-20881

category is a non-common-law offense category, then we derive its “generic,
contemporary meaning” from its common usage as stated in legal and other
well-accepted dictionaries.17 Fourth, we look to the elements of the state statute
of conviction and evaluate whether those elements comport with the generic
meaning of the enumerated offense category.
       We adopt this approach based on our close review of Taylor. In Taylor, the

obstructing process, receiving stolen goods, conspiracy, perjury, bribery, extortion [categorized
as offenses against public justice], 4 William Blackstone, Commentaries on the Laws of
England 127–41 (1st American ed. 1772) (reprint 1992); suicide, murder, manslaughter
[homicide], id. at 176–204; mayhem, abduction, rape, assault, false imprisonment, kidnapping
[offenses against the persons of individuals], id. at 205–19; arson, burglary [offenses against
the habitations of individuals]; id. at 220–29; larceny/theft, robbery, malicious mischief,
forgery [offenses against private property], id. at 229–47.
       17
          We limit our holding today to offense categories that are not defined at common law.
Accordingly, our precedent that looks to definitions in the variety of state codes, the Model
Penal Code, federal law, and criminal law treatises to define the “generic, contemporary
meaning” of offense categories defined at common law remains intact. See, e.g., United States
v. Esparza–Perez, 681 F.3d 228, 229–30 (5th Cir. 2012) (looking to the Model Penal Code,
LaFave and Scott treatises, modern state codes, and dictionary definitions to derive the
“generic, contemporary meaning” of “aggravated assault” in the U.S.S.G. § 2L1.2
enhancement); United States v. Gonzalez–Ramirez, 477 F.3d 310, 317–18 (5th Cir. 2007)
(looking to the Model Penal Code, modern state codes, and LaFave’s criminal law treatise to
derive the “generic, contemporary meaning” of “kidnapping” in the § 2L1.2 enhancement). We
leave the mechanics of how we derive the “generic, contemporary meaning” of common-law
offense categories for another day. Further, we emphasize that our decision today cannot
resolve all of the confusion that originates from the lack of guidance on how to apply Taylor’s
categorical approach across different offense categories. We stress, however, that bringing our
case law involving non-common-law offense categories in line with the majority of circuits
fosters uniformity in the application of Taylor’s categorical approach. Most recent Federal
Judicial Caseload Statistics report that just almost two-thirds (63%) of the total federal
criminal appeals commenced annually originate from the circuits that take now a plain-
meaning approach when deriving the “generic, contemporary meaning” of non-common-law
offense categories—including the First, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh
Circuits. See Administrative Office of the United States, Federal Judicial Caseload Statistics
2011, tbl. B-1: U.S. Courts of Appeals—Appeals Commenced, Terminated, and Pending, by
Circuit During the 12-Month Period Ending March 31, 2011 (March 31, 2011) (available at
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStat
istics/2011/tables/B01Mar11.pdf). Almost one half (44%) of the total criminal appeals originate
from the Fifth, Ninth, and Eleventh Circuits alone. See id. (reporting a total of 12,578
criminal appeals commenced in all circuits between March 31, 2010 and March 31, 2011, and
of those appeals, 2,489 commenced in the Fifth Circuit, 1,609 commenced in the Ninth Circuit,
and 1,501 commenced in the Eleventh Circuit).



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                                       No. 11-20881

Supreme Court considered whether the defendant’s prior second-degree burglary
conviction in Missouri was a “violent felony” under a sentence-enhancement
provision of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).18
When Congress first passed the ACCA in 1984, the statute defined “burglary”
as “any felony consisting of entering or remaining surreptitiously within a
building that is property of another with intent to engage in conduct constituting
a Federal or State offense.”          Taylor, 495 U.S. at 581 (quoting 18 U.S.C.
§ 1202(c)(9) (repealed 1986)). Congress deleted this definition from the ACCA
when it amended the statute, but retained burglary as a predicate offense.
Because of this deletion, the Supreme Court was faced with the question of how
to define the meaning of “burglary” in the ACCA. Id. at 580.
       The Supreme Court first rejected the argument that “Congress intended
the meaning of ‘burglary’ for purposes of [the ACCA] to depend on the definition
adopted by the State of conviction.” Id. at 590. The Supreme Court reasoned
that such an approach would result in a person convicted of “burglary” in one
state qualifying for the ACCA enhancement, but not a person who committed the
same law-breaking acts in a different state that did not label those acts as
“burglary.” Id. Viewing this as an “implausible” interpretation of Congress’s
intent, id., the Supreme Court concluded that “burglary” in the ACCA “must
have some uniform definition independent of the labels employed by the various
States’ criminal codes.” Id. at 592.
       In its search for uniformity, the Supreme Court then addressed the
approach taken by some courts of appeals that defined “burglary” in the ACCA
to mean the common-law definition of burglary. Id. In rejecting that position,

       18
         Although Taylor considered whether a conviction qualified as a “violent felony” under
the ACCA, we have applied its analysis when interpreting the meaning of offense categories
enumerated in the Sentencing Guidelines. See United States v. Ortega–Gonzaga, 490 F.3d
393, 394–95 (5th Cir. 2007) (applying Taylor to determine whether the defendant’s prior state
conviction was the enumerated felony of “burglary of a dwelling” in the § 2L1.2 crime-of-
violence enhancement).


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                                  No. 11-20881

the Supreme Court stressed that “the contemporary understanding of ‘burglary’
has diverged a long way from its common-law roots.” Id. at 593. The Supreme
Court reasoned that although “[b]urglary was defined by the common law to be
the breaking and entering of the dwelling house of another in the nighttime with
the intent to commit a felony,” id. at 580 n.3 (citation omitted), most states had
“expanded this definition to include entry without a ‘breaking,’ structures other
than dwellings, offenses committed in the daytime, entry with intent to commit
a crime other than a felony, etc.,” id. at 593 (citation omitted).
      Next, the Supreme Court evaluated whether the meaning of “burglary” in
the ACCA applied to only a special subclass of burglaries with elements that
included “conduct that presents a serious risk of physical injury to another.” Id.
at 597. The Supreme Court concluded that this argument was inconsistent with
the plain language of the ACCA. It reasoned that “if this were Congress’ intent,
there would have been no reason to add the word ‘burglary’ to [the ACCA], since
that provision already includes any crime that ‘involves conduct that presents
a serious potential risk of physical injury to another.’” Id.
      After ruling that the meaning of “burglary” was not limited to its
common-law definition or to a subclass of burglaries, the Supreme Court stated
that “Congress meant by ‘burglary’ the generic sense in which the term is now
used in the criminal codes of most States.” Id. at 598 (citing Perrin v. United
States, 444 U.S. 37, 45 (1979); United States v. Nardello, 393 U.S. 286, 289
(1969)).   The Supreme Court further stated that “[a]lthough the exact
formulations vary, the generic, contemporary meaning of burglary contains at
least the following elements: an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.” Id.
(citing W. LaFave & A. Scott, Substantive Criminal Law § 8.13(a), p. 466 (1986)).
Based on these principles, the Supreme Court held that “an offense constitutes
‘burglary’ for purposes of [the ACCA] if either its statutory definition
substantially corresponds to ‘generic’ burglary, or the charging paper and jury

                                        17
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                                  No. 11-20881

instructions actually required the jury to find all the elements of generic
burglary in order to convict the defendant.” Id. at 602.
      We have several times interpreted Taylor as requiring that lower courts
always look to the majority of state codes—as well as to other sources, including
the Model Penal Code, federal law, and criminal law treatises—when
determining the “generic, contemporary meaning” of an undefined offense
category in the Guidelines. See, e.g., United States v. Santiesteban–Hernandez,
469 F.3d 376, 379 (5th Cir. 2006) (“The generic, contemporary meaning of a
predicate offense ‘roughly correspond[s] to the definitions of [the crime] in a
majority of the States criminal codes.’” (alteration in original) (quoting Taylor,
495 U.S. at 589)); Munoz–Ortenza, 563 F.3d at 114–16 (relying on definitions in
the majority of state codes, the Model Penal Code, and federal law to conclude
that the “generic, contemporary meaning” of “minor” was sixteen for the
purposes of applying “sexual abuse of a minor” in § 2L1.2 to prior convictions
involving oral copulation); Lopez–DeLeon, 513 F.3d at 474–75 (relying on
definitions in the majority of state codes, the Model Penal Code, and federal law
to conclude that the “generic, contemporary meaning” of the age of consent was
sixteen for the purposes of “statutory rape” in § 2L1.2); United States v.
Mendez–Casarez, 624 F.3d 233, 239 (5th Cir. 2010) (“The generic, contemporary
meanings of offenses can be found as they are defined ‘in the criminal codes of
most States,’ the Model Penal Code, and treatises such as Wayne R. LaFave &
Austin W. Scott, Substantive Criminal Law (1986).” (footnote omitted) (quoting
Taylor, 495 U.S. at 598)). We conclude that this interpretation reads Taylor too
strictly and overlooks that the Taylor Court referenced statutory definitions for
the narrow purpose of distinguishing the contemporary sweep of “burglary” from
its antiquated common-law past. Contrary to our prior interpretation, Taylor
did not impose a methodological requirement on lower courts to look always to
the majority of state codes—as well as the Model Penal Code, federal law, and
criminal law treatises—when deriving the “generic, contemporary meaning” of

                                       18
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                                       No. 11-20881

an undefined offense category in a federal sentencing enhancement.                         See
Ramirez–Garcia, 646 F.3d at 782–83 (rejecting that Taylor requires lower courts
to look to definitions in the various state codes, criminal law treatises, and the
Model Penal Code to formulate the “generic, contemporary meaning” of “sexual
abuse of a minor” in § 2L1.2).19
       Our construction of Taylor is supported by the reasoning in the two cases
that the Taylor Court cited as authority to support its reliance on the broadened
definitions of “burglary” in the majority of state codes—Perrin v. United States
and United States v. Nardello.             Both cases involved common-law offense
categories that the Court defined using their “contemporary, generic meaning,”
not their antiquated meaning at common law. In Perrin, the petitioner argued
that Congress intended to confine the meaning of “bribery” in 18 U.S.C. § 1952
(“the Travel Act”) to its common-law definition, which limited the commission

       19
          We are convinced, as to the non-common-law offense categories of “sexual abuse of
a minor” and “statutory rape,” that our labors in cataloguing state and federal criminal laws
and learned treatises would not further Taylor’s goal of uniformity. If, as Rodriguez argues,
that search would show that Texas Penal Code § 22.011(a)(2) is categorically overbroad as
compared to the generic offenses, because it includes victims over the age of sixteen, then
under Taylor’s categorical approach no conviction under § 22.011(a)(2) could qualify for a
crime-of-violence sentencing enhancement under § 2L1.2(b)(1)(A)(ii), no matter the actual
victim’s age. See United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir. 2006).
Corresponding Mississippi law, by contrast, generally caps the age of the victim at sixteen,
fitting within Rodriguez’s proposed generic definition of “minor.” See MISS. CODE ANN. § 97-3-
65(1) (statutory rape); id. § 97-3-95(1) (sexual battery). Accordingly, a defendant convicted in
Mississippi of having sexual intercourse with a thirteen-year-old would be subject to a crime
of violence enhancement, while a defendant convicted in Texas of the same conduct would not.
Another oddity, highlighting the difficulty in collecting and meaningfully analyzing disparate
criminal statutes dealing with sexual offenses involving minors, is that the federal crime of
“sexual abuse of a minor or ward” excludes from its definition of “minor” persons younger than
twelve years old. See 18 U.S.C. § 2243(a). A final example is that tabulating jurisdictions may
not account for whether the most populous states have chosen to adhere to the “majority” view.
See United States v. Viezcas–Soto, 562 F.3d 903, 914 (8th Cir. 2009) (Gruender, J., dissenting)
(“It seems to me that a definition of ‘statutory rape’ that excludes the statutory rape laws of
seventeen states, including the most populous state in the Union [California], along with
Texas (which sets the age of consent at seventeen), New York (seventeen), Florida (eighteen),
and Illinois (seventeen), cannot reasonably be classified as ‘generic.’”). These persistent
complexities strengthen our conclusion that the majority of our sister circuits are correct, and
that Taylor could not have called for the Sisyphean task of examining each jurisdiction’s law
where it concerns non-common-law offense categories.

