                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4102


UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

           v.

OSMIN ALFARO,

                Defendant-Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-
cr-00221-PWG-1)


Argued:   March 24, 2016                  Decided:   August 29, 2016


Before Traxler, Shedd, and Floyd, Circuit Judges.


Affirmed by published opinion. Judge Traxler wrote the opinion
in which Judge Shedd and Judge Floyd joined.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.    James I. Pearce, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, UNITED
STATES   DEPARTMENT  OF   JUSTICE, Washington,  D.C.;  Rod   J.
Rosenstein, United States Attorney, Baltimore, Maryland, Sujit
Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
TRAXLER, Circuit Judge:

     Osmin Alfaro, a native of El Salvador, entered the United

States    illegally         when    he        was    a   teenager.        In     2003,     he   was

convicted     in       Maryland          of     third-degree           sexual     offense       for

sexually      assaulting           his        then-estranged           wife.       Alfaro       was

deported in 2008, after failing to register as a sex offender in

Maryland,     and      he    illegally          re-entered         the    country     in    2010.

Alfaro came to the attention of federal authorities in 2014, and

he was charged with, and ultimately pleaded guilty to, one count

of failing to register as a sex offender, see 18 U.S.C. § 2250,

and one count of illegal re-entry, see 8 U.S.C. § 1326.                                     After

concluding that Alfaro’s prior felony conviction qualified as a

crime    of   violence        and    applying            a    16-level     enhancement,         see

U.S.S.G.      §     2L1.2(b)(1)(A)(ii)                   (2014),    the        district     court

sentenced Alfaro to 46 months’ imprisonment.                             Alfaro appeals his

sentence, arguing that the district court erred in concluding

that his previous conviction amounted to a crime of violence.

We affirm.

                                                    I.

        The   Sentencing            Guidelines               provide      for     a      16-level

enhancement       in    illegal          entry      cases      where     the    defendant       was

deported after “a conviction for a felony that is . . . a crime

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

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

                                                    2
     any of the following offenses under federal, state, or
     local    law:    murder,   manslaughter,   kidnapping,
     aggravated assault, forcible sex offenses (including
     where consent to the conduct is not given or is not
     legally valid, such as where consent to the conduct is
     involuntary, incompetent, or coerced), statutory rape,
     sexual abuse of a minor, robbery, arson, extortion,
     extortionate extension of credit, burglary of a
     dwelling, or any other offense under federal, state,
     or local law that has as an element the use, attempted
     use, or threatened use of physical force against the
     person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

     To determine whether Alfaro’s Maryland conviction qualifies

as a crime of violence under § 2L1.2, we apply the familiar

categorical   approach     and     compare    the    elements   of     the   prior

offense to the elements of the generic federal offense.                        The

prior   conviction     qualifies    as   a   crime   of   violence     under   the

categorical approach if the elements of the underlying statute

are the same as or narrower than the definition of the generic

offense.     See United States v. Flores-Granados, 783 F.3d 487,

491 (4th Cir.), cert. denied, 136 S. Ct. 224 (2015).                    “However,

if the state statute criminalizes a broader scope of conduct

than the Guideline crime then it is not categorically a crime of

violence.”       Id.    (internal    quotation       marks   and      alterations

omitted)

     The   Maryland     statute     under    which    Alfaro    was    convicted

provides that:

     (a) A person may not:


                                         3
             (1) (i) engage in sexual contact with                another
             without the consent of the other; and

                  (ii) 1.   employ  or   display  a   dangerous
                  weapon, or a physical object that the victim
                  reasonably believes is a dangerous weapon;

                       2. suffocate, strangle, disfigure, or
                  inflict serious physical injury on the
                  victim   or   another in   the  course  of
                  committing the crime;

                       3. threaten, or place the victim in
                  fear, that the victim, or an individual
                  known to the victim, imminently will be
                  subject      to      death,       suffocation,
                  strangulation,     disfigurement,      serious
                  physical injury, or kidnapping; or

                       4. commit the        crime    while    aided     and
                  abetted by another;

             (2) engage in sexual contact with another if the
             victim is a mentally defective individual, a
             mentally    incapacitated    individual,   or    a
             physically helpless individual, and the person
             performing the act knows or reasonably should
             know   the   victim   is  a    mentally  defective
             individual, a mentally incapacitated individual,
             or a physically helpless individual;

             (3) engage in sexual contact with another if the
             victim is under the age of 14 years, and the
             person performing the sexual contact is at least
             4 years older than the victim;

             (4) engage in a sexual act with another if the
             victim is 14 or 15 years old, and the person
             performing the sexual act is at least 21 years
             old; or

             (5) engage in vaginal intercourse with another if
             the victim is 14 or 15 years old, and the person
             performing the act is at least 21 years old.

