                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
                       REVISED JULY 29, 2004
               IN THE UNITED STATES COURT OF APPEALS          June 21, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk
                       _____________________

                           No. 03-40741
                       _____________________



     UNITED STATES OF AMERICA

                                      Plaintiff - Appellee

          v.

     JOSE SARMIENTO-FUNES

                                      Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.

KING, Chief Judge:

     The defendant pleaded guilty to illegally reentering the

country after having been deported.    On appeal, he principally

challenges the imposition of a sixteen-level sentence enhancement

under U.S.S.G. § 2L1.2.     We affirm the conviction but vacate the

sentence and remand for resentencing.

                             I. BACKGROUND

     Defendant-Appellant Jose Sarmiento-Funes, a citizen of

Honduras, was indicted in January 2003 for violating 8 U.S.C.

§ 1326 by unlawfully reentering the United States after having
been removed following an aggravated felony conviction.

Sarmiento-Funes pleaded guilty.    The forty-eight-month sentence

imposed by the district court in May 2003 included a sixteen-

level enhancement based on a previous conviction for a “crime of

violence” within the meaning of U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)

(2002).

     The prior conviction that generated the sentence enhancement

was a 2002 Missouri conviction for “sexual assault,” which the

state statutes define as follows: “A person commits the crime of

sexual assault if he has sexual intercourse with another person

knowing that he does so without that person’s consent.”    MO. ANN.

STAT. § 566.040(1) (West 1999).1   Sarmiento-Funes objected to the

enhancement, pointing out that Missouri has a different statute,

§ 566.030, that outlaws “forcible rape.”    The sexual assault

statute under which he was convicted, Sarmiento-Funes urged the

district court, does not require the use of force.    The district

     1
          The record in this case includes a state court criminal
information, but the information only tracks the language of the
statute. This case accordingly does not involve the question of
the extent to which the sentencing court can use charging papers
to narrow down a broad statute in order to determine more
precisely the nature of the conduct of which the defendant was
convicted. See, e.g., Taylor v. United States, 495 U.S. 575, 602
(1990); United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.
2003), vacated & reh’g granted, 362 F.3d 293 (5th Cir. 2004).
Further, although the Presentence Investigation Report (PSR)
contains some additional details possibly gleaned from a police
report (although their provenance is unclear) that information
cannot be used in determining whether Sarmiento-Funes committed a
“crime of violence.” See United States v. Turner, 349 F.3d 833,
836-37 (5th Cir. 2003); United States v. Allen, 282 F.3d 339,
342-43 (5th Cir. 2002).

                                   2
court overruled the objection, concluding that the offense

defined by § 566.040 has as an element the use of force, namely

the force inherent in sexual penetration.

     Sarmiento-Funes appeals, challenging primarily the sentence

enhancement but also the constitutionality of part of the

illegal-reentry statute.

                            II. ANALYSIS

A.   Sentence Enhancement

     The 2002 Sentencing Guidelines, the version in effect at the

time of sentencing, provide that the term “crime of violence”:

     (I)   means an 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; and

     (II) includes    murder,    manslaughter,     kidnapping,
          aggravated    assault,   forcible    sex    offenses
          (including sexual abuse of a minor), robbery,
          arson, extortion, extortionate extension of credit,
          and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002).      An offense can be a

“crime of violence” either because it has as an element the use

of force under paragraph (I) or because it fits within the

enumerated list in paragraph (II).   United States v. Rayo-Valdez,

302 F.3d 314, 316-19 (5th Cir. 2002).      The district court

enhanced the defendant’s sentence based on paragraph (I).       We

review the district court’s interpretation of the Sentencing

Guidelines de novo and any findings of fact for clear error.

United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).

                                 3
     1.   Use of force as an element

     We begin by observing that Sarmiento-Funes is correct that

the Missouri sexual assault statute does not require force in the

same sense as does a traditional forcible rape statute.        That is,

the sexual assault statute does not require that physical

violence, coercion, or threats accompany the sex act.        Instead,

the sexual assault statute makes it an offense for a person to

“ha[ve] sexual intercourse with another person knowing that he

does so without that person’s consent.”    MO. ANN. STAT.

