     Case: 10-60763    Document: 00512114803     Page: 1   Date Filed: 01/16/2013




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

                                                                  FILED
                                                               January 16, 2013

                                  No. 10-60763                   Lyle W. Cayce
                                                                      Clerk

ESAU RODRIGUEZ, also known as Esau Acosta Rodriguez,

                                            Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent.



                      Petition for Review of an Order of the
                          Board of Immigration Appeals


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Esau Rodriguez, a native and citizen of Mexico, petitions for review of the
decision of the Board of Immigration Appeals (BIA) that he is removable for
having been convicted of an aggravated felony. Because the record does not
establish that Rodriguez was convicted of an aggravated felony, as defined in 8
U.S.C. § 1101(a)(43), we grant his petition and vacate the order of removal.
                                        I
      In 2002, Rodriguez pleaded guilty to violating Texas Penal Code section
22.011 and was placed on deferred adjudication. Rodriguez was placed on
community supervision and, in 2006, pleaded true to violating the terms of that
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                                       No. 10-60763

supervision by drinking intoxicating beverages and failing to remain within Deaf
Smith County, Texas. Rodriguez was adjudicated guilty and sentenced to four
years of imprisonment. In 2010, he was served with a Notice to Appear,
charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii),
asserting that his conviction of the Texas offense of attempted sexual assault
was an aggravated felony.
      The immigration judge (IJ) issued an oral decision finding that Rodriguez
was removable because he had been convicted of an aggravated felony. The IJ
concluded that Rodriguez’s conviction for attempted sexual assault under Texas
Penal Code section 22.011 was a crime of violence as defined in 18 U.S.C. § 16(b)
because the offense presented a substantial risk of the use of physical force
against another. The IJ ordered Rodriguez removed to Mexico.
      The BIA dismissed Rodriguez’s appeal, holding that the “relevant portions”
of section 22.011, which it determined were subsections (a)(1)(A)-(C) and (b),
qualified as a crime of violence under 18 U.S.C. § 16(b) and that Rodriguez’s
offense qualified as an aggravated felony because he was sentenced to more than
one year of imprisonment, rendering him removable.                   Rodriguez timely
petitioned this court for review pursuant to 8 U.S.C. § 1252.
                                             II
      “We must begin by determining whether we have jurisdiction to review the
BIA’s decision,” which we do de novo.1 “Congress has specifically commanded in
8 U.S.C. § 1252(a)(2)(C) that no court has jurisdiction to review deportation
orders for aliens who are removable because they were convicted of aggravated



      1
          Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001).

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                                            No. 10-60763

felonies.”2 We do, however, have jurisdiction to review jurisdictional facts.3
“[W]hether an offense constitutes an aggravated felony is a purely legal”
question, which we review de novo.4
                                                III
      “Any alien who is convicted of an aggravated felony at any time after
admission is deportable.”5 An “aggravated felony” is defined as “murder, rape,
or sexual abuse of a minor” or “a crime of violence (as defined in [18 U.S.C.
§ 16] . . .) for which the term of imprisonment [is] at least one year.”6 Section 16
defines “crime of violence” in pertinent part as an offense “that, by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.”7
      To determine whether an alien’s guilty plea conviction constitutes an
aggravated felony for removal purposes, this court applies the “categorical
approach” adopted in Taylor v. United States.8                   The categorical approach
considers only the statutory definition of the offense of conviction, rather than
the underlying facts of the actual offense, to determine whether the offense




      2
          Id.
      3
          Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000).
      4
          Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008).
      5
          8 U.S.C. § 1227(a)(2)(A)(iii).
      6
          8 U.S.C. § 1101(a)(43)(A), (F).
      7
          18 U.S.C. § 16(b).
      8
          495 U.S. 575 (1990).