Md.   Code   Ann.,   Crim.   Law   §   3-307   (2002).       At   the   time   of

Alfaro’s     offense,    “sexual       contact”     was   defined       as     “an

                                       4
intentional touching of the victim’s or actor’s genital, anal,

or other intimate area 1 for sexual arousal or gratification, or

for the abuse of either party.”                       Md. Code. Ann., Crim. Law § 3-

301(f)(1) (2002).

       Because       §     3-307    lists       alternate      sets      of    elements             that

effectively         create       multiple       versions     of    the    crime         of    third-

degree sexual offense, reference to the statute alone does not

identify the set of elements that applied to Alfaro.                                          We are

thus       faced    with     a   “divisible”          statute,      a    circumstance               that

permits      us    to    modify     the     categorical       approach         and       consult      a

limited       universe       of     “extra-statutory              materials         .     .     .     to

determine          which     statutory          phrase      was    the        basis       for       the

conviction.”            Descamps v. United States, 133 S. Ct. 2276, 2285

(2013) (internal quotation marks omitted).

       The     record       in     this   case        includes      Alfaro’s         state-court

indictment and jury instructions, both of which are within the

universe      of     documents       that    we       may   consult.          See       Shepard       v.

United      States,        544   U.S.     13,     20-21     (2005).        These         materials

establish that Alfaro was convicted of violating § 3-307(a)(1),

but    do      not       further      narrow          the    offense.            Under          these


       1  Under Maryland law, “other intimate area” includes the
buttocks, see Bible v. State, 982 A.2d 348, 358 (Md. 2009), and
an intentional touching of an intimate area over the clothes
still amounts to sexual contact, see LaPin v. State, 981 A.2d
34, 36-37, 45 (Md. Ct. Spec. App. 2009).


                                                  5
circumstances, the categorical approach requires us to “consider

whether   the   full   range   of   conduct   covered    by   the   statutory

language, including the most innocent conduct proscribed by the

statute, qualifies” as a predicate offense.              United States v.

Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008).               Of the various

offenses identified by the Guidelines as crimes of violence,

“forcible sex offense” is the only one arguably applicable to

this case. 2

                                     II.

     On appeal, Alfaro concedes that violations of § 3-307(a)(1)

are “forcible” offenses for purposes of U.S.S.G. § 2L1.2.                  He

argues, however, that violations of the Maryland statute do not

qualify as “sex offenses.”          Relying on our decision in Diaz-

Ibarra, Alfaro contends that an intent to gratify sexual urges

is a necessary element of a “sex offense.”              As noted above, an

intent to abuse rather than an intent to gratify sexual urges

can support a conviction under the state statute, and Alfaro




     2    We reject the government’s argument that a violation
of § 3-307(a)(1) qualifies as a crime of violence because it
“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).    While the first three subsections of § 3-
307(a)(1) all require the use or threatened use of force, the
final subsection, which merely requires that the offense be
aided or abetted by another, contains no use-of-force element.
See Md. Code Ann., Crim. Law § 3-307(a)(1) (2002).


                                      6
therefore       argues     that    his    conviction            does    not        qualify     as     a

forcible sex offense under the categorical approach.

                                               A.

       In 2008, the Sentencing Commission resolved a circuit split

by amending § 2L1.2 to include the parenthetical statement that

the     forcible-sex-offense             category         includes           offenses         “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.”                U.S.S.G. app. C, vol. III, Amendment

722; see United States v. Chacon, 533 F.3d 250, 257 (4th Cir.

2008)      (pre-amendment        case    holding         that    a     sex    offense         may    be

“forcible”       even     without       the    use       of     physical          force). 3         The

Guideline thus clarifies the circumstances under which a sex

offense may be considered forcible, but it provides no insight

on    the   issue    at    the    heart       of    this       appeal    --        the   kinds       of

offenses that amount to “sex offenses.”