§ 566.040(1).    The crime is a Class C felony that carries a

statutory maximum of seven years, including both imprisonment and

conditional release.    Id. §§ 558.011(1), 566.040(2).      As noted

above, a different Missouri statute outlaws rape that is

accomplished with “the use of forcible compulsion.”      Id.

§ 566.030(1).2   The statutory maximum sentence for forcible rape

under Missouri law is life imprisonment.    Id. § 566.030(2).      Of

course, that Missouri has a forcible rape statute that evidently

describes a “crime of violence” does not necessarily mean that

Missouri’s relatively less aggravated sexual assault statute

therefore lacks the use of force as an element.     The district

court did not find the existence of the two different statutes


     2
          Forcible compulsion is defined as “[p]hysical force
that overcomes reasonable resistance; or . . . [a] threat,
express or implied, that places a person in reasonable fear of
death, serious physical injury or kidnapping of such person or
another person . . . .” MO. ANN. STAT. § 556.061(12) (West 1999).

                                  4
determinative, and the government agrees with the district

court’s conclusion that the sexual assault offense involves the

“use of force” for purposes of the Guidelines regardless of

whether the offense involves overt physical violence, forcible

compulsion, or threats.

     The Missouri sexual assault statute requires that the

perpetrator engage in sexual intercourse, which means “any

penetration, however slight.”    Id. § 566.010(4).   The government

has at points suggested that the statute involves the use of

force merely by virtue of the force inherent in the act of

penetration.   Its principal support for this contention is United

States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir. 2002).    That case

did not involve the “crime of violence” definition at issue here

but instead considered whether a certain Washington sex offense

counted as “rape” within the meaning of 8 U.S.C.

§ 1101(a)(43)(A).   The Ninth Circuit held that the term “rape”

did not require any force beyond that inherent in the act of

penetration.   Id. at 996.3   The court therefore held that


     3
          In this appeal we are not interpreting the meaning of
the term “rape” as it is used in 8 U.S.C. § 1101(a)(43)(A), and
so Yanez-Saucedo is not directly on point. The meaning of “rape”
might be highly relevant on remand, however: Under
§ 2L1.2(b)(1)(C), Sarmiento-Funes would be eligible for an eight-
level sentence enhancement if his prior offense constituted the
“aggravated felony” of “rape” within the meaning of
§ 1101(a)(43)(A), the same provision at issue in Yanez-Saucedo.
A holding that the sixteen-level “use of force” enhancement was
improper does not mean that the eight-level “rape” enhancement is
unavailable. See infra note 13.

                                  5
although the state statute did not require forcible compulsion,

the defendant’s prior offense could still be considered rape

because of the force inherent in penetration.       Id. at 995-96.4

     It is true that the very act of penetration (like less

serious and intimate forms of bodily contact) involves “force” in

a physics or engineering sense.        See Flores v. Ashcroft, 350 F.3d

666, 672 (7th Cir. 2003) (noting that practically every crime

involves “force” in this sense).       Nonetheless, it is not open to

us to hold that the force of penetration per se amounts to the

“use of force” to which the Sentencing Guidelines refer.       Indeed,

a recent decision of this court rejects that precise proposition.

See United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)

(holding that a certain sex crime did not involve the “use of

force” despite the fact that the defendant was charged with

     4
          The government reads a certain Missouri case, State v.
Niederstadt, 66 S.W.3d 12, 15 (Mo. 2002), as demonstrating that
the Missouri courts recognize that penetration is itself a type
of force. The defendant, for his part, cites a different
Missouri case, State v. Dighera, 617 S.W.2d 524, 533 n.8 (Mo. Ct.
App. 1981), that distinguishes between rape and sexual assault
and implies that Missouri law does not consider sexual assault
“forceful.” Although we look to state law for the elements of an
offense, state law does not govern the crucial question here:
whether the Missouri sexual assault crime inherently involves the
use of force. That question depends on the meaning of the phrase
“use of physical force” in the Sentencing Guidelines, a question
of federal law that does not turn on Missouri’s particular view
of whether penetration inherently involves force. See United
States v. Shannon, 110 F.3d 382, 385, 386 (7th Cir. 1997) (en
banc); United States v. Vasquez-Balandran, 76 F.3d 648, 649-50
(5th Cir. 1996); cf. Taylor, 495 U.S. at 590-92 (explaining that
the term “burglary” as it is used in a sentence-enhancement
statute has a uniform, nationwide meaning, regardless of how
individual states label offenses).