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                                         No. 10-60763

meets the definition of an aggravated felony.9 However, “[i]f the statute of
conviction defines multiple offenses, at least one of which does not describe an
aggravated felony, we apply a modified categorical approach.”10 Under the
modified categorical approach, we may examine certain additional documents
in the convicting court’s record to determine whether the guilty plea conviction
“necessarily” fell under a particular subsection of the statute that meets the
aggravated felony criterion.11 The state court documents that may be considered
include the “charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.”12 If these documents are insufficient to establish that the
alien was necessarily convicted of an aggravated felony, the conviction may not
be used as a basis for deportation.13
       At the time of Rodriguez’s conviction, section 22.011 of the Texas Penal
Code read as follows:
       (a) A person commits an offense if the person:

                  (1) intentionally or knowingly:

                        (A) causes the penetration of the anus or female
                        sexual organ of another person by any means,
                        without that person’s consent;


       9
           Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006).
       10
            Id. at 464 (citing Shepard v. United States, 544 U.S. 13, 20-21, 26 (2005)).
       11
            Id.
       12
       Id. (quoting Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005)) (internal quotation
marks omitted).
       13
            Id.

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                            No. 10-60763

             (B) causes the penetration of the mouth of
             another person by the sexual organ of the actor,
             without that person’s consent; or

             (C) causes the sexual organ of another person,
             without that person’s consent, to contact or
             penetrate the mouth, anus, or sexual organ of
             another person, including the actor; or

       (2) intentionally or knowingly:

             (A) causes the penetration of the anus or female
             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.

 (b) A sexual assault under Subsection (a)(1) is without the consent
 of the other person if:

       (1) the actor compels the other person to submit or
       participate by the use of physical force or violence;

       (2) the actor compels the other person to submit or
       participate by threatening to use force or violence
       against the other person, and the other person believes

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                            No. 10-60763

       that the actor has the present ability to execute the
       threat;

       (3) the other person has not consented and the actor
       knows the other person is unconscious or physically
       unable to resist;

       (4) 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;

       (5) the other person has not consented and the actor
       knows the other person is unaware that the sexual
       assault is occurring;

       (6) the actor has intentionally impaired the other
       person’s power to appraise or control the other person’s
       conduct by administering any substance without the
       other person’s knowledge;

       (7) the actor compels the other person to submit or
       participate by threatening to use force or violence
       against any person, and the other person believes that
       the actor has the ability to execute the threat;

       (8) the actor is a public servant who coerces the other
       person to submit or participate;

       (9) the actor is a mental health services provider or a
       health care services provider who causes the other
       person, who is a patient or former patient of the actor,
       to submit or participate by exploiting the other person’s
       emotional dependency on the actor; or

       (10) the actor is a clergyman who causes the other
       person to submit or participate by exploiting the other


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                                      No. 10-60763

               person’s emotional dependency on the clergyman in the
               clergyman’s professional character as spiritual adviser.

      (c) In this section:

               (1) “Child” means a person younger than 17 years of age
               who is not the spouse of the actor.14
      Rodriguez’s indictment charged in count one that Rodriguez “intentionally
or knowingly cause[d] the penetration of the female sexual organ of J.S. by
defendant’s sexual organ, without the consent of J.S.” Count two charged that
he “intentionally or knowingly cause[d] the female sexual organ of J.S. to contact
the defendant’s sexual organ, without the consent of J.S.” The BIA implicitly
held that Rodriguez was convicted under subsection (a)(1) of section 22.011. The
language of the indictment indeed tracks the language of subsections (a)(1)(A)
and (C), specifically noting that the offense was committed “without the consent”
of the victim. The indictment did not charge Rodriguez with sexual assault of
a “child,” which would be an offense under subsection (a)(2). The Government
concedes that in determining whether Rodriguez has been convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), which in turn refers to the
definition of “a crime of violence” under 18 U.S.C. § 16, the indictment and
record in the Texas court confine our consideration to an offense under
section 22.011(a)(1).
      Rodriguez’s “Adjudication of Guilt” states that “[t]he Sex Offender
Registration Requirements . . . do apply to the Defendant. The age of the victim
at the time of the offense was 16 years of age.” However, this statement does not
indicate that the age of the victim was an element of the offense under which


      14
           Tex. Penal Code Ann. § 22.011 (West 2002).

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                                          No. 10-60763

