    Case: 15-41125   Document: 00513897062     Page: 1   Date Filed: 03/03/2017




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

                                No. 15-41125                           FILED
                                                                   March 3, 2017
                                                                  Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

JUAN ALAY, Also Known as Juan Alay-Mendez,

                                          Defendant–Appellant.




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




Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Juan Alay was convicted of illegal reentry. The district court applied a
crime-of-violence (“COV”) enhancement under the sentencing guidelines based
on Alay’s conviction of rape in California. Alay appeals the sentence by chal-
lenging the enhancement, asserting that conviction under the California stat-
ute is possible with only a negligent mens rea, while application of a COV
enhancement requires a more culpable mental state, thus rendering the COV
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                                       No. 15-41125
enhancement impermissible under the categorical approach in Mathis v.
United States, 136 S. Ct. 2243 (2016). We affirm.

                                              I.
       Alay pleaded guilty of illegal reentry in violation of 8 U.S.C. § 1326. The
presentence report (“PSR”) recommended a 16-level enhancement. Alay had
been deported for a conviction of rape under California Penal Code § 261(a)(3). 1
The probation officer deemed that to be a COV under U.S. Sentencing Guide-
lines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii) and recommended the enhancement, be-
cause a person convicted of illegal reentry faces a 16-level enhancement if the
crime for which he was deported was a COV.
       The guidelines define a COV to be
    murder, manslaughter, kidnapping, aggravated assault, forcible sex of-
    fenses . . . , 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.
Id. cmt. n.1(B)(iii). Further, the guidelines define “forcible sex offense[]” as an
offense “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.” Id.

       Section 261(a)(3) defines rape as “an act of sexual intercourse accom-
plished with a person not the spouse of the perpetrator . . . [w]here a person is
prevented from resisting by intoxicating or anesthetic substance . . . and this
condition was known, or reasonably should have been known, by the accused.”
Alay objected to the enhancement, stating that a conviction under Section
261(a)(3) does not qualify as a COV because it can be committed with a



       1Neither party contests that Alay’s previous conviction was under this specific portion
of the California Penal Code.
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                                 No. 15-41125
negligent belief that the victim could resist, making it broader than the defini-
tion of “forcible sex offense” within the notes to U.S.S.G. § 2L1.2. At sentenc-
ing, Alay repeated the objection, for substantially the same reasons. The dis-
trict court overruled the objection and sentenced him to 41 months, a within-
guidelines sentence. Without the COV enhancement, the guideline range
would have been 15–21 months.

                                       II.
      Because Alay objected to the COV enhancement both when it first ap-
peared in the PSR and at sentencing, he has preserved the objection, and we
review his sentence de novo. United States v. Hernandez-Rodriguez, 788 F.3d
193, 195 (5th Cir. 2015). In addition, “[w]e review the district court’s charac-
terization of a prior offense as a [COV] de novo.” United States v. Flores-Gallo,
625 F.3d 819, 821 (5th Cir. 2010) (per curiam).

      We take a “categorical” approach in “determining whether a prior convic-
tion qualifies as a [COV] under the Guidelines.” United States v. Rodriguez,
711 F.3d 541, 549 (5th Cir. 2013) (en banc). “Under the categorical approach,
the analysis is grounded in the elements of the statute of conviction rather
than a defendant’s specific conduct.” Id.

   [O]ur application of [the] categorical approach to a prior state conviction
   proceeds in the following four steps: First, we identify the undefined
   offense category that triggers the federal sentencing enhancement. We
   then evaluate whether the meaning of that offense category is clear
   from the language of the enhancement at issue or its applicable com-
   mentary. If not, we proceed to step two, and determine whether that
   undefined offense category is an offense category defined at common
   law, or an offense category that is not defined at common law. Third, if
   the offense category is a non-common-law offense category, then we
   derive its “generic, contemporary meaning” from its common usage as
   stated in legal and other well-accepted dictionaries. Fourth, we look to
   the elements of the state statute of conviction and evaluate whether
   those elements comport with the generic meaning of the enumerated
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                                       No. 15-41125
    offense category.
Id. at 552–53 (internal footnotes omitted).