                                              19
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                                  No. 11-20881

of the offense to public officials. 444 U.S. at 41. In rejecting this narrow
definition, the Supreme Court reasoned:
            In sum, by 1961 the common understanding and
            meaning of “bribery” had extended beyond its early
            common-law definitions. In 42 States and in federal
            legislation, “bribery” included the bribery of individuals
            acting in a private capacity. It was against this
            background that the Travel Act was passed.
Id. at 45 (footnote omitted). In Nardello, the Supreme Court addressed the
meaning of “extortion” in the Travel Act. 393 U.S. at 287. The common-law
definition of that offense also was limited to public officials. Id. at 289. The
Supreme Court recognized that “[i]n many States . . . the crime of extortion ha[d]
been statutorily expanded to include acts by private individuals under which
property is obtained by means of force, fear or threats.” Id. at 290 (citation
omitted). In concluding that “extortion” in the Travel Act was not limited to its
common-law definition, the Supreme Court reasoned that “in many States
. . . the crime of extortion has been statutorily expanded to include acts by
private individuals.” Id.
      We recognize that the Taylor Court rejected the view that Congress
intended for undefined offense categories in federal sentencing enhancements
to correspond to what states happen to call their crimes. 495 U.S. at 591. At the
same time, our federalist system vests states with the power to define and to
enforce their own criminal laws, a principle validated by Taylor, Perrin, and
Nardello, which discerned congressional intent that contemporary state statutes,
not their common-law antecedents, should be supported as the guiding focus in
defining common law, enumerated offenses. See id. at 593–94; Perrin, 444 U.S.
at 315; Nardello, 395 U.S. at 296; see generally Engle v. Isaac, 456 U.S. 107, 128
(1982) (affirming that “[t]he States possess primary authority for defining and
enforcing the criminal law”). In joining the First, Seventh, Eighth, Ninth, Tenth,
and Eleventh Circuits, we facilitate uniformity across the circuits by adopting


                                       20
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                                  No. 11-20881

a single, workable method to derive the “generic, contemporary meaning” of non-
common-law offense categories enumerated in federal sentencing enhancements.
      Taking a plain-language approach when determining the “generic,
contemporary meaning” of non-common-law offense categories furthers this
cooperative federalism approach. As a conceptual matter, it is difficult, if not
impossible, to identify an accurate set of discrete elements that define offense
categories that do not have a generic structure that is rooted in common law.
See, e.g., See United States v. Corona–Sanchez, 234 F.3d 449, 453 (9th Cir. 2000)
(reasoning that “[b]ecause burglary is a discrete offense [at common law], it
lends itself to a narrow definition that may be applied uniformly . . . without
regard to nuances of state law” (internal quotation marks and citations
omitted)). Moreover, wide variations in prohibited conduct under state codes
make it difficult, if not impossible, to determine whether a majority consensus
exists with respect to the element components of an offense category or the
meaning of those elements.
      The wide variation of prohibited conduct in the various state codes
involving sexual abuse of minors lends support to these arguments. As the
Eleventh Circuit has observed, “[w]hile some states choose to punish only
physical contact with minors, others punish a substantial range of non-physical
acts towards minors, and while some require a perpetrator’s physical presence
in front of a minor, others punish remote acts and communications.”
Ramirez–Garcia, 646 F.3d at 783 n.8. Given this wide variation, it is doubtful
that we can identify a majority consensus, or even single out a discrete set of
common elements that define “sexual abuse of a minor” in § 2L1.2. See id.
(stressing that “formulating a generic definition of ‘sexual abuse of a minor’ from
states’ statutes and other sources would prove overwhelming, if not an
impossibly inaccurate process”). The same problem arises in the context of
“statutory rape” under § 2L1.2. Many jurisdictions do not use the specific label
“statutory rape” in their codes, and address the legality of many different types

                                        21
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                                        No. 11-20881

of sexual activities involving minors (e.g., sexual contact, penetration, etc.) under
a single statute.20 Further, twenty-three jurisdictions characterize “statutory
rape” (or its equivalent) as a strict-liability offense, whereas eighteen
jurisdictions allow for a mens rea defense and limit strict liability to situations
in which there is a specific age differential between the victim and the
defendant. See Catherine L. Carpenter, On Statutory Rape, Strict Liability, and
the Public Welfare Offense Model, 53 AM. U. L. REV. 313, 385–91 (2003)
(providing a jurisdictional analysis of statutory rape laws). This variation makes
it difficult to derive a uniform “generic, contemporary meaning” of “statutory
rape” that is accurate by looking to the various state codes—and other sources,
including the Model Penal Code, federal law, and criminal law treatises. See id.
at 317 (“Unlike many crimes whose common law blueprint is copied throughout
the country with uniformity, statutory rape laws vary greatly among the
states”). It also complicates how we should calculate the number of jurisdictions
that would comprise a “majority” for the purposes of “statutory rape” under
§ 2L1.2. Indeed, that endeavor becomes even more illusory if it is done by
disaggregating closely-related elements, like age of consent and age differential,
see also 18 U.S.C. § 2243(a) (defining the federal offense as applying only when
the victim is over the age of twelve but under the age of sixteen and at least four
years younger than the defendant), in order to then reassemble these elements
into perceived state-groupings we say add up to some sufficient majority to

       20
         See, e.g., ALASKA STAT. §§ 11.41.434, 11.41.436, 11.41.438, 11.41.440 (using the label
“sexual abuse of a minor”); ARIZ. STAT. ANN. § 13-1405 (“sexual conduct with a minor”); CAL.
PENAL CODE § 261.5 (“sexual intercourse with person under 18”); CONN. GEN. STAT.
§§ 53a70–53a72 (“sexual assault”); FLA. STAT. § 794.05 (“unlawful sexual activity with certain
minors”); HAW. REV. STAT. §§ 707–730; 707–733.6 (“sexual assault” and “continuous sexual
assault of a minor under the age of fourteen years”); IOWA CODE § 709.4 (“sexual abuse”); LA.
REV. STAT. ANN. § 14:80 (“carnal knowledge of a juvenile”); ME. REV. STAT. tit. 17-A, § 253
(“gross sexual assault”); MASS. GEN. LAWS ch. 272, § 4 (“inducing person under eighteen to
have sexual intercourse”); MISS. CODE ANN. § 97-3-95 (“sexual battery”); TEX. PENAL CODE
§ 22.011 (“sexual assault”); VT. STAT. ANN. tit. 13, § 3252 (“sexual assault”); W. VA. CODE § 61-
8B-3 (“sexual assault”); WYO. STAT. ANN. § 6-2-303 (“sexual assault”).



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                                  No. 11-20881

qualify as “generic.”
         For these reasons, we conclude that taking a plain-meaning approach to
derive the “generic, contemporary meaning” of non-common-law offense
categories is grounded in the most reasoned interpretation of Taylor, and avoids
some of the gymnastics that our prior application of Taylor’s categorical
approach required.
         We now apply our approach to Rodriguez’s case. As explained above, we
begin our inquiry by identifying the enumerated offense category that triggers
the federal sentencing enhancement. We then evaluate whether the meaning
of that offense category is clear from the language of the enhancement at issue
or its applicable commentary. Rodriguez’s case involves “sexual abuse of a
minor” and “statutory rape” in the § 2L1.2 crime-of-violence enhancement. We
described above that the meaning of these offense categories is unclear from the
plain terms of § 2L1.2 and its applicable commentary.
         Next, we determine whether “sexual abuse of a minor” and “statutory
rape” are offense categories defined at common law, or offense categories not
defined at common law. We conclude that both are non-common-law offense
categories. This conclusion is consistent with that of other circuits that have
considered the issue. See Ramirez–Garcia, 646 F.3d at 783 (concluding that
“sexual abuse of a minor” in the § 2L1.2 enhancement is a non-traditional
offense category that is not defined at common law); Lopez–Solis, 447 F.3d at
1206–07 (characterizing “sexual abuse of a minor” in the §2L1.2 enhancement
as non-traditional offense); United States v. Gomez–Mendez, 486 F.3d 599, 602
n.4 (9th Cir. 2007) (concluding that “statutory rape is distinct from the common
law offense”). It is also consistent with leading criminal law treatises to consider
the issue. In listing the offenses at common law, Professor LaFave’s treatise
notes:
              Although there were some early criminal statutes, in the
              main the criminal law was originally common law. Thus

                                         23
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                                      No. 11-20881

              by the 1600’s the judges, not the legislature, had created
              and defined the felonies of murder, suicide,
              manslaughter, burglary, arson, robbery, larceny, rape,
              sodomy and mayhem; and such misdemeanors as
              assault, battery, false imprisonment, libel, perjury and
              intimidation of jurors. During the period from 1660 (the
              Restoration of the monarchy of Charles II after
              Cromwell) to 1860 the process continued, with the
              judges creating new crimes when the need arose and
              punishing those who committed them: blasphemy
              (1676), conspiracy (1664), sedition (18th century),
              forgery (1727), attempt (1784), solicitation (1801).
Wayne R. LaFave, Criminal Law, § 2.1(b) (5th ed. 2010). Neither “sexual abuse
of a minor” nor “statutory rape” appears in this list. LaFave discusses all sexual
crimes involving minors in a subsection of the treatise dedicated to statutory
rape, which lends further support to the conclusion that it is difficult to cleanly
identify uniform sets of elements that define “sexual abuse of a minor” and
“statutory rape.” In that subsection, he explains that criminal prohibitions
against sexual relations with a child did not exist at early common law—rather,
those offenses were statutory creations:
              Under early English common law, sexual relations with
              a child, no matter how young, was not regarded as rape
              if the child consented. However, an Early English
              statute made it a felony to have carnal knowledge with
              a child under the age of ten, with or without the child’s
              consent.
§ 17.4(c) (citations omitted). In this passage, LaFave also cites to two early
English cases—Reg. v. Read, 1 Den. C.C. 377; Reg. v. Webb, 2 C & K 937—as
authority that sexual relations with a child were not regarded as rape if the child
consented under early English common law.21 Blackstone’s Commentaries also