Rodriguez was convicted. Nor is this an “explicit factual finding by the trial
judge to which the defendant assented.”15 Rodriguez did not plead guilty to the
sexual assault of a child.16
       Accordingly, the issue before this court is whether a conviction under
section 22.011(a)(1) of the Texas Penal Code is categorically a crime of violence
under § 16(b), and we must determine “whether the crime inherently involves
a substantial risk that intentional physical force may be used in the commission
of the crime” to answer that question.17 Section 16(b) encompasses crimes that,
while capable of being committed without the use of physical force, always entail
a substantial risk that physical force—defined as “destructive or violent
force”—may be used.18 Rodriguez argues that two of the actions deemed to be
“without consent” in section 22.011(a)(1)—where a mental health worker or
clergyman exploits the emotional dependency of the victim—do not constitute
crimes of violence.19 We agree.
       “[W]hen analyzing the operative phrase ‘substantial risk,’ it is not
necessary that ‘[the risk] must occur in every instance; rather a substantial risk
requires a strong probability that the event, in this case the application of



       15
          Larin-Ulloa, 462 F.3d at 464 (quoting Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir.
2005)) (internal quotation marks omitted).
       16
           See id. (“The use of these documents is permitted because they are considered
sufficiently conclusive and reliable to establish the fact to which the alien actually pleaded
guilty.” (citing Shepard v. United States, 544 U.S. 13, 23 (2005))).
       17
            Id. at 465 (citing Leocal v. Ashcroft, 543 U.S. 1, 10 (2004)).
       18
            Id. (internal quotation marks and citation omitted).
       19
            See Tex. Penal Code Ann. § 22.011(b)(9), (10).

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                                          No. 10-60763

physical force during the commission of the crime, will occur.’”20 Section 16 “has
both criminal and noncriminal applications,” and thus, “the rule of lenity
applies.”21 We therefore are “constrained to interpret any ambiguity in the
statute in [Rodriguez’s] favor.”22
       In Leocal v. Ashcroft,23 the Supreme Court held that a conviction for
driving under the influence (DUI) did not constitute a crime of violence under
§ 16(b). The Court reasoned that § 16(b) “covers offenses that naturally involve
a person acting in disregard of the risk that physical force might be used against
another in committing an offense” and focuses on “the risk that the use of
physical force against another might be required in committing a crime.”24 The
Court cited burglary as a prime example, stating that “burglary, by its nature,
involves a substantial risk that the burglar will use force against a victim in
completing the crime.”25
       Sexual assault of an adult with that person’s actual assent but without
legally effective consent under the circumstances described in subsections (9)
and (10) of the Texas statute is more similar to a DUI than burglary because,
unlike burglary, a sexual relationship that a clergyman has gained through


       20
          United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999) (per curiam)
(quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995), overruled on other
grounds by United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc)).
       21
            Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).
       22
            Id.
       23
            543 U.S. 1.
       24
            Id. at 10.
       25
            Id.

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                                         No. 10-60763

exploitation of emotional dependency is not a situation where there is a
substantial risk that the offender will use force against the victim to complete
the crime. Nor does there appear to be a substantial risk “destructive or violent”
force may be used.26
       Both parties cite this circuit’s decision in Zaidi v. Ashcroft,27 in which we
analyzed whether an Oklahoma statute that criminalized “the intentional
touching, mauling or feeling of the body or private parts of any
person . . . without the consent of that other person” was a crime of violence
under § 16(b).28 Zaidi’s charges arose from a night of drinking during which he
inappropriately touched two women through their clothing while the women
were either passed out or partially awake.29 We held that the offense defined by
the statute under consideration presented a “substantial” risk that “physical
force will be used to complete the offense of sexual battery,” because such an
offense “carries with it the ever-present possibility that the victim may figure out
what’s really going on and decide to resist, in turn requiring the perpetrator to
resort to actual physical restraint.”30 We said that in such cases, “‘the non-
consent of the victim is the touchstone for determining’ whether a given offense




       26
            Larin-Ulloa v. Gonzales, 462 F.3d 456, 465 (5th Cir. 2006).
       27
            374 F.3d 357 (5th Cir. 2004) (per curiam).
       28
            Zaidi, 374 F.3d at 360 (emphasis added).
       29
            Id. at 358.
       30
        Id. at 361 (quoting United States v. Mack, 53 F.3d 126, 128 (6th Cir. 1995), abrogated
by United States v. Wynn, 579 F.3d 567 (6th Cir. 2009)) (internal quotation marks omitted).