       As previously explained, we answer that question through

application of the categorical approach, comparing the statutory

definition      of   the    prior       conviction         to    the    definition            of    the

       3  In United States v. Shell, 789 F.3d 335 (4th Cir.
2015), we considered the meaning of “forcible sex offenses” as
used in U.S.S.G. § 4B1.2, the career-offender guideline. Noting
that the Sentencing Commission did not amend § 4B1.2 to include
the parenthetical statement added to § 2L1.2, we held that an
offense that could be “committed without physical force and
predicated on legally invalid consent” was not a “forcible sex
offense” as used in § 4B1.2. Id. at 345-46.


                                               7
generic federal offense -- here, “forcible sex offense.”                              In

cases where the enumerated generic offense is a traditional,

common-law crime, we define the generic federal offense “based

on how the offense is defined ‘in the criminal codes of most

states.’”        United States v. Peterson, 629 F.3d 432, 436 (4th

Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 598

(1990)).     “Forcible sex offense,” however, does not describe a

traditional       common-law       crime,    and    the      phrase   thus   does     not

invoke an established, generic structure.                       Because the phrase is

a   broad   and       inclusive     phrase   that       could    encompass   multiple,

divergent offenses in any given state, “it is difficult, if not

impossible,” to sift through the multitudes of qualifying state

offenses and identify a consensus set of the minimum elements

necessary to define the category.                   United States v. Rodriguez,

711 F.3d 541, 556 (5th Cir. 2013) (en banc) (“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.      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.” (citation omitted)).



                                             8
      Although       we   did   not    explicitly         note   the   difficulty       of

distilling the elements of non-traditional crimes, this court in

Chacon did not survey the states’ criminal codes to define the

“forcible” aspect of “forcible sex offenses,” but instead looked

to   the    plain,     ordinary   meaning       of    the   language    used     by    the

Guidelines.      See Chacon, 533 F.3d at 257 (“The term ‘forcible

sex offense’ is not defined in the Guidelines and thus must be

accorded its ordinary, contemporary meaning.”).                         We took the

same approach in Diaz-Ibarra when defining “sexual abuse of a

minor,”      another      enumerated    crime        of   violence     that    lacks    a

common-law      antecedent.           See   Diaz-Ibarra,         522   F.3d     at    348

(“Because the Sentencing Guidelines do not define the phrase

[‘sexual abuse of a minor’], we interpret it by employing the

common      meaning    of   the   words     that      the   Sentencing        Commission

used.”); cf. United States v. Rangel-Castaneda, 709 F.3d 373,

377-79 (4th Cir. 2013) (surveying state laws when determining

the generic definition of “statutory rape” as used in U.S.S.G. §

2L1.2). 4     This plain-meaning approach is consistent with that of


      4   While courts have disagreed about whether statutory
rape is a common-law offense, compare United States v.
Rodriguez, 711 F.3d 541, 559 (5th Cir. 2013) (en banc), with
United States v. Brooks, 841 F.2d 268, 269 (9th Cir. 1988) (per
curiam), the crime is of ancient lineage and has a well-
understood traditional meaning – carnal knowledge of a child
under the age of consent, see Rodriguez, 711 F.3d at 570-71
(Graves, J., concurring in part and concurring in the judgment);
Brooks, 841 F.2d at 269.       Looking to the states’ various
(Continued)
                                            9
other circuits.               See United States v. Ramirez-Garcia, 646 F.3d

778, 783 (11th Cir. 2011) (“For offenses not developed in the

common       law,       courts     define    a    generic      offense      based        on   the

ordinary,         contemporary,       and    common       meaning      of    the    statutory

words    .    .     .    .”    (internal    quotation         marks    omitted));         United

States v. Trinidad-Aquino, 259 F.3d 1140, 1144 (9th Cir. 2001)

(where sentencing enhancement turns on enumerated offense that

is not “a traditional common law crime,” the enumerated offense

“can     only           be     construed         by     considering         the     ordinary,

contemporary,            and     common    meaning       of   the     language”);         United

States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001)

(“Martinez-Carillo’s state conviction squarely fits within the

federal understanding of the phrase ‘sexual abuse of a minor,’

which adopts the ordinary, contemporary, and common meaning of

the words.”); accord Rodriguez, 711 F.3d at 556; United States

v.   Romero–Hernandez,             505    F.3d        1082,   1087    (10th       Cir.    2007);

United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir.