       21
         We disagree with the conclusion in Judge Graves’s concurrence in part and
concurrence in the judgment that “statutory rape” is an offense category defined at common
law, rendering our plain-meaning approach inapplicable, for additional reasons. First, that
concurrence erroneously presumes that the crime of “statutory rape” was uniformly
incorporated into American law as a consequence of being codified in English law before 1607.
For example, a number of states incorporate the common law of England into their state law,

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lend support to our conclusion that “sexual abuse of a minor” and “statutory
rape” are non-common-law offense categories.                     See W. Blackstone, IV
Commentaries on the Laws of England 212 (1st American ed. 1772) (reprint
1992) (“And by statute 18 Eliz. c. 7. it is made felony . . . the abominable
wickedness of carnally knowing or abusing any woman child under the age of ten
years; in which case the consent or non-consent is immaterial.”).
       Having concluded that “sexual abuse of a minor” and “statutory rape”
under § 2L1.2. are non-common-law offense categories, we derive their “generic,
contemporary meaning” from the common usage of their terms as stated in legal
and other well-accepted dictionaries. We first determine the generic meaning
of “minor” in “sexual abuse of a minor.”22 Oxford English Dictionary defines

but do not explicitly incorporate English statutes, whether enacted before 1607 or another
date. See, e.g., ALA. CODE § 1-3-1; CAL. CIV. CODE § 22.2; HAW. REV. STAT. § 1-1; IDAHO CODE
§ 73-116; MONT. CODE ANN. § 1-1-109; NEB. REV. STAT. § 49-101; S.C. CODE ANN. § 14-1-50;
TEX. CIV. PRAC. & REM. CODE ANN. § 5.001; VA. CODE ANN. § 1-200. Second, we disagree with
the concurrence’s characterization of our approach as relying solely and improperly on a
distinction “between judge-created offenses and statutory offenses.” Our decision to
characterize “statutory rape” as a non-common-law offense category is not only based on the
ground that “statutory rape” is a statutory creation, but also on the point that “statutory rape”
lacks a mens rea requirement. Supreme Court and our precedent have recognized that mens
rea is an essential component of common-law offenses. See Staples v. United States, 511 U.S.
600, 605 (1994) (explaining that courts construe statutes “in light of the background rules of
the common law, . . . in which the requirement of some mens rea for a crime is firmly
embedded”); United States v. Garrett, 984 F.2d 1402, 1410 (5th Cir. 1993) (“The requirement
of mens rea as a predicate to criminal liability is a fundamental precept of the Anglo-American
common law.” (internal citation omitted)); see also J.W.C. Turner, The Mental Element in
Crimes at Common Law, 6 Cambridge L.J., 81, 82–83 (1936) (recognizing that the “rules on
which liability depends in crimes at common law” “require evidence as to the state of a
[defendant’s] mind.”). For example, these states have held either that statutory rape is not
a common-law offense, or distinguished statutory rape from the common-law offense of rape.
See Drake v. State, 236 S.E.2d 748, 750 (Ga. 1977); State v. Rufus, 237 N.W. 67, 73 (Wis. 1931);
State v. Lanto, 121 A. 139, 140 (N.J. 1923); State v. Pickett, 11 Nev. 255, 257–58 (Nev. 1876);
Commonwealth v. Exler, 89 A. 968, 969–71 (Pa. 1914).
       22
         The panel concurrence challenges that our prior decisions defining “minor” in “sexual
abuse of a minor” under § 2L1.2 are “unsupported by proper analysis.” 698 F.3d at 223,
vacated by 701 F.3d 1080 (granting rehearing en banc). Specifically, the panel concurrence
asserts that we have relied on our prior decision in United States v. Martinez–Vega, 471 F.3d
559, 562 (5th Cir. 2006), to reject as foreclosed any argument that Texas Penal Code
§ 22.011(a)(2) does not categorically constitute “sexual abuse of a minor” under § 2L1.2, even


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                                        No. 11-20881

“minor” as “[u]nder age; below the age of majority.” 9 Oxford English Dictionary
824 (2d ed. 1989); accord Merriam–Webster’s Collegiate Dictionary 1220 (11th
ed. 2003) (defining “minor” as “a person who has not attained the age of
majority”); Webster’s Third New International Dictionary (3d ed. 2002) (defining
“minor” as “a person of either sex under full age of majority: one who has not
attained the age at which full civil rights are accorded . . . : one who in England
and generally in the U.S. is under 21 years of age”). Moreover, Black’s Law
Dictionary (9th ed. 2009) defines “minor” as “[a] person who has not reached full
legal age; a child or juvenile.” Contrary to Rodriguez’s position, neither source
defines “minor” as below the age of sixteen. Rather, using these definitions, a
statute that prohibits acts of sexual abuse against minors will comport with the
generic meaning of “minor” as long as the statute sets the age of consent below
the age of majority—which we conclude to be the age of eighteen under our
method.23 As noted above, Black’s Law Dictionary defines “minor” in terms of

though the definition of “minor” was never at issue in Martinez–Vega. Moreover, it challenges
the Taylor analysis in our prior decision in United States v. Zavala–Sustaita, 214 F.3d 601 (5th
Cir. 2000). In that case, we held that a defendant’s prior conviction under Texas Penal Code
§ 22.11(a)(2), which prohibits “indecency with a child,” qualified as “sexual abuse of a minor”
on the grounds that “‘a child younger than 17 years,’ is clearly a ‘minor.’” Id. at 604. Although
we do not agree that those decisions are insufficient or unsound, our approach provides further
methodological justification and analysis to support the conclusion that the “generic,
contemporary meaning” of the term “minor” is a person under the age of majority.
       23
          We note that our decision harmonizes with many other Guidelines enhancements
involving criminal violence against children that define “minor” as a person under the age of
eighteen. For instance, the § 2L1.2 enhancement provides for an enhancement if a defendant
previously was deported, or unlawfully remained in the United States, after a “child
pornography offense.” U.S.S.G. § 2L1.2(b)(1)(A)(iv). Application Note 1 defines “child
pornography offense” as “(I) an offense described in 18 U.S.C. § 2251, § 2251A, § 2252,
§ 2252A, or § 2260; or (II) an offense under state or local law consisting of conduct that would
have been an offense under any such section if the offense had occurred within the special
maritime and territorial jurisdiction of the United States.” U.S.S.G. § 2L1.2 cmt. n.1(B)(ii).
Federal law defines “minor” as a person under the age of eighteen for the purpose of offenses
defined in § 2251 (“sexual exploitation of children”), § 2251A (“selling or buying of children”),
§ 2252 (“certain activities relating to material involving the sexual exploitation of minors”),
§ 2252A (“certain activities relating to material constituting or containing child pornography”),
and § 2260 (“production of sexually explicit depictions of a minor for importation into the
United States”). Id. § 2256(1). See also, e.g., U.S.S.G. §§ 2A3.1, 2A3.3, 2A3.4 (involving


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a “person who has not reached full legal age.” Black’s Law Dictionary (9th ed.
2009) defines “legal age” as either “age of capacity” or “age of majority,” and
provides that both phrases are usually defined by statute at eighteen years old.
It defines “age of capacity” as “[t]he age, usu. defined by statute as 18 years, at
which a person is legally capable of agreeing to a contract, maintaining a
lawsuit, or the like.” Moreover, it defines “age of majority” as “[t]he age, usu.
defined by statute as 18 years, at which a person attains full legal rights, esp.
civil and political rights such as the right to vote. . . . In almost all states today,
the age of majority is 18, but the age at which a person may legally purchase and
consume alcohol is 21.”24
       We next determine the generic meaning of “statutory rape.”25

criminal sexual abuse); 2A3.5 (registration as a sex offender); 2G1.3 (promoting a commercial
sex act or prohibited sexual conduct); 2G2.1 (sexual exploitation of a minor); 4B1.5 (repeat and
dangerous sex offender against minors); 5D1.2 (supervised release). Similarly, 18 U.S.C. §
3553 outlines special considerations in sentencing defendants convicted of “[c]hild crimes and
sexual offenses,” including under § 1201 (kidnapping) and § 1591 (sex trafficking), both of
which contain provisions specially applicable when the victim is under the age of eighteen.
See 18 U.S.C. §§ 1201(g), 1591(a), 3553(b)(2)(A).
       24
          We also observe that this plain-meaning approach is consistent with the approach
of the U.S. Sentencing Commission, which broadly defines various sentencing enhancements
involving sexual crimes against minors to include persons under the age of eighteen. In 2000,
for instance, the Commission amended multiple enhancements in U.S.S.G. §§ 2A3 and 2G1
involving sexual abuse of children pursuant to a congressional directive in the Protection of
Children from Sexual Predators Act of 1998, Pub. L. 105–314 (“the Act”). U.S.S.G. App. C.,
Amend. 592. The Act directed the Commission to review the Sentencing Guidelines to create
penalties for various federal sexual offenses involving children, some of which defined “minor”
at the age of eighteen. Pub. L. 105–314; see, e.g., 18 U.S.C. § 2422(b) (involving the offense of
“coercion and enticement” and defining the victim as “an individual who has not attained the
age of 18 years”); § 2423(a) (involving the offense of “transportation with intent to engage in
criminal sexual activity” and defining the victim as “an individual who has not attained the
age of 18 years”). In response to this congressional directive, the 2000 Guidelines added
enhancements involving sexual offenses using the specific term “minor,” which the
Commission defined as an “individual who had not attained the age of 18 years.” See U.S.S.G.
App. C., Amend. 592.
       25
         In United States v. Alvarado–Hernandez, 465 F.3d 188, 189–90 (5th Cir. 2006), we
applied our “common-sense approach” to conclude that the defendant’s conviction qualified as
“statutory rape” under § 2L1.2 based on facts in the indictment that the case involved a
fourteen-year-old victim. The panel concurrence criticizes Alvarado–Hernandez for failing to
provide a categorical analysis of why the statute of conviction embodied the “generic,