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                                           No. 10-60763

involves a substantial risk that physical force may be used in the commission of
the offense.”31
      We note that our decision in Zaidi relied, in part, on a Sixth Circuit case,
United States v. Mack,32 to support the proposition that sexual battery through
deception is a crime of violence.33 In United States v. Wynn,34 however, the Sixth
Circuit concluded that Mack “is no longer good law” in light of the Supreme
Court’s decision in Begay v. United States.35 The Wynn court reasoned that the
Ohio statute under which the defendant was convicted criminalized “a
consensual sexual act between adults [that] would not be violent and aggressive
by nature.”36 The court gave as an example “a consensual sexual encounter
between a woman and her 21-year-old adopted stepson.”37 The Sixth Circuit
held that a conviction under the Ohio statute at issue could not categorically be
a crime of violence.38
      Unlike the offense defined by the statute in Zaidi, during a sexual
encounter with a physician or a clergyman, a victim could factually assent to the
sexual relation, despite consent being deemed a legal nullity. In such situations,


      31
           Id. (quoting Sutherland v. Reno, 228 F.3d 171, 177 (2d Cir. 2000)).
      32
           53 F.3d 126 (6th Cir. 1995).
      33
           Zaidi, 374 F.3d at 361 (quoting Mack, 53 F.3d at 128).
      34
           579 F.3d 567 (6th Cir. 2009).
      35
           Wynn, 579 F.3d at 573 (citing Begay v. United States, 553 U.S. 137 (2008)).
      36
           Id. at 574.
      37
           Id.
      38
           Id.

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                                         No. 10-60763

there is not a “substantial risk that physical force may be used” because there
is not the same risk “that the victim may figure out what’s really going on and
decide to resist” as there would be if, as in Zaidi, a victim could wake up and
resist an ongoing assault.39
       Today’s holding does not contradict our prior holdings concerning crimes
of violence. We have held that indecency with a child younger than 17,40
burglary of a habitation,41 burglary of a nonresidential structure or vehicle,42 and
unauthorized use of a motor vehicle43 all involve a substantial risk that physical
force may be used. In deciding that indecency with a child as old as 17 is a crime
of violence, we stressed that “such crimes typically occur in close quarters, and
are generally perpetrated by an adult upon a victim who is not only smaller,
weaker, and less experienced, but is also generally susceptible to acceding to the
coercive power of adult authority figures,” as well as that the child “has very few,
if any, resources to deter the use of physical force by an adult intent on touching
the child.”44
       The Second Circuit similarly held that despite the possibility that a 17-
year-old could be convicted for having sexual intercourse with his 15-year-old



       39
            Zaidi v. Ashcroft, 374 F.3d 357, 358 (5th Cir. 2004) (per curiam).
       40
            United States v. Velazquez-Overa, 100 F.3d 418, 421-22 (5th Cir. 1996).
       41
         United States v. Guadardo, 40 F.3d 102, 103 (5th Cir. 1994) (citing United States v.
Cruz, 882 F.2d 922, 923 (5th Cir. 1989)).
       42
            United States v. Ramos-Garcia, 95 F.3d 369, 371 (5th Cir. 1996) (per curiam).
       43
            United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999) (per curiam).
       44
            Velazquez-Overa, 100 F.3d at 422.

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                                        No. 10-60763

girlfriend, all sexual intercourse with a minor is nonconsensual.45 The court
reasoned that minors do not have the legal capacity to consent and that a statute
involving a victim who is unable to give consent “inherently” involves a
substantial risk that force may be used.46 The court explained that there is a
substantial risk of force when there is age disparity, the victim has a physical
or mental incapacity, or the defendant is in a position of authority over the
victim.47 The Eighth Circuit also determined that intentional physical contact
“between an adult 19 years of age or older and a child 14 years of age or
younger” who undoubtedly have “differing physical and emotional maturity”
carries a substantial risk of force being used.48
      But the rationale of these cases cannot be stretched to encompass sexual
relations between a clergyman and one receiving spiritual counseling or to
sexual relations between a health care provider and a patient. The sexual
contact that is criminalized, though garnered through exploitation of emotional
dependency, is not “substantially” likely to be met with force if assent is
withdrawn. While we stated in Zaidi that consent is the ultimate touchstone,
that case addressed a statute that did not differentiate between factual and legal
consent.49 Conversely, section 22.011 sets forth scenarios in which a victim could