2005); United States v. Londono-Quintero, 289 F.3d 147, 153 (1st

Cir. 2002).




formulations to determine the generic federal definition of
statutory rape thus does not present the same difficulties as
does identifying a consensus set of elements defining “forcible
sex offense” or “sexual abuse of a minor.”


                                                 10
       Accordingly, following the approach laid out in Chacon, we

turn       to    the    plain    and    ordinary       meaning      of   the     Guidelines’

language to determine whether a conviction under Md. Code Ann.,

Crim. Law § 3-307(a)(1) qualifies as a “forcible sex offense”

for purposes of U.S.S.G. § 2L1.2. 5

                                             B.

       The        ordinary      construction      of    the    “sex      offense”       phrase

suggests that it simply refers to criminal offenses involving

sexual      conduct.         See   Black’s     Law     Dictionary        (10th    ed.    2014)

(defining “sexual offense” as “[a]n offense involving unlawful

sexual conduct, such as prostitution, indecent exposure, incest,

pederasty,             and   bestiality”);           American        Heritage        College

Dictionary (3d ed. 1997) (defining “sex” as, inter alia, “[t]he

sexual urge or instinct as it manifests itself in behavior”).

While that definition is expansive, the language and history of

§ 2L1.2 make it clear that “forcible sex offenses” is a broad

category encompassing a wide range of statutory offenses.                                After

all, the Sentencing Commission did not limit its definition of

“crime          of   violence”     to   include      only     the    most      serious    sex


       5  In Chacon, we concluded that the word “forcible” did
not require the use of physical force as it includes compulsion
effectuated through power or pressure. See Chacon, 533 F.3d at
257.   However, because the defendant did not dispute that his
Maryland conviction for second-degree sexual offense qualified
as a “sex offense,” Chacon did not offer a comprehensive
definition of the full phrase “forcible sex offense.” See id.


                                             11
offenses, such as rape, but instead included all sex offenses

that are forcibly committed.               Moreover, the Commission further

confirmed the broad reach of the category by amending the re-

entry Guideline to clarify that a sex offense may be a forcible

offense    even   in    the      absence      of    physical    force    and     in    the

presence of factual (but legally invalid) consent.                       See U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iii).

      Indeed, the circuits considering the question have defined

the     “sex   offense”     portion      of        “forcible    sex    offense”       very

broadly.       For example, the Fifth Circuit defines “sex offense”

as an “offense proscribing sexual conduct,” United States v.

Garza-Guijan, 714 F.3d 332, 334 (5th Cir. 2013), while the Tenth

Circuit    defines     it   as    “an   offense       involving       unlawful    sexual

conduct,” Romero-Hernandez, 505 F.3d at 1087 (internal quotation

marks    and   alteration     omitted).            Similarly,    in    the   Ninth     and

Eleventh Circuits, a “sex offense” is an offense involving a

“sexual act,” United States v. Quintero-Junco, 754 F.3d 746, 753

(9th Cir. 2014) or “sexual contact,” United States v. Contreras,

739 F.3d 592, 597 (11th Cir. 2014).

      Alfaro    insists,      however,     that       these    definitions       of   “sex

offense” are too broad.           Relying on our decision in Diaz-Ibarra,

Alfaro contends that an intent to gratify sexual urges is a

necessary element of a “sex offense.”



                                           12
     The    question     in    Diaz-Ibarra       was   whether   the    defendant’s

convictions for attempted child molestation qualified as “sexual

abuse of a minor” and thus a crime of violence under U.S.S.G. §

2L1.2.     (Like the “forcible sex offense” phrase at issue in this

case, “sexual abuse of a minor” is identified as a crime of

violence by the commentary to U.S.S.G. § 2L1.2.)                   Observing that

the common meaning of the word “sexual” was “of or relating to

the sphere of behavior associated with libidinal gratification,”

522 F.3d at 349 (internal quotation marks omitted), the Diaz-

Ibarra court defined the phrase “sexual abuse of a minor” as the

“physical or nonphysical misuse or maltreatment of a minor for a

purpose     associated      with   sexual        gratification,”       id.   at   352

(internal quotation marks omitted).               Alfaro argues that there is

no meaningful difference between “sex” and “sexual,” and that

the same meaning must be applied to both words, particularly

since the words are used in the same sentence in the Guidelines

commentary.        Accordingly, Alfaro argues that to qualify as a

forcible     sex    offense     under   the       Guidelines,    the     underlying

offense must require that the prohibited conduct be committed

for a purpose associated with sexual gratification.                     And because

§ 3-307(a)(1) can be violated with an intent to abuse rather

than an intent to gratify sexual urges, Alfaro contends that his

conviction    does    not     qualify   as   a    forcible   sex   offense.       We

disagree.