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Merriam–Webster’s Collegiate Dictionary defines “statutory rape” as “sexual
intercourse with a person who is below the statutory age of consent.”
Merriam–Webster’s Collegiate Dictionary 1220 (11th ed. 2003); accord Webster’s
Third New International Dictionary (defining “statutory rape” as “sexual
intercourse with a female whether willing or unwilling who is below the age
fixed by the applicable statute as the age of consent.”). Black’s Law Dictionary
(9th ed. 2009) defines “statutory rape” as “[u]nlawful sexual intercourse with a
person under the age of consent (as defined by statute), regardless of whether it
is against that person’s will.” (Emphasis added). These definitions do not set a
uniform definition of the age of consent at sixteen. Moreover, the Black’s Law
Dictionary definition states explicitly that the age of consent for the purposes of
statutory rape is to be defined by statute.26 For these reasons, we conclude that
the “generic, contemporary meaning” of “statutory rape” sets the age of consent
as a person under the age of majority as defined by statute.27

contemporary meaning” of “statutory rape.” See Rodriguez, 698 F.3d at 223–24, vacated by
701 F.3d 1080 (granting rehearing en banc). As explained previously, we are skeptical that
Taylor and its progeny lead to reasonable results if lower courts must disregard facts that
show that the defendant’s conduct, in essence, constituted a crime of violence. Rooting the
crime-of-violence determination strictly in the elements of the statute alone has required us
to perform gymnastics when evaluating when a defendant’s prior conviction constitutes a
crime of violence under the Guidelines. Although we do not agree that our holding in
Alvarado–Hernandez is insufficient or unsound, our approach provides further methodological
justification and analysis to support the conclusion that the “generic, contemporary meaning”
of the age of consent for the purposes of “statutory rape” in the § 2L1.2 enhancement is defined
as a person under the age of majority as defined by statute.
       26
          We acknowledge that one possible weakness of relying on the plain language of the
Black’s Law Dictionary definition of “statutory rape” is that it could conceivably result in the
application of the § 2L1.2 enhancement to a prior conviction based on an outlier statute that
sets the age of consent above the age of majority. At the present, this is only a hypothetical
given that no jurisdiction currently sets the age of consent above the age of eighteen for the
purposes of statutory rape (or its equivalent). See Lopez–DeLeon, 513 F.3d at 475 n.3
(providing a nationwide survey of each jurisdiction’s statutory rape laws (or its equivalent)
showing that thirty-four jurisdictions set the age of consent at sixteen, six jurisdictions set the
age of consent at seventeen, and eleven jurisdictions set the age of consent at eighteen).
       27
          Although we agree with the Ninth Circuit’s general method in looking to definitions
in legal and other well-accepted dictionaries to define the “generic, contemporary meaning”


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       Finally, we determine whether the elements of Rodriguez’s statute of
conviction comport with the generic meaning of “sexual abuse of a minor” and
“statutory rape.” Rodriguez was convicted of sexual assault of a child under
Texas Penal Code § 22.011(a)(2) after engaging in sexual conduct with a
sixteen-year-old victim when he was nineteen years of age. Section 22.011(a)(2)
punishes any defendant who:
               (2) intentionally or knowingly:
                      (A) causes the penetration of the anus or sexual
                            organ of a child by any means;
                      (B) causes the penetration of the mouth of a child
                            by the sexual organ of the actor;
                      (C) causes the sexual organ of a child to contact
                            or penetrate the mouth, anus, or sexual
                            organ of another person, including the
                            actor;
                      (D) causes the anus of a child to contact the
                            mouth, anus, or sexual organ of another
                            person, including the actor; or
                      (E) causes the mouth of a child to contact the
                            anus or sexual organ of another person,
                            including the actor.

of “statutory rape,” we disagree with its particular application of those definitions. In United
States v. Rodriguez–Guzman, the Ninth Circuit relied on Black’s Law Dictionary’s definition
of “age of consent” to conclude that the “generic, contemporary meaning” of “minor” in the
context of statutory rape is a person under the age of sixteen. 506 F.3d 738, 746–47 (9th Cir.
2007). Black’s Law Dictionary (9th ed. 2009) defines “age of consent” as “[t]he age, usu.
defined by statute at 16 years, at which a person is legally capable of agreeing to marriage
(without parental consent) or to sexual intercourse.” We reject the Ninth Circuit’s reliance on
this definition of “age of consent” because the Black’s Law Dictionary definition of “statutory
rape” states explicitly that the age of consent in the specific context of statutory rape is to be
defined by statute. Black’s Law Dictionary’s definition of “age of consent” encompasses
contexts that are inapposite to sexual intercourse, such as marriage. We conclude that it is
improper to rely on this broader definition when the plain language of the definition of
“statutory rape” provides for a narrower meaning of “age of consent.” We also note that the
Model Penal Code explicitly highlights variability in the age of consent and the need to look
to the statute at issue to determine its value. See MODEL PENAL CODE § 213.3(1). It provides,
generally, for victims less than sixteen years old, but allows for victims of less than twenty-one
years old in the case in which the defendant is “his guardian or otherwise responsible for
general supervision of his welfare,” and places no age maximum in other circumstances. Id.
We note finally that it also disclaims any notion of a pre-existing “generic” single statutory
rape scheme. See § 213.1 explanatory note.


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TEX. PENAL CODE § 22.011(a)(2). The Texas statute defines “child” as “a person
younger than 17 years of age.” Id. at § 22.011(c)(1).
       Rodriguez does not challenge that these elements comport with the
“generic, contemporary meaning” of “sexual” or “abuse.” Rather, he argues that
the Texas statute is broader than the generic meaning of “sexual abuse of a
minor” and “statutory rape” because it defines “child” at the age of seventeen,
not sixteen. We disagree. For the reasons explained above, the “generic,
contemporary meaning” of “minor” in the “sexual abuse of a minor” category
under § 2L1.2 is a person under the age of majority.28 Moreover, the age of
consent for the purposes of “statutory rape” in § 2L1.2 is the age of consent as
defined by statute. In defining “child” at seventeen, the Texas statute comports
with both of these generic meanings.
       Therefore, we conclude that it was not error for the district court to impose
a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a crime
of violence based on Rodriguez’s prior conviction for sexual assault of a child
under Texas Penal Code § 22.011(a)(2).
                                    III. Conclusion
       For the foregoing reasons, Rodriguez’s sentence is AFFIRMED.

       28
          As explained previously, Rodriguez also claims that the offense defined in Texas
Penal Code § 22.011(a)(2) is broader than the “generic, contemporary meaning” of “sexual
abuse of a minor” because the statute requires a three-year, as opposed to a four-year, age
differential between the victim and the defendant. We reject this argument because the
definitions of “sexual abuse of a minor” in legal and other well-accepted dictionaries do not
include such an age-differential requirement.




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OWEN, Circuit Judge, joined by JONES, Circuit Judge, concurring:
       I concur in the judgment. My concern with the court’s opinion is its
exclusive reliance on dictionaries in determining the meaning of “sexual abuse
of a minor” and “statutory rape.” While dictionaries certainly may be consulted,
it is difficult to see why they should be controlling. I respectfully submit that we
should attempt to divine what the Sentencing Commission meant when it used
the terms at issue in § 2L1.2 by considering the evolution of this section of the
Guidelines.
                                               I
       The United States Sentencing Commission, courts, attorneys, and
probation officers have struggled with the meaning of “a crime of violence” as
used in the Sentencing Guidelines, particularly with which crimes of a sexual
nature constitute “a crime of violence.”1 Currently, under § 2L1.2(b)(1)(A), the
base offense level is to be increased by 16 levels if a prior conviction for “a crime
of violence” receives criminal history points or by 12 levels if that prior
conviction does not receive criminal history points.2                 By contrast, a prior
conviction for “an aggravated felony” results in an 8 level increase, and a prior
conviction “for any other felony” results in a 4 level increase.3 Accordingly,
whether a prior conviction is for “a crime of violence” can significantly affect the
calculation of the advisory sentencing range.

       1
         See U.S. SENTENCING GUIDELINES MANUAL app. C at 393 (2003) (stating that changes
to the definition of “crime of violence” were necessary because “[t]he previous definition often
led to confusion over whether the specified offenses listed in that definition, particularly
sexual abuse of a minor and residential burglary, also had to include as an element of the
offense ‘the use, attempted use, or threatened use of physical force against the person of
another’”); U.S. SENTENCING GUIDELINES MANUAL app. C supp. at 296 (2008) (explaining that
additional amendments to the definition of “crime of violence” were made with “input the
Commission has received from federal judges, prosecutors, defense attorneys, and probation
officers at several roundtable discussions and public hearings on the operation of § 2L1.2”).
       2
           U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A) (2012).
       3
           Id. § 2L1.2(b)(1)(C), (D).



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       In this case, we must decide whether Rodriguez’s prior conviction under
Texas law for sexual contact with a sixteen-year-old female when Rodriguez was
more than three years older than the victim constituted either “sexual abuse of
a minor” or “statutory rape” with the meaning of § 2L1.2 of the Guidelines. I
respectfully submit that amendments to the Sentencing Guidelines over the
years indicate that the Commission has not intended for courts to apply the
“categorical approach” as an exacting template for discerning what constitutes
“forcible sex offenses,” “statutory rape,” or “sexual abuse of a minor,” each of
which is an enumerated offense in the definition of “crime of violence” in
§ 2L1.2.4
       The Sentencing Guidelines have long included “forcible sex offenses”
among the enumerated offenses that constitute a “crime of violence.”5 The term
“forcible sex offenses” describes a broad range of offenses, unlike more specific
enumerated crimes, such as murder or manslaughter. “[F]orcible sex offenses”
includes a variety of conduct criminalized under state and federal law that is not
as conducive to categorical analysis as more narrowly defined offenses, such as
rape. It also seems that “forcible sexual offenses” would connote only those sex
crimes that involve force if the words “forcible sex offenses” were given their
plain meaning. But the assumption that “forcible sex offenses” must include the
use of force was undermined when, in 2001, the Commission amended § 2L1.2
to include “sexual abuse of a minor” as a parenthetical explanation of “forcible
sex offenses.”6        Then, in 2003, the Commission amended the Guidelines to
include “statutory rape” as an enumerated offense under the definition of “crime

       4
           Id. § 2L1.2 cmt n. 1(B)(iii).
       5
          U.S. SENTENCING GUIDELINES § 2L1.2 cmt. n. 1(B)(ii) (2001). Prior to the 2001
amendments, the term “crime of violence” was defined by reference to § 4B1.2, which included
“forcible sex offenses.” U.S. SENTENCING GUIDELINES MANUAL §§ 2L1.2 cmt. n. 1, 4B1.2 cmt.
n. 1 (2000).
       6
           U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(ii) (2001).


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of violence.”7 In that same amendment, “sexual abuse of a minor” was removed
from a parenthetical example of a forcible sex offense and became part of the
listed offenses among those in the definition of “crime of violence.”8              The
commentary to the 2003 amendments explained that,
      [t]he previous definition often led to confusion over whether the specified
      offenses listed in that definition, particularly sexual abuse of a minor and
      residential burglary, also had to include as an element of the offense “the
      use, attempted use, or threatened use of physical force against the person
      of another.” The amended definition makes clear that the enumerated
      offenses 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.9
      These amendments did not directly tell courts whether they should apply
the “categorical approach,” described and applied by the Supreme Court in
construing a provision of the Armed Career Criminal Act10 in the seminal
decision, Taylor v. United States.11 But the difficulties encountered by the
Commission in conveying the intended meaning of “forcible sex offenses” and
“sexual abuse of a minor” do indicate that the Commission has had in mind a
range of diverse conduct, defying precise definition, when it has attempted to set
forth the sex crimes that constitute a “crime of violence.” Generic descriptions
such as “sexual abuse of a minor” do not readily lend themselves to the
distillation of essential elements that is the goal of a “categorical” approach.
      The Commission’s explanation for further amendments to the definition
of “crime of violence” in §2L1.2 seems, at least to me, to reveal more directly the
Commission’s view of how the enumerated sex offenses are to be identified under

      7
          U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii) (2003).
      8
          Id.
      9
          Id. app. C at 393.
      10
           18 U.S.C. § 924(e).
      11
           495 U.S. 597 (1990).