      45
           Chery v. Ashcroft, 347 F.3d 404, 408 (2d Cir. 2003).
      46
           Id.
      47
           Id. at 408-09.
      48
           United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (per curiam).
      49
           The statute at issue in Zaidi provided as follows:
      No person shall commit sexual battery on any other person. “Sexual battery”
      shall mean the intentional touching, mauling or feeling of the body or private

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                                       No. 10-60763

give factual assent that is rendered a legal nullity. The sections of the Texas
Penal Code on which Rodriguez relies are unlike child assault offenses because
children are in both physically and emotionally inferior positions than adults
seeking professional services from a clergyman or health care provider.
       Though section 22.011 defines certain acts as being “without consent,” we
are applying a federal statute, 28 U.S.C. § 16(b), to a Texas Penal Code
provision. Deeming the actions described in section 22.011 to be “without
consent” does not control whether an offense is a “crime of violence” under
§ 16(b).
                                     *        *       *
       For the foregoing reasons, we GRANT Rodriguez’s petition and VACATE
the order of removal.




       parts of any person sixteen (16) years of age or older, in a lewd and lascivious
       manner and without the consent of that other person . . . .
Zaidi v. Ashcroft, 374 F.3d 357, 360 (5th Cir. 2004) (per curiam) (quoting OKLA. STAT. ANN.
tit. 21, § 1123(b) (West 2002)) (internal quotation marks omitted).

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                                       No. 10-60763

EDITH BROWN CLEMENT, Circuit Judge, dissenting:
       The majority concludes that convictions under § 22.011(a)(1) of the Texas
Penal Code for circumstances described in subparts (b)(9) and (b)(10) are not
aggravated felonies. It therefore applies the modified categorical approach, finds
that the record does not establish that Rodriguez’s crime of conviction was an
aggravated felony, and vacates the BIA order finding him removable. Because
I believe that a conviction under § 22.011(a)(1) is categorically for a crime of
violence under 18 U.S.C. § 16, I respectfully dissent.
       The majority compares the situations described in (b)(9) and (b)(10) to a
DUI that results in personal injury to a third party, which the Supreme Court
has held is not a crime of violence under § 16, and burglary, which the Court
called “a classic example” of a crime of violence, because “by its nature” it entails
a substantial risk that the perpetrator will use force against the victim in
completing the crime.1 Leocal v. Ashcroft, 543 U.S. 1, 10-11 (2004). It concludes
that the sexual assaults criminalized in (b)(9) and (b)(10) are more similar to
DUIs than burglaries because “a sexual relationship that a clergyman has
gained through exploitation of emotional dependency is not a situation where
there is a substantial risk that the offender will use force against the victim to
complete the crime.”2 I believe that under the majority’s analysis this conclusion



       1
       This court has also held that burglary is a crime of violence. United States v.
Guadardo, 40 F.3d 102, 103-04 (5th Cir. 1994).
       2
         This conclusion that felony sexual assault is more similar to DUI than burglary does
not find support in federal law. The federal felony murder law lists “sexual abuse” along with
burglary as one of the crimes upon which first degree felony murder can be based; it makes
no mention of DUI. 18 U.S.C. § 1111(a). DUI and sexual assault or abuse are not classified
together or found in the same clause anywhere in the United States Code.

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                                        No. 10-60763

does not follow.       Moreover, I believe that the majority’s analysis itself is
incorrect.
       Although the majority recognizes that our court has declared that non-
consent of the victim is the touchstone for analyzing whether an offense involves
a substantial risk of force, see Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir.
2004), it purports to draw a new distinction between cases where a victim could
factually assent (even though she did not legally consent) and cases like Zaidi,
where the victim could not factually assent because she was unconscious. The
majority believes that incidents where a victim factually consents do not pose a
substantial risk of violence, while incidents involving an unconscious victim pose
such a risk because the victim may regain consciousness and resist, leading the
offender to use force to overcome that resistence. But the majority’s distinction
between factual assent and legal consent becomes contorted when it attempts to
reconcile its holding with our precedent. The majority assures us that this
circuit’s holding that indecency with a child is a crime of violence remains
undisturbed. But a child can factually assent to sexual conduct, even though she
does not have the legal capacity to consent.3 By insisting that its holding today
does not undermine any of our previous cases, the majority sets up a rather
strange legal rule: If the victim does not factually assent, the offense is a crime
of violence. If the victim factually assents but consent is a legal nullity (such as