                                   6
“caus[ing] his sex organ to contact and penetrate the female sex

organ of [the victim]”);5 accord United States v. Meader, 118

F.3d 876, 881-82 (1st Cir. 1997); Shannon, 110 F.3d at 384-85

(both holding that statutory rape offenses did not involve the

use of force under U.S.S.G. § 4B1.2); cf. United States v.

Velazquez-Overa, 100 F.3d 418, 420 (5th Cir. 1996) (stating that

“physical force is not an element of the crime” of sexual contact

with a child).   Therefore, we cannot conclude that the act of

penetration itself is enough to supply the force required under

§ 2L1.2 cmt. n.1(B)(ii)(I).

     Of course, the Missouri statute does not criminalize mere

penetration, but instead outlaws penetration that the perpetrator

knows is without the consent of the victim, a crucial

consideration.   The government argues that if penetration does

not itself entail the use of force, then it becomes forceful when

it occurs without consent (even though the bodily contact itself

is the same in either case).   Here again we find that our recent

Houston decision provides substantial guidance.     Houston held

that statutory rape, TEX. PENAL CODE ANN. § 22.011(a)(2) (Vernon

2003), does not have as an element the use of physical force

against the person of another.   364 F.3d at 246.   Significantly

for present purposes, the Houston panel reasoned that the

     5
          Houston was interpreting U.S.S.G. § 4B1.2(a)(1), a
Guidelines provision that employs “use of force” language
identical to that employed in U.S.S.G. § 2L1.2 cmt.
n.1(B)(ii)(I).

                                 7
statutory rape offense does not involve the use of force because

the statute proscribes “consensual” sexual conduct.      Id.

Consensual sex, according to Houston, does not involve the use of

force, even though the sex happens to be illegal.      Houston’s

holding that consensual sex does not involve the use of force

does not compel the proposition that nonconsensual intercourse

does involve the use of force, but such a result would not be

inconsistent with Houston’s reasoning.

     In applying Houston to the case at hand, we observe that

Houston’s statement that statutory rape is consensual is in one

sense counter-intuitive, for it is often said that statutory rape

is considered rape precisely because the minor victim of the

crime is, as a matter of law, deemed incapable of giving consent.

See Turner v. State, 246 S.W.2d 642, 643 (Tex. Crim. App. 1952);

Duby v. State, 735 S.W.2d 555, 557 (Tex. App.–Texarkana 1987,

pet. ref’d) (“A person under the age of seventeen is legally

incapable of giving consent to intercourse.”); see also 3 CHARLES

E. TORCIA, WHARTON’S CRIMINAL LAW § 285, at 68-69 (15th ed. 1995)

(citing cases from various jurisdictions).     But cf. Garcia v.

State, 661 S.W.2d 96, 99 (Tex. Crim. App. 1983) (McCormick, J.,

concurring) (“Children under seventeen are not presumed by the

law to be incapable of consent, their consent is simply

irrelevant.”).   What Houston’s statements regarding consent must

be taken to mean is that the sex at issue in statutory rape may

be consensual as a matter of fact, even if the law disregards or

                                  8
countermands the victim’s decision.   The rule that emerges from

Houston, therefore, is that intercourse does not involve the use

of force when it is accompanied by consent-in-fact.

     Although the Missouri sexual assault statute speaks of

intercourse “without consent,” the state statutes explicitly

distinguish between “assent” and “consent,” providing that

“assent” sometimes does not count as “consent.”6   The Missouri

sexual assault statute therefore reaches intercourse to which the

victim assents, though that assent is a legal nullity, such as

when it is the product of deception or a judgment impaired by

intoxication.   But under the rule of Houston, described above,

illegal intercourse with consent-in-fact, i.e. assent, does not


     6
          Section 556.061(5) of the Missouri Code provides:

     [C]onsent or lack of consent may be expressed or
     implied. Assent does not constitute consent if:

     (a) It is given by a person who lacks the mental capacity
     to authorize the conduct charged to constitute the
     offense and such mental incapacity is manifest or known
     to the actor; or

     (b) It is given by a person who by reason of youth,
     mental disease or defect, or intoxication, is manifestly
     unable or known by the actor to be unable to make a
     reasonable judgment as to the nature or harmfulness of
     the conduct charged to constitute the offense; or

     (c) It is induced by force, duress or deception[.]