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the Guidelines. Those amendments eschew an approach that would seek a
“majority” view of how a broad category of offenses, such as “sexual abuse of a
minor,” is defined or its indispensable elements.                     In the latest of the
amendments to the definition of “[c]rime of violence” in § 2L1.2, the Commission
added a parenthetical after “forcible sex offenses,” which says “(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).”12 The addition of this
parenthetical was in direct response to opinions from this court.                          The
commentary to the 2008 amendments of § 2L1.2 expressly declared that the
results in three cases from this circuit were contrary to what the Commission
intended.13 Rather than paraphrase the Commission, the pertinent explanation
for the most recent amendments to § 2L2.1 is set forth in the margin.14 The

      12
           The definition of “crime of violence” is now as follows:

      (iii) “Crime of violence” means 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. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii) (2012).
      13
           U.S. SENTENCING GUIDELINES MANUAL app. C supp. at 296 (2008).
      14
           The pertinent reasoning is as follows:

      Reason for Amendment: This amendment addresses certain discrete issues
      that have arisen in the application of § 2L1.2 (Unlawfully Entering or
      Remaining in the United States). The amendment reflects input the
      Commission has received from federal judges, prosecutors, defense attorneys,
      and probation officers at several roundtable discussions and public hearings on
      the operation of § 2L1.2.

      First, the amendment clarifies the scope of the term “forcible sex offense” as
      that term is used in the definition of “crime of violence” in § 2L1.2, Application
      Note 1(B)(iii). The amendment provides that the term “forcible sex offense”

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discussion of our court’s decision in United States v. Luciano-Rodriguez15 is
particularly instructive. Bear in mind that a “crime of violence” as used in
§ 2L1.2 now expressly includes “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).”16 Under Taylor’s categorical
approach, we would presumably find the meaning of this “enumerated offense”
by searching federal and state statutes, treatises, and dictionaries to determine
the “majority” view of the essential elements. Crimes prohibiting conduct that
a majority of jurisdictions do not criminalize would not be included within

        includes crimes “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.”
        The 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,” USSC, Guideline Manual, Supplement to Appendix C, Amendment
        658. Application of the amendment, therefore, would result in an outcome that
        is contrary to cases excluding crimes in which “there may be assent in fact but
        no legally valid consent” from the scope of “forcible sex offenses.” See, e.g.,
        United States v. Gomez-Gomez, 493 F.3d 562, 567 (5th Cir. 2007) (holding that
        a rape conviction was not a forcible sex offense because it could have been based
        on assent given in response to a threat “to reveal embarrassing secrets” or after
        “an employer threatened to fire a subordinate”); United States v.
        Luciano-Rodriguez, 442 F.3d 320, 322–23 (5th Cir. 2006) (holding that a
        conviction for a sexual assault was nota f orcible sex offense because it could
        have been based on assent when “the actor knows that as a result of mental
        disease or defect the other person is at the time of the sexual assault incapable
        either of appraising the nature of the act or of resisting it,” when “the actor is
        a public servant who coerces the other person to submit or participate,” or when
        “the actor is a member of the clergy or is a mental health service provider who
        exploits the emotional dependency engendered by their position”); United States
        v. Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004) (holding that a conviction
        for sexual assault was not a forcible sex offense because it could have been
        based on assent that is “the product of deception or a judgment impaired by
        intoxication”).

Id.
        15
             442 F.3d 320, 322-23 (5th Cir. 2006).
        16
             U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii) (2012).



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“forcible sex offenses” or the parenthetical description of such crimes. However,
a majority of jurisdictions does not criminalize sexual assault that results “when
‘the actor is a member of the clergy or is a mental health service provider who
exploits the emotional dependency engendered by their position.’”17 Yet, the
Commission has unequivocally explained in its commentary that it intends for
such sexual assault convictions under Texas law to be included within the
meaning of “forcible sex offenses” and the accompanying parenthetical
explanation and therefore that such an assault constitutes a “crime of
violence.”18 Applying the categorical approach would not yield the result that the
Commission has expressly said it intends.
      What, then, should this tell us about how the Commission intended courts
to construe “sexual abuse of a minor” and “statutory rape”? I agree with the
court’s opinion today that we should apply a common-sense approach when
interpreting these terms. Sexual abuse of a minor and statutory rape are
defined differently in different states. But the terms used by the Commission
encompass a broad range of conduct and were not intended to exclude what is
commonly understand to constitute sexual abuse of a minor or statutory rape.
The Texas statute under which Rodriguez was convicted19 defines conduct that
all would agree would be sexual abuse if a minor is the victim. Similarly,
statutory rape is a commonly understood concept. The only issue is whether a
sixteen-year old female who had sexual contact with a male more than three
years older than she is a “minor” or can be a statutory rape victim for purposes
of the Guidelines.
      I agree with the court’s opinion today that the Commission did not intend
for courts to survey the various state laws to find and adopt the majority view

      17
           Luciano-Rodriguez, 442 F.3d at 322.
      18
           U.S. SENTENCING GUIDELINES MANUAL app. C supp. at 296 (2008).
      19
           TEX. PENAL CODE § 22.011(a)(2).


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of “minor” or the majority view of when an age difference may constitute an
affirmative defense to a charge of statutory rape or sexual abuse of a minor.
Statutes that prohibit a nineteen-year-old from having sexual contact (of the sort
specifically described the Texas statute)20 with a sixteen-year-old may not
represent a “majority” view with respect to the specified ages, but the conduct
proscribed, even in light of the ages set forth, is well within commonly
understood parameters of what statutes of this sort criminalize. The conduct
proscribed by the Texas statute is commonly understood to be unlawful, even if
a large number of states specify that the age of the victim must be fifteen or
younger rather than sixteen or younger or that the age differential must be
greater than four years. The precise contours of state laws are just that, a
matter of state law. If the offense is one that is commonly understood to be
sexual abuse of a minor or statutory rape in the generic sense, then it comes
within the Commission’s definition of “crime of violence.” To be clear, I agree
that Rodriguez’s conviction under the Texas statute for either sexual abuse of a
minor or statutory rape is a crime of violence as that term is defined in § 2L1.2.
        I agree with Judge Gruender’s dissenting opinion in United States v.
Viezcas-Soto,21 which said “It seems to me that a definition of ‘statutory rape’

        20
             The statute provides that:

        A person commits an offense if the person . . . intentionally or knowingly

        (A) causes the penetration of the anus or sexual organ of a child by any means;
        (B) causes the penetration of the mouth of a child by the sexual organ of the
        actor;
        (C) causes the sexual organ of a child to contact or penetrate the mouth, anus,
        or sexual organ of another person, including the actor;
        (D) causes the anus of a child to contact the mouth, anus, or sexual organ of
        another person, including the actor; or
        (E) causes the mouth of a child to contact the anus or sexual organ of another
        person, including the actor.
Id.
        21
             562 F.3d 903 (8th Cir. 2009).



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that excludes the statutory rape laws of seventeen states, including the most
populous state in the Union, along with [Texas, New York, Florida, and Illinois],
cannot reasonably be classified as ‘generic.’”22 The Commission presumably
knew when it included the terms “sexual abuse of a minor” and “statutory rape”
in § 2L1.2 that states do not uniformly define offenses that would fall within
these broad descriptions of offenses and that the age of a “minor” differs among
states. The Commission did not define “minor” in § 2L1.2, although it did so in
other Guidelines sections. In § 2A3.1, “minor” is defined as “an individual who
had not attained the age of 18 years.”23 In § 2A3.2, “minor” is defined as “an
individual who had not attained the age of 16 years.”24 The choice of the age of
a “minor” is tailored to the offenses covered in these two Guidelines sections.
But § 2L1.2 does not specify the age of a “minor.” If the Commission had
intended § 2L1.2 to exclude prior convictions in which the victim was sixteen
years of age or older, it could easily have said so. It did not. We should accept
the commonly understood usage of the terms “sexual abuse of a minor” and
“statutory rape” when the prior conviction was obtained under a state law whose
definition of a “minor” is widely accepted, even though a particular state did not
choose the same age of “minority” that a “majority” of states has chosen.
                                               II
      I am perplexed, for two reasons, by the court’s decision to rely solely on
dictionary definitions of the term “minor.” The first is that courts are just as
capable as the authors of dictionaries of determining how statutes “usually”
define “minor.” The second is that there are inconsistencies in how the court
applies the dictionary definitions.
      With great respect to the authors of legal dictionaries such as Black’s, why

      22
           Viezcas-Soto, 562 F.3d at 914 (Gruender, J., dissenting).
      23
           U.S. SENTENCING GUIDELINES MANUAL § 2A3.1 cmt. n. 1 (2012).
      24
           Id. § 2A3.2 cmt. n. 1.


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should the court accept at face value the assertions in dictionaries that a
“minor,” for some purposes, is “usually” a person under the age of eighteen?
Presumably the authors arrive at a definition by surveying the way in which
terms are actually used in their relevant legal contexts, a task that this court is
able to undertake itself. Furthermore, dictionary entries are, by their very
nature, broad and tend to encompass all uses of a word or phrase. Dictionary
definitions may be a useful starting point for determining what the Commission
meant in using specific terms to describe an enumerated offense, but given the
potentially significant consequences for a criminal defendant, we should not
delegate the interpretation of terms used in a sentencing enhancement entirely
to lexicographers.
      Second, the court does not appear to adhere to its own commitment to the
supremacy of dictionary definitions. The court adopts an age of consent of
eighteen by reference to Black’s definition of “statutory rape” while rejecting that
same dictionary’s statement that the “age of consent” to sexual intercourse is
“usually” defined by statute at sixteen years.25
                                        ***
      I concur in the judgment.