       3
         Similarly, an offender who gains entry into a dwelling by fraud or trick can still be
convicted of burglary under a “constructive breaking” theory, even though the landlord
factually assented to the offender’s entry. See Martinez v. State, 41 Tex. 126, 127 (1874) (“[T]o
constitute this offense [of burglary] there must have been an actual or constructive breaking.”);
13 Am. Jur. 2d Burglary § 13 (1994) (“Breaking in, which is an essential element of the crime
of burglary, may be either actual or constructive. Actual breaking in involves the application
of physical force, however slight, to effectuate the entry. Where the entry is gained by threats,
fraud, or conspiracy, a constructive breaking in is deemed to have occurred.”).

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                                  No. 10-60763

in the case of sexual assault by a clergyman), it is not a crime of violence, unless
consent is a nullity because the victim lacks the capacity to give legal consent
(such as in the case of indecency with a minor), in which case it is a crime of
violence.
      This contorted holding masks the real problem with the majority’s
conclusion, which is that the majority fails to explain why it believes that those
who lack the capacity to consent are more likely to “figure out what’s really going
on and decide to resist” after they factually assent than those who have the
capacity to consent, but for whom consent is a legal nullity. Because I do not
believe that the majority can explain this disparity, I believe that even under the
majority’s analysis, § 22.011(b)(9) and (b)(10) describe crimes of violence.
      To make non-consensual sexual touching through the clothing of an
unconscious individual a “crime of violence” in Zaidi, this court relied on a
substantial likelihood of three possibilities: (1) the victim might come to her
senses, (2) the victim might decide to resist, and (3) the criminal might then
resort to physical restraint. See Zaidi, 374 F.3d at 361. The question raised in
the petition is whether a physician or clergyman who manipulates a patient or
parishioner into engaging in factually consensual sex based on emotional
dependence could run afoul of these three possibilities. The majority does not
explain how these three possibilities are not at least plausible in such a context,
but instead assumes them away based on the presence of factual assent.
However, for the same reasons this court has not permitted an individual
convicted of sexual assault of unconscious victims to avoid the crime of violence
label, these legally non-consensual sexual relationships also pose a substantial
risk of physical restraint.


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                                   No. 10-60763

      First, if the case is being prosecuted, the victim of emotional manipulation
at some point came to her senses – maybe even during intercourse. Second,
because a victim who is manipulated into a factually assented-to relationship is
physically conscious of the sexual transaction underway, she could certainly
decide to resist in the midst of it. Finally, there is no indication that physicians
or clergy are any more or less likely to resort to physical restraint than an
assailant who touches the clothed body of an unconscious victim. An argument
could even be made that an individual who touches a sleeping or unconscious
victim will be deterred and avoid physically restraining such a victim when that
victim awakes and decides she does not want to engage in the activity, while the
person who manipulates consent will be prone to continue the action even if
physical restraint becomes necessary. There is no support for the assertion that
emotionally manipulated victims are any less likely to come to their senses and
resist than unconscious victims or that physicians and clergymen who
manipulate victims are any less likely to resort to physical restraint than other
perpetrators. Even under the majority’s analysis, an offender convicted under
§ 22.011(a)(1) for the circumstances described in (b)(9) or (b)(10) has committed
a crime of violence.
      More importantly, by focusing only on the risk that the offender may use
additional physical force if the victim decides to resist, the majority overlooks the
fact that sexual assault is itself intentional physical force. Under the majority’s
analysis, a cult leader who persuaded one of his followers to assent to a murder-
suicide pact would not be guilty of a crime of violence because there would be
little risk that the follower would figure out what is going on and need to be
physically restrained before the leader shoots him dead. Unlike burglary, where