                                        13
       While    the    words       “sex”     and    “sexual”       may    have      similar

meanings in certain contexts, the Diaz-Ibarra court was defining

the phrase “sexual abuse of a minor,” while we are defining the

phrase    “forcible         sex    offense.”             Those     phrases     are    very

different,       and         those          differences           require        different

interpretations        of    “sex”    and    “sexual.”           See   Yates   v.    United

States, 135 S. Ct. 1074, 1082 (2015) (“[I]dentical language may

convey    varying       content       when        used    in     different       statutes,

sometimes even in different provisions of the same statute.”).

       “Sexual abuse of a minor,” the phrase at issue in Diaz-

Ibarra, is a “broad” phrase “capturing physical or nonphysical

conduct,” United States v. Perez-Perez, 737 F.3d 950, 953 (4th

Cir.   2013),    and    it    is     the    sexual-gratification            element   that

polices the line between lawful and unlawful conduct.                               Indeed,

as the court made clear in Diaz-Ibarra, the intent to gratify

sexual urges is central to the offense of sexual abuse of a

minor:    “The clear focus of the phrase [‘sexual abuse’] is on

the intent of the abuser -- sexual gratification -- not on the

effect on the abused.             However one styles it, ‘sexual abuse’ is

an intent-centered phrase; the misuse of the child for sexual

purposes completes the abusive act.”                     Id. at 350.        The court in

Diaz-Ibarra thus did not hold that the word “sexual” must always

and in all circumstances be defined to include an intent to

gratify sexual urges; it held that an intent to gratify sexual

                                             14
urges       is    central   to       and    therefore      is   part   of     the    ordinary

meaning          of   the   phrase         “sexual    abuse.”          See     id.       at   349

(explaining that the court must “consider the phrase as a whole

to arrive at its meaning”).

       An intent to gratify sexual urges, however, is not central

to     the       category      of     offenses       qualifying     as       “forcible        sex

offenses.”            Although this circuit has not previously formulated

a comprehensive definition of “forcible sex offense,” we have

noted that the phrase is “intended to connote rape or other

qualifying conduct.”                Rangel-Castaneda, 709 F.3d at 380; accord

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th

Cir. 2007) (“[R]ape is a ‘sex offense,’ as the term is commonly

understood.”).           Thus, however “forcible sex offense” is defined,

that definition must, at the very least, be broad enough to

include rape in its scope.                     While there is variation in the

states’       definitions        of    rape    (however     labeled),        not     a    single

state includes a sexual-gratification element when defining the

most       serious     forms    of    the     offense. 6        Because      the    intent     to


       6  See Ala. Code § 13A-6-61 (first-degree rape); Alaska
Stat. Ann. § 11.41.410 (first-degree sexual assault); Ariz. Rev.
Stat. Ann. § 13-1406 (sexual assault); Ark. Code Ann. § 5-14-
103(a) (rape; no sexual-gratification element if intercourse
involved); Cal. Penal Code § 261(a) (rape); Colo. Rev. Stat.
Ann. § 18-3-402(1)(a) (sexual assault; no sexual-gratification
element if penetration involved); Conn. Gen. Stat. Ann. § 53a-
70(a)(1) (first-degree sexual assault); Del. Code Ann. tit. 11,
§ 773 (first-degree rape); Fla. Stat. Ann. § 794.011 (sexual
(Continued)
                                                15
gratify sexual urges is simply not relevant to the most serious