This list of situations in which assent does not equal consent
does not include the scenario in which the perpetrator
incapacitates the victim, such as by drugging the victim without
her knowledge. Such conduct would fall under Missouri’s forcible
rape statute. See MO. ANN. STAT. § 566.030(1).

                                 9
involve the use of force.7    Since some (though not all) methods

of violating the Missouri statute do not require the use of

physical force against the victim, the statute therefore does not

have, as an element, the use of physical force against the person

of another.   See United States v. Vargas-Duran, 356 F.3d 598, 605

(5th Cir. 2004) (en banc).8

     Our conclusion finds support in the Sixth Circuit’s decision

in United States v. Arnold, 58 F.3d 1117 (6th Cir. 1995).     There,

the question was whether a Tennessee conviction for assault with

intent to commit sexual battery involved the “use, attempted use,

or threatened use of physical force” under U.S.S.G. § 4B1.2.    The

court observed that sexual battery could, according to Tennessee

law, be accomplished in a number of disparate ways, namely

     7
          The dissent argues that the Missouri offense involves
the use of force because the victim is unable to give consent-in-
fact. We respectfully disagree, inasmuch as § 556.061(5)
explicitly contemplates that the victim can manifest “assent,”
i.e. consent-in-fact, without that manifestation qualifying as
legal consent. Moreover, we do not find persuasive the dissent’s
approach to intercourse induced by deception, which the statute
also explicitly contemplates. The victim of deception manifests
consent-in-fact, though it is legally vitiated. We do not
believe that, under Houston, penetration that occurs under such a
circumstance involves the use of physical force against the
victim.
     8
           Since our decision relies on Houston’s distinction
between consent-in-fact and consent-in-law, we leave open the
question whether intercourse not accompanied by extrinsic force
or threats could nonetheless be said to involve the “use of
force” for Guidelines purposes when there is no factual assent to
the sex act. That is, it is possible that there could be a “use
of force” for Guidelines purposes even when there is no “force”
as that term is normally understood in connection with forcible
rape laws.

                                 10
through: (1) the use of force or coercion, (2) the mental

deficiency or physical incapacity of the victim, or (3) fraud.

Id. at 1121-22.   The court concluded that while the “use of

force” for Guidelines purposes was involved in some methods of

violating the statute, force was not required in all cases; in

particular, the court pointed to fraud as a manner of violating

the statute that “would not involve an element of force or

attempted or threatened force.”     Id. at 1122; see also 2 WAYNE R.

LAFAVE, SUBSTANTIVE CRIMINAL LAW § 17.1(a), at 605 (2d ed. 2003)

(referring to fraud as an “alternative[]” to force in the rape

context).   Deception is likewise one of the methods of committing

sexual assault under Missouri law, see MO. ANN. STAT.

§ 556.061(5)(c), and we agree that a sex offense accomplished in

this manner does not involve the “use of force” within the

meaning of the applicable Sentencing Guidelines.

     In its final argument that the Missouri offense requires the

use of force, the government contends that unconsented-to sex is

itself a form of bodily injury.     While we are sympathetic to the

sentiment the government is expressing, we cannot adopt this view

of the meaning of bodily injury.       To begin with, as we observed

earlier, the Missouri offense reaches some assented-to sex.9       The

     9
          This factor distinguishes the present case from United
States v. Brown, the Seventh Circuit case on which the government
relies in arguing that the Missouri statute involves physical
injury. Brown held that “forced nonconsensual sex with strangers
is ‘conduct that presents a serious potential risk of physical
injury to another’” under the Armed Career Criminal Act, 18

                                  11
offense is certainly a gross and outrageous affront to the victim

in any case.   But to say that the Missouri statute per se

involves bodily injury, while a way of amplifying one’s

condemnation of the crime, reaches beyond the normal

understanding of the term “bodily injury.”    This court has

previously considered the Texas crime of sexual contact with a

child--an offense that likely affects the victim as seriously as

does the crime at issue here--and yet we have said that that

sexual contact does not amount to the use of physical force.     See

Velazquez-Overa, 100 F.3d at 420.     Some sex offenses do include

an element of bodily injury (as that term is normally

understood), e.g., LA. REV. STAT. ANN. § 14:43.2 (West 1997)

(aggravated sexual battery); TEX. PENAL CODE ANN.