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                                       No. 10-60763

there is a risk that the offender will use force to facilitate the completion of the
crime, the risk in felony sexual assault cases – or murder cases, or any crime of
violence against the person – is that the offender will complete the crime.
Burglary, “by its nature,” involves a substantial risk of violence against a victim.
Leocal, 543 U.S. at 10. Sexual assault, by its nature, involves violence against
a victim.4
       After the Court held in Leocal that a DUI that results in personal injury
is not a crime of violence, the fact that felony sexual assault by its nature
involves force against a victim does not necessarily mean that such sexual
assault qualifies as a crime of violence under § 16, because a DUI resulting in
injury also by its nature involves force that causes the injury. But Leocal, which
the Court decided after our decision in Zaidi, gave no weight in its analysis to
whether or not the victim assented or consented to the offender’s conduct. In
fact, although the victim injured by the drunk driver certainly did not assent to
the driver’s actions, the Court nevertheless concluded that the DUI was not a
crime of violence as defined by § 16. Rather than focusing on the victim’s
conduct, as the majority does here, the Court focused on the offender’s mental
state. It held that § 16 “requir[es] a higher mens rea than the merely accidental
or negligent conduct involved in a DUI offense,” Leocal, 543 U.S. at 11, because
it requires not only that the crime involve force or the substantial risk of force
against the victim, but also that the offender “use” or threaten to use this force.
18 U.S.C. § 16. Interpreting the phrase “use of physical force” in § 16, it
construed “use” to “suggest[] a higher degree of intent” than negligence. Leocal,

       4
         Sexual assault of an adult is thus properly analyzed under § 16(a), which covers
offenses that involve the use of physical force against a victim, while burglary, as an offense
that involves only a risk of such force, is covered under § 16(b).

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                                       No. 10-60763

543 U.S. at 10.         Based on this construction, the Court concluded that
“[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the
distinction between the ‘violent’ crimes Congress sought to distinguish for
heightened punishment and other crimes.” Id. at 11 (citation omitted). Thus the
Court held that even though a DUI that results in personal injury necessarily
involves force against a victim, it is not categorically a crime of violence, because
the offender does not use that force.
       Section 22.011(a)(1), on the other hand, criminalizes an offender’s behavior
only if it is undertaken “intentionally or knowingly.” TEX. PENAL CODE §
22.011(a)(1). The offender’s sexual conduct, for which he is convicted, must be
deliberate. Cf. Begay v. United States, 553 U.S. 137, 145-46 (2008) (“[A] drunk
driver may very well drink on purpose. But this Court has said that, unlike the
example crimes, the conduct for which the drunk driver is convicted (driving
under the influence) need not be purposeful or deliberate.” (citing Leocal, 543
U.S. at 11 and United States v. Begay, 470 F.3d 964, 980 (10th Cir. 2006)
(McConnell, J., dissenting in part), rev’d and remanded, 553 U.S. 137)). From
the § 22.011(a)(1) offender’s perspective, he intends to use or knows he is using
force against the victim. And factual assent is no defense, because, under the
Texas law, the offender must be aware, given the mens rea element, that the
victim has not given legal consent.5 See TEX. PENAL CODE § 22.011(a) (“A person

       5
          Moreover, the offender is charged with knowledge of what constitutes legal consent
under the Texas statute. See United States v. Emerson, 270 F.3d 203, 215-16 (5th Cir. 2001)
(reasserting that “ignorance of the law is no excuse” absent the “limited” exception for conduct
that is, among other things, “passive activity . . . [that] an average member of the community
would not consider . . . blameworthy”); cf. Bryan v. United States, 524 U.S. 184, 193 (1998)
(explaining that “the term ‘knowingly’ merely requires proof of knowledge of the facts that
constitute the offense,” not “that the defendant knew that his [conduct] was unlawful”).
Therefore, a physician or clergyman knows that if exploits a victim’s emotional dependency,

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                                       No. 10-60763

commits an offense if the person (1) intentionally or knowingly [engages in
sexual conduct with another person] without that person’s consent.”). Therefore,
he knows he is forcing unconsented-to sexual penetration or other contact on his
victim. Every conviction under § 22.011(a)(1) thus involves the use of physical
force against the victim, whether or not the conviction involves the risk that the
offender may use additional force to subdue the victim before he assaults her.
        Because every crime under § 22.011(a)(1) is a deliberate use of physical
force against the victim without her legal consent, every crime in the provision
is a crime of violence as defined by 18 U.S.C. § 16. I would hold, therefore, that
Rodriguez was necessarily convicted under § 22.011(a)(1) of an aggravated felony
and this court lacks jurisdiction over his petition. I respectfully dissent.




she has not given him legal consent.

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