      25
           Ante at 24-25 & n.23.




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HAYNES, Circuit Judge, concurring in the judgment only:
      I concur in the court’s judgment only. The majority opinion provides a fair
view of the meaning of the word “minor.” Because Rodriguez does not challenge
the “generic, contemporary meaning” of the phrase “sexual abuse,” the majority
opinion properly does not opine on the complex questions related to that matter.
See Maj. Op. at 10 n.9; Graves Conc. Op. at 9.
      I write separately because this case highlights the need for the Sentencing
Commission to define “sexual abuse of a minor”—a crime with few common-law
analogs. Against the backdrop of a patchwork of state laws on the subject, this
guideline is singularly unhelpful. Other guidelines, such as the immediately
preceding one, expressly define “minor.” See U.S.S.G. § 2L1.1 cmt. n.1. Notably,
those definitions vary from guideline to guideline. Compare id. (defining “minor”
as someone under 16), with Maj. Op. at 12 n.11 (citing guidelines that define
“minor” as someone under 18). The guideline controlling here, however, is silent
on that important subject—as well as on the meaning of “abuse”—despite
categorizing as “crimes of violence” state-law offenses that depend explicitly on
age and that encompass greatly varied conduct. See U.S.S.G. § 2L1.2(b)(1)(A)(ii)
& cmt n.1(B)(iii). We thus are left to puzzle over nebulous terms that can mean
different things in different contexts, a result that frustrates our ability to
provide even-handed treatment to similarly-situated, but geographically-diverse,
defendants. See, e.g., Taylor v. United States, 495 U.S. 575, 590-92 (1990)
(discussing need for federal sentencing uniformity).
      The Texas indecency-with-a-child statute exemplifies the problems with
having such federal definitional voids. See Texas Penal Code § 21.11(a); United
States v. Najera-Najera, 519 F.3d 509 (5th Cir. 2008); United States v. Zavala-
Sustaita, 214 F.3d 601 (5th Cir. 2000). That statute proscribes everything from

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otherwise consensual “petting” between teenagers to heinous acts of sexual
exploitation.1 Which of these should constitute “sexual abuse of a minor,” and
thus a “crime of violence,” under § 2L1.2?
       The guideline gives no “guidance,” and the majority opinion leaves the
issue for another day. A common-sense, “plain-meaning” understanding of
“abuse” would make one think only the latter. Our precedents, however, have
treated both equally. See Najera-Najera, 519 F.3d at 511-12 (holding that
section 21.11(a)(1) prohibits conduct constituting “sexual abuse of a minor”);
Zavala-Sustaita, 214 F.3d at 604-08 (same, for section 21.11(a)(2)).
       As the Texas statute demonstrates, myriad offenses could fall under the
broad rubric of “sexual abuse of a minor.” The states, of course, are free to
criminalize a broad range of “sexual” conduct so long as they stay within federal
constitutional bounds. But in deciding the propriety of a federal sentencing
enhancement—a uniquely federal question—we must seek clarity and uniform
treatment of similarly-situated defendants.2 The problem presented here is that,
because of the vast array of conduct that could be “sexual abuse of a minor,” “one
size does not fit all.” Although a sixteen-level enhancement is too low for some
of the more vile cases we see in this area, it is too high for others.
       I recognize that district judges, like the highly-skilled judge here, can vary
or depart from the Guidelines to capture case-specific nuances. The problem,

       1
        The statute prohibits, among other things, engaging in “sexual contact” with a “child,”
defined as a person under the age of seventeen, although it provides an affirmative defense
to those who are “not more than three years older than the victim and of the opposite sex.”
Texas Penal Code § 21.11(a), (b)(1). “Sexual contact” extends to “any touching . . . , including
touching through clothing, of the anus, breast, or any part of the genitals of a child,” when
done with the “intent to arouse or gratify the sexual desire of any person.” Id. §
21.11(c)(1)(emphasis added).
       2
         We must also remember that federal sentencing is not an opportunity to resentence
the defendant for a state crime. The state has already meted out a punishment it thought
appropriate. Here, the Texas court sentenced Rodriguez to two years of imprisonment. The
offense of conviction in federal court was illegal reentry, not a sexual crime.


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however, remains that such conscientious jurists still must consider the
Guidelines and their blunderbuss approach to this issue.         See 18 U.S.C.
3553(a)(4). The district judge here clearly was troubled by that very point. This
particular portion of this guideline needs defining or refining. I urge the
Sentencing Commission to address this matter definitively.




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JAMES E. GRAVES, JR., Circuit Judge, concurring in part and concurring in
the judgment:
       I concur in the approach adopted by the majority to determine the generic
definition of an enumerated Guidelines offense when that offense is not defined
at common law. I also concur in the majority’s conclusion that the term “minor,”
as used in “sexual abuse of a minor,” means a person under the age of 18.
However, because I am convinced that “statutory rape” is an offense defined at
common law, I would find the majority’s “common usage” approach inapplicable
in determining its generic definition. Rather, I would hold that, consistent with
our precedent, traditional common law offenses must be defined according to the
method used in Taylor v. United States, 495 U.S. 575 (1990), by considering the
majority of state criminal codes, the Model Penal Code, treatises, and other
sources to derive a majority approach. Using this approach, I would conclude
that the generic definition of “statutory rape” includes an age of consent of 16
years. Finally, even under the “common usage” approach, I would conclude that
the generic definition of “statutory rape” includes an age of consent of 16 years.
The majority’s definition of “statutory rape” is fundamentally flawed because it
depends on state law and is therefore not uniform.
       Because Rodriguez’s challenge to the definition of the term “minor” fails,
he has not shown that the district court erred in determining that his prior
conviction under Texas Penal Code § 22.011(a)(2) constitutes “sexual abuse of a
minor” and applying a 16-level “crime of violence” enhancement under § 2L1.2.
Accordingly, I concur in the judgment of the court.
I.     “Statutory rape” as a common law offense
       The majority’s adoption of a “common usage” approach for defining
enumerated offenses that are undefined at common law is a sensible solution to
an intractable problem that has divided and confused federal courts.
Unfortunately, the majority negates many of the benefits of such an approach

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by adopting a needlessly complex method for determining whether an offense is
“defined at common law.” Although the crime of statutory rape has existed for
over seven hundred years in England, the majority holds that it is not a common
law crime because it was created by statute rather than by judges, and because
it has no mens rea requirement.           These distinctions, in addition to being
problematic for other reasons, do not further the central goal of distinguishing
offenses that have no well-known, traditional definition and therefore cannot be
defined according to the method used in Taylor. I would hold that any offense
recognized under English law prior to 1607 – when the first English colonies
were established in America – is a “common law” offense.
       First, it is not even clear that statutory rape was initially created by
statute. The earliest reference to statutory rape I have found is in the 1275
Statute of Westminster (3 Edw. 1, c. 13), which provides: “And the King
prohibiteth that none do ravish, nor take away by Force, any Maiden within Age
(neither by her own Consent, nor without) nor any Wife or Maiden of full Age,
nor any Woman against her Will.”1 Some early statutes, such as the 1275
Statute of Westminster, were seen as largely codifying preexisting common law
rather than creating new law. Indeed, forcible rape, which the majority correctly
recognizes as a common law crime, is listed in the same sentence as statutory
rape in the above statute. This does not mean that it was created by statute;
rather, the more plausible inference is that both forcible rape and statutory rape
were both prohibited by the common law even before the 1275 Statute of
Westminster.
       Second, a distinction between judge-created crimes and crimes created by
early statute is unworkable. As the discussions in Blackstone’s Commentaries

       1
        According to Sir Edward Coke, the words “within age” meant below the age of consent
to marriage, which was 12 years. See Mortimer Levine, A More than Ordinary Case of “Rape,”
13 and 14 Elizabeth I, 7 Am. J. Legal Hist. 159, 162-63 (1963).


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demonstrate, many traditional offenses have been shaped over time by the
interplay of court decisions and statutes. For example, among the various types
of homicides “committed for the advancement of public justice,” Blackstone lists
those set forth in statutes as well as in court opinions.         See Blackstone,
Commentaries *179-80. Similarly, in the discussion of burglary, Blackstone
notes that “[t]he entry may be before the breaking, as well as after: for by statute
12 Ann. c. 7. if a person enters into or is within, the dwelling house of another,
without breaking in, either by day or by night, with intent to commit felony, and
shall in the night break of the same, this is declared to be burglary.” Id. at *227.
Blackstone further describes the ways in which the crime of rape had been
modified by statutes, and describes statutory rape as a type of rape. Id. at *211-
12.
        There is simply no justifiable reason for wading through early English law
and attempting to disentangle the judge-created aspects of traditional crimes
from the statute-created aspects. In explaining the rationale for adopting the
“common usage” approach for non-traditional offenses, the majority explains
that “it is difficult, if not impossible, to identify an accurate set of discrete
elements that define modern, non-traditional offense categories when those
categories do not have a generic structure that is rooted in common law.” First,
a crime that is over four hundred years old is hardly “modern” or “non-
traditional.” More importantly, it is not generally more difficult to identify a
discrete set of elements for traditional offenses with a statutory origin; if
anything, it is probably easier.
        The majority relies heavily on a discussion in Professor LaFave’s treatise
but misunderstands its import. Under the heading: “What the Common Law of
Crimes Encompasses in States Retaining Common Law Crimes,” Professor
LaFave answers the question: “How does a court determine something [a]
defendant has done amounts to a common law crime?” See Wayne R. LaFave,

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Criminal Law, 2.1(e) (2012). Professor LaFave notes that a “generally used
technique . . . is to look at books by recognized writers on English crimes,
especially Blackstone, to determine the existence and definition of a common law
crime.” Id. The majority misinterprets this as a direction to look at whether
sources such as Blackstone describe a crime as created through common law, as
opposed to statute.        However, as the cases cited to illustrate this point
demonstrate, courts have not looked to sources such as Blackstone to distinguish
common law crimes from non-common law crimes – they have looked to such
sources to determine whether some particular conduct is described as criminal.
See id. n.67. No case cited by Professor LaFave or by the majority has parsed
sources such as Blackstone to determine whether a crime is described as
statutorily created. To clarify any potential confusion, Professor LaFave’s
treatise states in the same section that “[a]n English criminal statute enacted
before 1607, if applicable to our conditions, becomes part of our American law.”
Wayne R. LaFave, Criminal Law, 2.1(e) (2012).
       The majority also holds that statutory rape is not a common law offense
because it lacks a mens rea requirement.2 However, it is not clear what the
majority means by the term “statutory rape,” and how it has determined that
this offense lacks a mens rea requirement. Certainly the common dictionary
definition of “statutory rape” does not say anything about the presence or
absence of a mens rea requirement. If the majority is referring to the traditional,
common law understanding of statutory rape, this only underscores the point
that such a traditional definition exists and can be used as the baseline for a

       2
         The Ninth Circuit, which held that statutory rape is not a “traditional” common law
offense because it lacks a mens rea requirement, at least acknowledged that statutory rape is
a common law offense. United States v. Gomez-Mendez, 486 F.3d 599, 602 n.4 (9th Cir. 2007);
United States v. Brooks, 841 F.2d 268, 269 (9th Cir. 1988) (per curiam) (“Despite its statutory
heritage, the offense [of statutory rape] is generally considered an extension of the common
law crime of forcible rape and is itself old enough to be a part of the common law of this
country.”) (emphasis added).