§ 22.021(a)(2)(A)(i) (Vernon 2003) (aggravated sexual assault),

but this Missouri statute does not.

     2.   “Forcible sex offenses”

     Although the district court enhanced the defendant’s

sentence under paragraph (I) of § 2L1.2’s “crime of violence”

definition, the government urges that we can also affirm the

enhancement on the alternative basis that the defendant’s prior

conviction--whether or not it satisfies paragraph (I)’s general



U.S.C. § 924(e)(2)(B)(ii) (2000). See 273 F.3d 747, 750 (7th
Cir. 2001). In reaching that conclusion, the court observed
that, in addition to the risk of collateral injuries, the
compelled sex act could itself be considered a type of “physical
injury.” Id. at 750-51.

                                 12
definition--is an offense specifically enumerated in paragraph

(II), namely a “forcible sex offense.”

     Neither side has been able to provide us with definitive

guidance on the meaning of “forcible sex offense” as that term is

used in § 2L1.2.   The Sentencing Guidelines and their commentary

do not define the term.    The parties agree that certain crimes,

such as forcible rape in the traditional sense, clearly count as

“forcible sex offenses,” and they also agree that certain other

crimes involving wholly consensual sex (such as adultery) are not

“forcible sex offenses.”    The particular crime at issue here,

MO. ANN. STAT. § 566.040, falls somewhere in the middle of those

two agreed extremes.   At certain points, the parties treat the

question whether the offense is a “forcible sex offense” as a

corollary to the question addressed earlier, i.e. whether the

prior offense has as an element the use of force for purposes of

paragraph (I): If the sexual assault offense does not involve the

use of force, then it is not a “forcible sex offense”; if it does

require the use of force, then it is a “forcible sex offense.”

They also, however, marshal a few arguments that would

independently arrive at a definition for the phrase.

     The government’s primary argument regarding the meaning of

“forcible sex offense” as that term is used in § 2L1.2 is that

the same phrase is used in a different section of the Guidelines

in a context in which (says the government) it is apparent that

forcible compulsion is not required.   In particular, the

                                 13
government points out that the commentary to the Guidelines

section applicable to certain “sexual abuse crimes”--crimes that

do not necessarily require threats or forcible compulsion in the

brute sense--states that those crimes “are crimes of violence.”

U.S.S.G. § 2A3.1 cmt. bkgrd. (2003).10   At the time that this

particular Guideline was promulgated, over fifteen years ago,

there was only one definition of “crime of violence” in the

Guidelines, namely the definition provided in § 4B1.2.     The 1987

commentary to § 4B1.2, in turn, states that its definition of

“crime of violence” encompasses, among many other things,

“forcible sex offenses.”   Therefore, according to the government,

this series of cross-references tells us that a crime does not

require forcible compulsion for it to be a “forcible sex

offense.”

     The government’s argument on this score is logically faulty.

From the propositions (1) that certain “sexual abuse crimes” are

“crimes of violence,” and (2) that “forcible sex offenses” are

     10
          One of the crimes covered by this Guidelines section is
18 U.S.C. § 2242, which can be violated, inter alia, by:

     engag[ing] in a sexual act with another person if that other
     person is--

     (A)    incapable of appraising the nature of the conduct; or

     (B)    physically incapable of declining participation in, or
            communicating unwillingness to engage in, that sexual
            act . . . .

18 U.S.C. § 2242(2) (2000).


                                 14
also “crimes of violence,” it does not follow that the specified

“sexual abuse crimes” are “forcible sex offenses.”   It is also

notable that the definition of “crime of violence” in the 1987

version of § 4B1.2 relied on 18 U.S.C. § 16, which in turn

defines “crime of violence” as either a crime that has as an

element the use of force or a crime that by its nature poses a

substantial risk that force may be used.   Therefore, the “sexual

abuse crimes” discussed in § 2A3.1 could qualify as “crimes of

violence” under 18 U.S.C. § 16 as long as they involved a

substantial risk that force would be used.11   This web of related

provisions therefore does not support the logical inference the

government suggests.