forms   of   the   paradigmatic   forcible   sex   offense,   we   cannot




battery); Ga. Code Ann. § 16-6-1 (rape); Haw. Rev. Stat. Ann. §
707-730 (first-degree sexual assault); Idaho Code Ann. § 18-6101
(rape); 720 Ill. Comp. Stat. Ann. 5/11-1.20 (criminal sexual
assault); Ind. Code Ann. § 35-42-4-1 (rape); Iowa Code Ann. §
709.1 (sexual abuse); Kan. Stat. Ann. § 21-5503 (rape); Ky. Rev.
Stat. Ann. § 510.040 (first-degree rape); La. Stat. Ann. § 14:41
(rape); Me. Rev. Stat. tit. 17-A, § 253 (gross sexual assault);
Md. Code Ann., Crim. Law § 3-303 (first-degree rape); Mass. Gen.
Laws Ann. ch. 265, § 22 (rape); Mich. Comp. Laws Ann. § 750.520b
(first-degree criminal sexual conduct); Minn. Stat. Ann. §
609.342 (first-degree criminal sexual conduct; no sexual-
gratification element if sexual penetration involved); Miss.
Code. Ann. § 97-3-95 (sexual battery); Mo. Ann. Stat. § 566.030
(first-degree rape); Mont. Code Ann. § 45-5-503 (sexual
intercourse without consent); Neb. Rev. Stat. Ann. § 28-319
(first-degree sexual assault); Nev. Rev. Stat. Ann. § 200.366
(sexual assault); N.H. Rev. Stat. Ann. § 632-A:2 (aggravated
felonious sexual assault); N.J. Stat. Ann. § 2C:14-2(a)
(aggravated sexual assault); N.M. Stat. Ann. § 30-9-11 (criminal
sexual penetration); N.Y. Penal Law § 130.35 (first-degree
rape); N.C. Gen. Stat. Ann. § 14-27.21 (first-degree forcible
rape); N.D. Cent. Code Ann. § 12.1-20-03 (gross sexual
imposition); Ohio Rev. Code Ann. § 2907.02 (rape); Okla. Stat.
Ann. tit. 21, § 1111 (rape); Or. Rev. Stat. Ann. § 163.375
(first-degree rape); 18 Pa. Stat. and Cons. Stat. Ann. § 3121
(rape); 11 R.I. Gen. Laws Ann. § 11-37-2 (first-degree sexual
assault); S.C. Code Ann. § 16-3-652 (criminal sexual conduct);
S.D. Codified Laws § 22-22-1 (rape); Tenn. Code Ann. § 39-13-502
(aggravated rape); Tex. Penal Code Ann. § 22.021 (aggravated
sexual assault); Utah Code Ann. § 76-5-402 (rape); Vt. Stat.
Ann. tit. 13, § 3252 (sexual assault); Va. Code Ann. § 18.2-61
(rape); Wash. Rev. Code Ann. § 9A.44.040 (first-degree rape; no
sexual-gratification element if vaginal intercourse involved);
W. Va. Code Ann. § 61-8B-3 (first-degree sexual assault; no
sexual-gratification element if sexual intercourse involved);
Wis. Stat. Ann. § 940.225 (first-degree sexual assault; no
sexual-gratification element if intercourse involved); Wyo.
Stat. Ann. § 6-2-302 (first-degree sexual assault; no sexual-
gratification element if intercourse involved).

                                   16
conclude that an intent to gratify sexual urges is part of the

ordinary meaning of “forcible sex offense.”

     Moreover, since no state requires proof of an intent to

gratify sexual urges for a rape conviction, accepting Alfaro’s

argument would exclude all convictions for the most serious of

all forcible sex offenses from the definition of “forcible sex

offense,” while at the same time permitting many less-serious

crimes to be so classified. 7   We decline to endorse a definition

that would lead to such illogical results. 8       Cf. Voisine v.


     7    In many states, less serious sexual offenses -- those
involving touching rather than penetration, for example -- do
include the intent to gratify sexual urges as an element of the
offense.    See, e.g., Ind. Code Ann. § 35-42-4-8 (sexual
battery); Kan. Stat. Ann. § 21-5505 (sexual battery); Ky. Rev.
Stat. Ann. §§ 510.110 & 510.010(7) (sexual abuse); Neb. Rev.
Stat. Ann. §§ 28-320 & 28-318(5) (second- and third-degree
sexual assault); N.C. Gen. Stat. Ann. § 14-27.33 (sexual
battery); N.D. Cent. Code Ann. §§ 12.1-20-07 & 12.1-20-02(5)
(sexual assault); Or. Rev. Stat. Ann. §§ 163.427 & 163.305(6)
(sexual abuse); 18 Pa. Stat. and Cons. Stat. Ann. §§ 3126 & 3101
(indecent assault); 11 R.I. Gen. Laws Ann. §§ 11-37-4 & 11-37-
1(7) (second-degree sexual assault); Tenn. Code Ann. §§ 39-13-
505 & 39-13-501(6) (sexual battery); Va. Code Ann. §§ 18.2-67.4
& 18.2-67.10(6) (sexual battery); W. Va. Code Ann. §§ 61-8B-7 &
61-8B-1 (6) (sexual abuse).