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Taylor analysis. If the majority is referring to the dominant contemporary state
law definition, or perhaps something else, this only raises further questions and
creates additional complexity. The majority seemingly holds that we must first
define the elements of an offense (at least partially) in order to determine the
standard that will be used to define the offense, and provides no guidance on
how such a pre-definition should be determined. This is counterintuitive and
convoluted, and does not provide a workable standard that can be applied by
courts within our circuit.
        Because I conclude that “statutory rape” is an offense defined at common
law and therefore “traditional,” I would find the majority’s “common usage”
approach inapplicable.
II.     Defining “statutory rape” using the Taylor majority-based
approach

        As the majority notes, most states do not use the label “statutory rape” in
their criminal codes. This presents no problem, as we are concerned with the
“basic elements” of an offense rather than the “exact definition or label” given by
a state. Taylor, 495 U.S. at 599. More difficulty is presented by the variation
among state laws on factors such as the age of consent, the mens rea
requirement, the requisite age difference between the perpetrator and the
victim, the sexes of the perpetrator and the victim, and the range of sexual
conduct prohibited.        Nevertheless, these difficulties are by no means
insurmountable.        Following the guidance of Taylor, courts should use the
traditional common law definition of an offense as a baseline and diverge from
this definition only when a clear majority of states have done so.
        In this case, we need only determine the age of consent in the generic
definition of “statutory rape.” As this court found in United States v. Lopez-
DeLeon, 513 F.3d 472, 474 (5th Cir. 2008), thirty-four states (including the


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District of Columbia) – two thirds – set the age of consent at sixteen. Both the
Model Penal Code and the federal equivalent of statutory rape, 18 U.S.C.
§ 2243(a), likewise set the age of consent at sixteen. Id. at 474-75. Black’s Law
Dictionary states that the age of consent is “usually defined by statute as 16
years.” Id. at 475; Black’s Law Dictionary 70 (9th ed. 2009). Based on this data,
I agree with Lopez-DeLeon’s conclusion that the age of consent in the generic
definition of “statutory rape” is 16 years.
III.     Defining “statutory rape” using the “common usage” approach
         Even assuming “statutory rape” is considered to be a “non-traditional”
offense, the majority’s application of the “common usage” approach is deficient
in several ways. Black’s Law Dictionary defines “statutory rape” as “[u]nlawful
sexual intercourse with a person under the age of consent (as defined by statute),
regardless of whether it is against that person’s will.” Black’s Law Dictionary
1374 (9th ed. 2009). “Age of consent” is defined as “[t]he age, usu[ally] defined
by statute as 16 years, at which a person is legally capable of agreeing to
marriage (without parental consent) or to sexual intercourse.” Id. at 70. The
majority ignores the clear statement that “age of consent” is usually defined as
16 years, instead focusing on the statement that the age of consent for purposes
of statutory rape is “defined by statute.” Based on this language, the majority
effectively holds that there is no uniform, generic definition of “statutory rape”
– that “statutory rape” means unlawful sexual intercourse with a person below
whatever age of consent a state chooses to define.
         First, this analysis is incongruous with the majority’s own analysis of the
term “minor.” As the majority recognizes, Black’s Law Dictionary defines a
“minor” as “[a] person who has not reached full legal age.”           Black’s Law
Dictionary 1086 (9th ed. 2009). “Legal age” refers to either “age of capacity” or
“age of majority.” Id. at 70. “Age of capacity” is defined as “[t]he age, usu[ally]
defined by statute as 18 years, at which a person is legally capable of agreeing

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to a contract, maintaining a lawsuit, or the like.” Id. (emphasis added). “Age of
majority” is defined as “[t]he age, usu[ally] defined by statute as 18 years, at
which a person attains full legal rights, esp. civil and political rights such as the
right to vote.” Id. (emphasis added). The dictionary further states that “[i]n
almost all states today, the age of majority is 18.” Id. (emphasis added).
      Under the majority’s analysis, if “minor” were defined as “a person who
has not reached full legal age (as defined by statute),” its conclusion would be
different – that “minor” means a person below whatever age a state defines as
“full legal age.” It is unreasonable to allow that so much depends on this
parenthetical. As noted above, “full legal age” generally means either “age of
capacity” or “age of majority.” Moreover, the definitions provided above further
state that both “age of capacity” and “age of majority” are usually defined by
statute, and that the age of majority is not 18 in every state. The only real
difference is that “legal age” is “usually defined by statute,” whereas “age of
consent” is “defined by statute.” Surely the word “usually” should not lead to
such a stark difference in interpretation.
      Second, and more fundamentally, the majority’s definition of “statutory
rape” is anything but “uniform.” Instead, the elements of “statutory rape” would
vary from state to state based on state law. As the majority itself recognizes,
Taylor instructs us to determine a “uniform definition” for an enumerated
enhancement offense. The Supreme Court in Taylor found it “implausible that
Congress intended the meaning of ‘burglary’ for purposes of § 924(e) to depend
on the definition adopted by the State of conviction.” Taylor v. United States,
495 U.S. 575, 590 (1990). Here, there is likewise no reason to believe that either
Congress or the Sentencing Commission intended for the definition of “statutory
rape” in the § 2L1.2 “crime of violence” enhancement to depend on the definition
adopted by each state.
      Such a definition fits awkwardly into the four-step analysis adopted by the

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majority. Under this analysis, the third step is to derive the generic meaning of
an offense and the fourth step is to “look to the elements of the state statute of
conviction and evaluate whether those elements comport with the generic
meaning of the enumerated offense category.” The generic definition derived in
the third step is to be the yardstick by which the state statute is measured.
However, the majority has crafted a yardstick that varies according to what is
being measured.3
         As the majority states, the “common usage” of “statutory rape” denotes
sexual intercourse with a person under the age of consent. If we are to derive
a generic definition of “statutory rape,” we cannot avoid defining this age of
consent in a way that does not depend on state law. I agree with the conclusion
reached by the Ninth Circuit: “While it is true that the age of consent may vary
according to individual state statutes, the ‘usual’ definition is sixteen years old.”
United States v. Rodriguez-Guzman, 506 F.3d 738, 746 (9th Cir. 2007).
IV.      “Sexual abuse of a minor”
         Because Rodriguez takes issue only with the definition of the term
“minor,” the court does not consider the meaning of the terms “sexual” and
“abuse.” Accordingly, the court does not hold that sexual intercourse between
a sixteen-year-old and a nineteen-year-old involving actual consent – which
would be prohibited under Texas Penal Code § 22.011(a)(2) – constitutes “sexual
abuse.” Because I agree with the majority’s analysis rejecting Rodriguez’s
challenge to the definition of the term “minor,” I concur in the judgment of the
court.

         3
         Although a definition based on “common usage” differs in some ways from a Taylor-
type definition that sets forth the elements of a single offense, it can and must still be uniform.
For example, with respect to “sexual abuse of a minor,” the words “sexual,” “abuse,” and
“minor” can be defined according to common usage. Although many different state crimes may
fall into the category because they involve sexually abusive conduct toward a minor, the
definitions of the words remain the same and serve as a fixed yardstick by which to measure
the state offenses.


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DENNIS, Circuit Judge, dissenting:
       I respectfully dissent. I do not believe that the district court’s imposition
of the “crime of violence” sentencing enhancement was permissible under a
proper interpretation of either “statutory rape” or “sexual abuse of a minor”
under the sentencing guidelines.       See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt.
n.1(B)(iii).
                                         I
       First, I disagree with the majority’s novel “plain meaning” approach for
deriving a generic definition of “statutory rape” and the unprecedented
interpretation it adopts. Rather than ascertaining the elements of the generic
predicate offense from the relevant contemporary authorities as the Supreme
Court has instructed, Taylor v. United States, 495 U.S. 575, 598-99 (1990); see
United States v. Lopez-DeLeon, 513 F.3d 472, 474-75 (5th Cir. 2008), it seems to
me that the majority instead turns on its head the notion of a reasonably
uniform, generic federal definition by making age of consent a variable to be
supplied exclusively by state law. The majority asserts that we join “a majority
of circuits” in departing from Taylor and applying a dictionary-only approach to
ascertaining generic, contemporary meaning. Maj. Op. at 12. Notably, however,
the majority fails to cite any case applying such an approach to the “statutory
rape” predicate. See id. at 12-13 & nn.13-15. And no other court has adopted
the unprecedented, variable interpretation of that predicate that the majority
invents today. The majority’s “plain meaning” approach lacks disciplinary
content and cannot help but reduce uniformity and fairness in federal
sentencing. It is not this court’s place to overrule Taylor’s approach to defining
generic predicate offenses under the guidelines.
       “The [Sentencing] Guidelines were enacted to bring uniformity and
predictability to sentencing.’” United States v. Gonzalez-Ramirez, 477 F.3d 310,
313 (5th Cir. 2007) (emphasis added) (quoting United States v. Ashburn, 20 F.3d

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1336, 1347 (5th Cir. 1994)); see also, e.g., Dorsey v. United States, 132 S. Ct.
2321, 2326 (2012) (refusing to adopt an interpretation that “would seriously
undermine basic Federal Sentencing Guidelines objectives such as uniformity”).
Interpreting the generic, categorical meaning of “statutory rape” so as
accommodate any state law definition seems to me to undermine this goal.1 I
believe that the majority errs in elevating generalized notions of “cooperative
federalism” over the concrete need to employ a uniform interpretation of the
predicate guidelines offense. See Maj. Op. at 20.2
       In a persuasive recent opinion by Judge Wilkinson, the Fourth Circuit
applied the established Taylor analysis previously applied by the Ninth Circuit
and a panel of this court and likewise concluded “that the ‘generic, contemporary
meaning’ of statutory rape sets the general age of consent at sixteen years old.”
United States v. Rangel-Castaneda, --- F.3d ----, 2013 WL 829149, at *1 (4th Cir.
Mar. 7, 2013); see Lopez-DeLeon, 513 F.3d at 474-75 (“reviewing the Model Penal
Code (MPC), treatises, modern state codes, and dictionaries” and “conclud[ing]

       1
         See United States v. Rangel-Castaneda, --- F.3d ----, 2013 WL 829149, at *1 (4th Cir.
Mar. 7, 2013) (“[W]e note the importance of achieving some degree of uniformity in applying
the United States Sentencing Guidelines across the nation, particularly with respect to an
element as crucial as the age of consent is for the crime of statutory rape.”); cf. United States
v. Shannon, 110 F.3d 382, 386 (7th Cir. 1997) (“To make the answer to the question whether
felonious sex with a minor is a crime of violence a mechanical function of the laws of the
different states would . . . undermine the guidelines’ goal of bringing about a reasonable
uniformity in federal sentencing; and would treat ‘crime of violence’ as a question of state
rather than federal law.”), abrogated on other grounds by Begay v. United States, 553 U.S. 137
(2008), as explained in United States v. McDonald, 592 F.3d 808, 813-14 (7th Cir. 2010).
       2
         See Rangel-Castaneda, 2013 WL 829149, at *5 (“Our federal system allows the various
states to define offenses as they see fit, unencumbered by overly stringent federal sentencing
standards. That is precisely why ‘minor variations in terminology’ must be respected. Taylor,
495 U.S. at 599. Accordingly, [each state] retains the ability to define the state crime of
statutory rape in the manner it desires. And yet, when it comes to the common meaning of
that offense for federal sentencing enhancement purposes, the gap between an age of consent
of sixteen versus eighteen is simply too consequential to disregard, and the majority of states
adopting the former age is too extensive to reject. Because of the competing concern for
uniformity among sentences imposed by federal courts across the nation, we must accept this
broad consensus as stating the generic definition of statutory rape.”).