     Relatively few appellate cases have discussed the meaning of

“forcible sex offenses” for Guidelines purposes.   Almost all of

those that do discuss it, do so in connection with another


     11
          Indeed, a number of cases have held that various sex
offenses satisfy 18 U.S.C. § 16’s definition precisely because
they involve a substantial risk that force will be used, even if
they do not necessary require the use of force as an element.
See, e.g., Velazquez-Overa, 100 F.3d at 420-22.
     Section 4B1.2 has been amended since 1987, but not in any
way that helps the government’s argument. The section now
defines “crime of violence” to mean an offense that has the use
of force as an element or an offense that poses a serious
potential risk of physical injury. See U.S.S.G. § 4B1.2(a)
(2003). Courts frequently hold that certain sex offenses are
“crimes of violence” under this Guidelines section because the
crimes present a risk of injury, even though they do not involve
the use of force. See, e.g., United States v. Kirk, 111 F.3d
390, 394 (5th Cir. 1997) (holding that sexual contact with a
child did not involve the use of force but did carry a serious
potential risk of physical injury).

                                15
enumerated crime of violence, “sexual abuse of a minor.”     The

reason for the connection is that the 2001 version of § 2L1.2’s

“crime of violence” definition links these two offenses, stating

that “crime[s] of violence . . . include[] . . . forcible sex

offenses (including sexual abuse of a minor).”    Statutes

involving child sexual abuse typically do not require violence or

threats, merely improper contact.    One could therefore argue that

“forcible sex offenses,” which “include” such crimes, likewise do

not require violent force.   Equally, one could also reconcile the

two offenses by contending that “sexual abuse of a minor”

qualifies as a crime of violence only when it is “forcible.”

This court, like others, has rejected the latter argument,

reasoning that “[s]exual abuse of a minor--forcible or not--

constitutes a crime of violence.”    Rayo-Valdez, 302 F.3d at 316;

see also United States v. Pereira-Salmeron, 337 F.3d 1148, 1152

(9th Cir. 2003) (explaining that sexual abuse of a minor is a

crime of violence regardless of “whether it includes--or even

explicitly excludes--‘force’ as an element”).    That is, courts

take the view that sexual abuse of a minor is essentially sui

generis and does not need to be otherwise “forcible.”    And

indeed, in the 2003 version of § 2L1.2’s “crime of violence”

definition, the Sentencing Commission has de-coupled the two

offenses, listing each separately.    See U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii) (2003).   This change was intended to “make[] clear”

that offenses like sexual abuse of a minor qualify as crimes of

                                16
violence regardless of whether they involve the use of force.

See U.S.S.G. app. C, amend. 658, at 401-02 (2003).     None of this

tells us what a “forcible sex offense” is, however, except

perhaps that “sexual abuse of a minor” might not otherwise

qualify as one.

     In the absence of an authoritative definition of “forcible

sex offense,” we believe that the most natural reading of the

phrase suggests a type of crime that is narrower than the range

of conduct prohibited under § 566.040.   In particular, it seems

that the adjective “forcible” centrally denotes a species of

force that either approximates the concept of forcible compulsion

or, at least, does not embrace some of the assented-to-but-not-

consented-to conduct at issue here.   See BLACK’S LAW DICTIONARY 657

(7th ed. 1999) (defining “forcible” as “[e]ffected by force or

threat of force against opposition or resistance”).     We recognize

that in the last few decades, a number of jurisdictions have

modernized and liberalized their rape laws (or the judicial

constructions of them), in a few cases even eliminating the force

requirement.   E.g., State ex rel. M.T.S., 609 A.2d 1266, 1276-77

(N.J. 1992).   A significant number of states, like Missouri, have

supplemented statutes requiring force, threats, or compulsion

with separate sexual assault statutes that criminalize certain

unconsented-to (or legally unconsented-to) intercourse that does

not involve extrinsic force.   See, e.g., FLA. STAT. ANN.

§ 794.011(5) (West 2000 & Supp. 2003); N.Y. PENAL LAW § 130.20

                                17
(McKinney 2004); WISC. STAT. ANN. § 940.225(3) (West 1996 & Supp.