     8    Alfaro suggests that rape offenses predicated on
sexual intercourse would qualify as forcible sex offenses
because intercourse requires “an erect penis, which necessarily
involves sexual gratification.” Brief of Appellant at 21. The
categorical approach, however, is concerned only with the
elements of the underlying offense, not the manner in which the
offense was actually committed.   See Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (“[T]he categorical approach . . .
focus[es] solely on whether the elements of the crime of
conviction sufficiently match the elements of [the] generic
(Continued)
                                 17
United States, 136 S. Ct. 2272, 2280 (2016) (addressing statute

barring    possession     of   firearms   by   those    convicted    of    a

“misdemeanor crime of violence” and rejecting definition of that

phrase    that   “risk[ed]      rendering      [the    statute]     broadly

inoperative in . . . 35 jurisdictions”).

     Accordingly, we reject Alfaro’s argument that to qualify as

a forcible sex offense under U.S.S.G. § 2L1.2, the underlying

offense must include as an element the intent to gratify sexual

urges.    Instead, we join the other circuits addressing the issue

and hold that, for purposes of the re-entry Guideline, a “sex

offense” is an offense involving sexual conduct with another

person.    See Quintero-Junco, 754 F.3d at 753; Contreras, 739

F.3d at 597; Garza-Guijan, 714 F.3d at 334; Romero-Hernandez,

505 F.3d at 1087.       And as the Guidelines commentary itself makes

clear, a sex offense is “forcible” if it is not consensual.               See

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (explaining that “forcible sex

offenses” includes offenses “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”).            While this




[offense and] ignor[es] the particular facts of the case.”).
Thus, even assuming that an intent to gratify sexual urges is
factually present in most rape cases, the absence of a sexual-
gratification   element  would  prevent  rape   offenses  from
qualifying as forcible sex offenses under Alfaro’s proposed
definition.


                                    18
definition is broad, its breadth is compelled by the expansive

language chosen by the Sentencing Commission -- language that,

in our view, provides no principled basis for us to narrow the

category of qualifying offenses.

                                                C.

       Having    defined      the       relevant        phrase,       we   turn    now    to   the

ultimate     question        in    this    case:         Whether       the      least    culpable

version of the crime defined by § 3-307(a)(1) -- sexual contact

while aided or abetted by another -- categorically qualifies as

a “forcible sex offense” and thus a “crime of violence” under

U.S.S.G. § 2L1.2.

       We   believe      that           question        must     be        answered      in    the

affirmative.          All forms of the offense as charged to the jury

require     nonconsensual           sexual      contact,        and    the      jury    was    thus

required to find that Alfaro engaged in sexual contact without

consent     in   order   to        convict      him.       Accordingly,           the    district

court did not err by treating Alfaro’s Maryland conviction as a

“forcible sex offense” under U.S.S.G. § 2L1.2(b)(1)(A).                                        See

Quintero-Junco,         754       F.3d     at     753     (statute         prohibiting         non-

consensual sexual contact with person over the age of 15 and

defining “sexual contact” as the direct or indirect touching of

“any    part     of    the        genitals,       anus     or     female        breast”       “fits

comfortably       within          the     broad      definition            of    forcible      sex

offense”); United States v. Diaz–Corado, 648 F.3d 290, 293 (5th

                                                19
Cir.   2011)   (per   curiam)    (state     statute   prohibiting   the   non-

consensual, through-clothing “touching of the victim’s intimate

parts . . . for the purposes of sexual arousal, gratification,

or abuse” constitutes a forcible sex offense under U.S.S.G. §

2L1.2); Romero-Hernandez, 505 F.3d at 1087-88 & n.4 (conviction

under statute prohibiting non-consensual touching, even through

clothing, of “victim’s intimate parts” for “purposes of sexual

arousal,    gratification,      or   abuse”   qualifies   as   forcible   sex

offense).

                                     III.

       For the foregoing reasons, we find no error by the district

court, and we hereby affirm Alfaro’s sentence.



                                                                    AFFIRMED




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