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that the ordinary, contemporary, and common meaning of minor, or ‘age of
consent’ for purposes of a statutory rape analysis, is sixteen”); United States v.
Rodriguez-Guzman, 506 F.3d 738, 746 (9th Cir. 2007) (concluding that “[b]ecause
[the same California statutory rape law analyzed in Lopez-DeLeon] establishes
eighteen as the age of consent, it is overly inclusive of the generic federal
definition of statutory rape”). I agree with the reasoning and holding of Rangel-
Castaneda, in which the court explained as follows:
      Employing the “categorical approach” for assessing the applicability
      of enhancements, as articulated in Taylor v. United States, 495 U.S.
      575 (1990), we find that the “generic, contemporary meaning” of
      statutory rape sets the general age of consent at sixteen years old.
      In so holding, we note the importance of achieving some degree of
      uniformity in applying the United States Sentencing Guidelines
      across the nation, particularly with respect to an element as crucial
      as the age of consent is for the crime of statutory rape. Because
      Tennessee’s statutory rape provision sets the age of consent at
      eighteen and is therefore significantly broader than the generic
      offense, we hold that a conviction thereunder does not categorically
      qualify for the crime-of-violence enhancement. . . .
      Because the age of consent is central to the conception of statutory
      rape in every jurisdiction across the country and because the
      contrast between age sixteen and age eighteen is highly
      consequential, the divergence engenders dramatically different
      crimes. In other words, conduct that is perfectly legal for some
      people could subject many others in neighboring states to years
      upon years in federal prison. This, of course, is the sort of unjust
      and “odd result[]” that Taylor intended to preclude by holding that
      enhancement predicates “must have some uniform definition
      independent of the labels employed by the various States’ criminal
      codes.”
Rangel-Castaneda, 2013 WL 829149, at *1, 4.
      I believe that the Fourth Circuit in Rangel-Castaneda applied the correct
method to arrive at the appropriate generic definition.            Accordingly, I
respectfully dissent from the contrary decision of today’s majority to adopt an
interpretation of the “statutory rape” predicate that varies state by state, rather

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than a uniform federal age of consent of sixteen informed by the clear consensus
of modern state criminal codes and other contemporary authorities.3
                                             II
       Second, I do not believe that the crime of violence enhancement may be
affirmed under the alternative heading of “sexual abuse of a minor.” As this
court noted in Lopez-DeLeon, and as the Fourth Circuit similarly observed in
Rangel-Castaneda, the proper focus in a § 2L1.2(b)(1)(A)(ii) “crime of violence”
analysis involving a defendant’s prior conviction of a state “[s]tatutory rape
law[]” — i.e., a law that “define[s] the age below which a person is legally
incapable of consenting to sexual activity,” Lopez-DeLeon, 513 F.3d at 474 — is
whether it constitutes the enumerated guidelines offense of “statutory rape,”
rather than whether it falls within the distinct category of “sexual abuse of a
minor.” See id. at 474 n.2 (“Our determination focuses on the enumerated
offense of ‘statutory rape’ rather than ‘sexual abuse of a minor’ because courts
have recognized that section § 261.5(c) is California’s codification of its statutory
rape statute.”); see also Rangel-Castaneda, 2013 WL 829149, at *3 (“Our analysis
focuses on the particular crime at issue in this case — statutory rape.”); cf. id.
at *6 (“The government does not attempt to defend the district court’s judgment
on the ground that Rangel’s statutory rape conviction qualified as a forcible sex
offense. And for good reason. To begin with, the statutory rape provision in the
crime-of-violence enhancement addresses precisely and specifically the situation
before us.”).
       In Rangel-Castaneda, the government argued that even if the defendant’s
prior conviction under a Tennessee statutory rape law did not fall within the

       3
        See, e.g., Rangel-Castaneda, 2013 WL 829149, at *4 (“[I]n defining what in common
parlance constitutes statutory rape, a robust majority of American jurisdictions — the federal
government, thirty-two states, and the District of Columbia — has set the general age of
consent precisely at sixteen years old.” (citing statutes)).



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generic, contemporary definition of “statutory rape,” nonetheless “the same
sixteen-level crime-of-violence enhancement applies because [the] conviction
qualifies as ‘sexual abuse of a minor.’” Rangel-Castaneda, 2013 WL 829149, at
*6. I believe the Fourth Circuit correctly rejected that argument:
       It is tautological to state that “sexual abuse of a minor” requires
       that the victim be a minor. And while the precise age denoted by
       the word “minor” may vary depending on the legal context, that age
       is sixteen for purposes of this enhancement [because] . . . a large
       majority of jurisdictions sets the age at which an individual is
       legally capable of consenting to sexual relationships at sixteen, as
       discussed above with respect to statutory rape. It would seem
       discordant to hold that the same conduct that is deemed consensual
       for purposes of one qualifying predicate could somehow be deemed
       criminally abusive for purposes of another predicate. Relying on the
       general age of consent for the generic definition of statutory rape
       therefore precludes actions that involve only individuals who are
       above age sixteen from constituting “sexual abuse of a minor.” See
       Estrada–Espinoza v. Mukasey, 546 F.3d 1147, 1152–53 (9th Cir.
       2008) (en banc) (interpreting “sexual abuse of a minor” in 8 U.S.C.
       § 1101(a)(43)(A) to require that the victim be less than sixteen on
       account, inter alia, of the age of consent for the generic definition of
       statutory rape), overruled on other grounds by United States v.
       Aguila–Montes de Oca, 655 F.3d 915, 926–28 (9th Cir. 2011) (en
       banc). We do not attempt to establish a global definition of a “sexual
       abuse of a minor” offense. In other words, rather than set out what
       “sexual abuse of a minor” can mean, we simply note one particular
       thing that it cannot mean.
Id. Here too, one need not define with certainty the contours of the “sexual
abuse of a minor” category to recognize that it cannot include a prior conviction
for statutory rape, at least under a non-generic state statute.4 This view accords

       4
        I do not suggest that “sexual abuse of a minor” categorically excludes convictions
under state sex offenses that have as an element an age threshold above sixteen and also
additional or aggravating elements aside from the victim’s age, such as state laws
criminalizing sexual depradation by a parent on a child. See Rangel-Castaneda, 2013 WL
829149, at *4 n.1 (“In discussing the general age of consent here and elsewhere, we do not
address state code provisions establishing a higher age of consent in specific factual
circumstances, such as where defendants are in positions of authority over their victims.”).


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with the sound interpretive principle that the guidelines definition of “crime of
violence” should not be interpreted so as to render the term “statutory rape”
superfluous.5
       Thus, having concluded that Rodriguez’s conviction does not fall within the
generic, contemporary meaning of “statutory rape,” I would also reject the
government’s attempt to defend the imposition of the enhancement under the
label of “sexual abuse of a minor.”
                                              III
       Finally, I must express my disagreement with certain dicta in the majority
opinion regarding the categorical approach more generally. My colleagues in the
majority are apparently “skeptical that” the categorical approach dictated by
“Taylor and its progeny lead[s] to reasonable results”; they complain that the
Supreme Court’s insistence upon “[r]ooting the crime-of-violence determination
strictly in the elements of the statute alone has required us to perform
gymnastics when evaluating when a defendant’s prior conviction constitutes a
crime-of-violence under the Guidelines.” Maj. Op. at 26 n.22; see also id. at 4 n.2
(asserting that the constraints of “the categorical and modified-categorical
approach in its current form” — whereby we analyze and classify the conviction,
rather than the underlying facts or allegations, result in “confusion and

       5
           We have repeatedly stated “that the Guidelines are subject to rules of statutory
construction and interpretation.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329
(5th Cir. 2012); see United States v. Rayo–Valdez, 302 F.3d 313, 318 (5th Cir. 2002); United
States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989). Thus, “[w]hen interpreting the Guidelines,
‘it is necessary to give meaning to all its words and to render none superfluous.’” Dominguez-
Alvarado, 695 F.3d at 329 (5th Cir. 2012) (quoting Rayo–Valdez, 302 F.3d at 318); see also
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory
construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’” (quoting
Duncan v. Walker, 533 U.S. 167, 174 (2001)). The commentary’s use of the disjunctive
underscores the need to construe the listed categories as bearing distinct meanings. See Reiter
v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that
terms connected by a disjunctive be given separate meanings, unless the context dictates
otherwise[] . . . .”); accord, e.g., United States v. Canada, 110 F.3d 260, 264 (5th Cir. 1997).

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gymnastics”); but see U.S.S.G. 2L1.2(b)(1)(A)(ii) (premising the sentencing
enhancement on “a conviction for a felony that is . . . a crime of violence”
(emphasis added)). I strongly disagree with this sentiment, and I worry that my
colleagues have forgotten that “[a]mong the considerations that led the Taylor
court to conclude that a categorical approach to prior convictions was necessary
were concerns about the practical difficulties and fairness problems that would
arise if courts were permitted to consider the facts behind prior convictions.” See
Arguelles-Olivares v. Mukasey, 526 F.3d 171, 184 (5th Cir. 2008) (citing Taylor,
495 U.S. at 601); Larin-Ulloa v. Gonzalez, 462 F.3d 456, 463 (5th Cir. 2006).
      I do not share the majority’s apparent sense of chafing under the
constraints that follow from taking seriously these concerns. To the contrary,
I believe the rigors of the categorical approach to be both principled and
workable. Taylor made clear that a standard approach to classifying past
convictions is essential to fair and uniform federal sentencing. Taylor, 495 U.S.
at 601-02; see, e.g., Perez-Gonzalez v. Holder, 667 F.3d 622, 629 (5th Cir. 2012)
(Jones, C.J., dissenting) (noting “the benefit of ‘lenity’ inhering in the . . .
categorical approach” and acknowledging that it is appropriate “for the law,
guided by the due process clause and the rule of lenity, to give a criminal
defendant the benefit of the . . . categorical approach for purposes of enhanced
sentencing”). Once again, I find myself in agreement with Judge Wilkinson,
writing for the Fourth Circuit in Rangel-Castaneda, who observed:
      It may be that, although a consensus-based analysis ultimately aids
      the defendant in the case at bar, the approach can cut both ways.
      To wit, if the majority of states subscribes to a broad definition of an
      offense enumerated in a federal sentencing enhancement, a
      defendant convicted in one of those jurisdictions might not be able
      to avoid the enhancement by pointing to a minority view defining
      the offense more narrowly. Be that as it may, our task is to apply
      the Taylor decision in a neutral manner.
Rangel-Castaneda, 2013 WL 829149, at *5.            With all due respect to my


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colleagues, it is not our place to eschew faithful application of the disciplined
analysis required by precedent merely because some may become “skeptical”
when it produces results favorable to criminal defendants.
                                       IV
      For the foregoing reasons, I would vacate Rodriguez’s sentence and
remand for resentencing. Because the court today reaches a contrary result, I
respectfully dissent.




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