2003).    To our minds, these facts underscore that when one

specifically designates a sex offense as a “forcible” sex

offense, one probably does so in order to distinguish the subject

sex offense as one that does require force or threatened force

extrinsic to penetration.12   Thus, the phrase “forcible sex

offense” used in paragraph (II) of § 2L1.2 cmt. n.1(B)(ii) may

well be a term of art that encompasses a narrower range of

conduct than does paragraph (I)’s general definition referring to

crimes that “ha[ve] as an element the use, attempted use, or

threatened use of physical force against the person of another.”

See supra note 8.    In any event, regardless of the precise

boundaries of the phrase, we do not think that all of the conduct

criminalized by § 566.040 can be considered a “forcible sex


     12
          See, e.g., Michael M. v. Superior Court, 450 U.S. 464,
501 n.8 (1981) (Stevens, J., dissenting) (referring to “forcible
rape . . . and nonforcible, but nonetheless coerced, sexual
intercourse” (emphasis added)); Soto v. Superior Court, 949 P.2d
539, 543-44 (Ariz. Ct. App. 1997) (holding that a sexual assault
is a “forcible sexual assault” when the victim, in addition to
not consenting, is coerced by the use or threatened use of
force); In re Jessie C., 565 N.Y.S.2d 941, 943 (App. Div. 1991)
(stating that a sexual misconduct statute criminalizing sex
without valid consent “proscribes both forcible and nonforcible
sexual intercourse”); State v. Philbrick, 402 A.2d 59, 63 (Me.
1979) (holding that a crime qualifies as a “forcible sex offense”
when it involves “force in fact”). These authorities are
relevant--just like dictionaries and other interpretive aids--
because they provide evidence of how speakers typically use the
term we are interpreting. We do not claim that “forcible sex
offense” is always used in this way, but we believe that the
usage reflected in the above citations illustrates the central
meaning of the term.

                                 18
offense.”   Therefore, we cannot affirm the defendant’s sentence

on this alternative basis.

     On remand, the government is free to pursue the eight-level

“aggravated felony” sentence enhancement.   We express no opinion

regarding whether that enhancement would be proper.13

B.   Constitutionality of 8 U.S.C. § 1326(b)

     8 U.S.C. § 1326(a) makes it a crime, punishable by up to two

years’ imprisonment, for an alien to reenter the country without

permission after having previously been removed.   Section

1326(b)(1)-(2) provides that aliens whose prior removal followed

a conviction of certain crimes may be imprisoned for

substantially longer terms.   In Almendarez-Torres v. United

States, the Supreme Court held that § 1326(b) set forth

sentencing factors rather than separate offenses, and that the

statute was constitutional.   See 523 U.S. 224, 235, 247 (1998).

     13
          As noted earlier, supra note 3, one route to the eight-
level “aggravated felony” enhancement would be to show that
Sarmiento-Funes had been convicted of “rape” within the
contemporary meaning of that term. See 8 U.S.C. § 1101(a)(43)(A)
(listing “rape” as an “aggravated felony”); Taylor, 495 U.S. at
598 (holding that the term “burglary” in a sentence enhancement
statute should be understood according to its “generic,
contemporary meaning”). Indeed, the Ninth Circuit’s Yanez-
Saucedo decision, heavily relied upon by the district court and
the government, actually involves the meaning of “rape” in the
context of § 1101(a)(43)(A). Even as traditionally conceived,
the law of rape recognized certain cases in which actual force
was not required. Therefore, our holding today regarding the
“use of force” language in U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) does
not necessarily mean that Sarmiento-Funes did not commit “rape”
for purposes of § 1101(a)(43)(A). It is for the district court
to resolve in the first instance whether an eight-level
enhancement is proper.

                                19
     Raising an objection that was not raised below, Sarmiento-

Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on

its face and as applied, in light of Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), in which the Supreme Court held that facts

that increase a sentence beyond the statutory maximum must as a

general matter be found by a jury.    But Apprendi explicitly

refrained from overruling Almendarez-Torres, and this circuit has

consistently rejected Sarmiento-Funes’s position, stating that it

is for the Supreme Court to overrule Almendarez-Torres.    See,

e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Sarmiento-Funes concedes that the issue is foreclosed by circuit

precedent, and he presents the issue solely to preserve it for

possible further review.

                           III. CONCLUSION

     For the foregoing reasons, the defendant’s conviction is

AFFIRMED and his sentence is VACATED.   The case is REMANDED to

the district court for resentencing.



ENDRECORD




                                 20
EMILIO M. GARZA, Circuit Judge, dissenting:

     I conclude that the Missouri sexual assault statute, which

punishes a person for having “sexual intercourse with another

person knowing that he does so without that person’s consent,”

MO. ANN. STAT. § 566.040(1) (West 1999), is a crime of violence

under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), because it has as

an element the use of force.    I accept, for purposes of this

opinion, the majority opinion’s rule, based upon the rationale in

United States v. Houston, 364 F.3d 243 (5th Cir. 2004), that

“intercourse does not involve the use of force when it is

accompanied by consent-in-fact.”      However, I do not accept the

majority opinion’s holding that the Missouri sexual assault

statute does not require the use of force.

     The majority opinion’s holding is based upon its conclusion

that a defendant can be convicted under the Missouri sexual

assault statute in cases where the victim gave consent-in-fact.

This conclusion, based on Houston, necessarily assumes that a

victim under the Missouri sexual assault statute can give

consent-in-fact.   Houston turned on the fact that an underage

victim of statutory rape was capable of giving consent-in-fact to

the sexual intercourse.    In contrast, as explained below, a

victim under the Missouri sexual assault statute is, by

definition and as a matter of law, unable to give consent-in-fact

to sexual intercourse.    See MO. ANN. STAT. § 556.061(5) (West


                                 21
1999).   Therefore, sexual assault under the Missouri statute

involves the use of force and is a crime of violence.

     Houston holds that a statutory rape victim can give consent-

in-fact to sexual intercourse even though the victim cannot give

legal consent, and, as a result, that statutory rape is not a

crime of violence.     See Houston, 364 F.3d at 247.

Houston distinguished between legal consent and consent-in-fact

based upon the assumption that the victim was able to consciously

decide whether or not to engage in sexual intercourse with the

defendant, and that the intercourse would be consensual were it

not for her age.     See id. at 247-48.   That is, consent-in-fact

only accompanies sexual intercourse in those situations where the

parties were able to decide for themselves whether or not they

wished to participate.

     However, under the Missouri sexual assault statute a victim

cannot give consent-in-fact because, by definition, the victim is

unable to decide whether to participate in the sexual

intercourse.   In Missouri assent to sexual intercourse is not

legal consent in situations where the defendant knew (or it was

manifest) that the victim “lacked the mental capacity to

authorize” the sexual intercourse or because of certain specified

impairments was “unable to make a reasonable judgment as to the

nature or harmfulness of” the sexual activity.     MO. ANN. STAT. §

556.061(5) (a), (b) (West 1999).


                                  22
      Under the Missouri statutory definition of consent, even

though the victim may have demonstrated some physical assent to

the sexual intercourse, the victim was “unable to make a

reasonable judgment” or “lacked the mental capacity” to do so and

thus did not make the mental decision to engage in intercourse.14

Id.   Furthermore, Missouri’s definition of consent requires that

the defendant either knew of the impairment in the victim’s

cognitive ability or that the condition was “manifest.”    Id.   If

a person is convicted under Missouri’s sexual assault statute,

the victim was unable to give consent-in-fact and the defendant

knew so.15   Such a conviction involves a use of force.

Therefore, I believe that a Missouri sexual assault conviction is

a crime of violence for purposes of the 16-level enhancement

under § 2L1.2.

      I respectfully dissent.




      14
         For example, in normal circumstances a twenty-five year
old woman is able to consent to sex. However, under Missouri
law, if she is “unable to make a reasonable judgment” due to
intoxication, for example, she is unable to consent-in-fact to
sexual intercourse.
      15
         The Missouri definition of consent also provides that
assent does not constitute legal consent when “[i]t is induced by
force, duress or deception.” MO. ANN. STAT. § 556.061(5)(c) (West
1999). Even assent procured by means of deception is not
consent-in-fact because the defendant deprives the victim of the
opportunity to make a mental decision whether or not to
participate in the sexual intercourse. The victim is equally
unable to give consent-in-fact whether such incapacity is caused
by intoxication, mental retardation, or deception.

                                 23