       A necessary corollary is that there is no need to examine anything
beyond the plain meaning of the guidelines if the offense category is defined in
the guidelines. Commentaries to the guidelines, including the notes, are bind-
ing on us unless they are plainly inconsistent with the guidelines. United
States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc). If the
defendant was convicted under a statute matching the offense as the generic
offense defined in the guidelines, or if the statute of conviction was narrower
than in the guidelines, a COV enhancement is appropriate. 2

       For this COV enhancement to be appropriate, then, the elements of
Alay’s conviction under Section 261(a)(3) must match the offense categories in
Section 2L1.2(b)(1)(A)(ii) and its accompanying notes. Specifically, to uphold
the sentence, we would need to conclude that the California conviction qualifies
as a “forcible sex offense” under the guidelines. It does. 3

       The guidelines commentary defines a forcible sex offense to include any
offense “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. § 2L1.2 cmt. n.1(B)(iii). On its face, that definition is clear enough
that we can apply its plain meaning, as the first step of Rodriguez dictates. See
Rodriguez, 711 F.3d at 552–53. Forcible sex offenses are what the guidelines




       2See, e.g., United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006),
abrogated on other grounds by Rodriguez, 711 F.3d at 554–55.
       3 The parties also dispute whether Alay’s conviction could fit within the guidelines’
catch-all provision for other non-specific COVs: “any 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). Because the California conviction
qualifies as a forcible sex offense, we do not address this second issue.
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                                   No. 15-41125
say they are. See United States v. Herrera, 647 F.3d 172, 178 (5th Cir. 2011).
Nothing in Rodriguez changes Herrera.

      Having concluded that forcible sex offense is defined, all that remains is
to examine whether the elements of conviction under Section 261(a)(3) match
the definition of forcible sex offense under the guidelines. They do.

      The guideline definition of forcible sex offense is broad and includes no
requirement of mens rea. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Specifically,
the guidelines define a forcible sex offense as an offense “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.” Id. Notably absent from this defini-
tion is any mention of a required mental state; indeed, the plain meaning of
the guidelines is that a forcible sex offense is any offense that fits the definition
delineated above, regardless of mens rea.

      A defendant is guilty of rape under Section 261(a)(3) only if “a person is
prevented from resisting by intoxicating or anesthetic substance.” The statute
permits convictions only where consent was not given or where it was given
but was invalid because of intoxication—in other words, where consent was
“involuntary, incompetent, or coerced,” as under the guidelines. See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii). The other requirements of Section 261(a)(3)—that the
victim not be the perpetrator’s wife and that the perpetrator either knew, or
should have known, that the victim could not resist—serve only to narrow the
California offense beyond what the guidelines command. The elements match,
and Alay’s conviction qualifies as a COV.

      Alay presents three theories why we should vary from this approach; we
reject them all. First, he references Leocal v. Ashcroft, 543 U.S. 1, 11 (2004),
in which the Court construed the “crime of violence” definition in 18 U.S.C.
§ 16 to exclude crimes committed with a negligent mental state. But there is
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                                 No. 15-41125
no necessary inconsistency between the Supreme Court’s saying that a COV
cannot generally be committed with a negligent mens rea and having a specific
definition of a specific type of COV that states that a particular COV can be
committed with any sort of mental state. Moreover, the Court in Leocal gave
no indication that it intended its definition of COV in 18 U.S.C. § 16 to be a
general definition of COV within the entirety of the United States Code and
sentencing guidelines. There is no obvious reason why a definition of COV in
one statute should override a more specific definition in the guidelines, and
Alay does not offer us one.

      Second, Alay asks us to consider United States v. Dominguez-Ochoa,
386 F.3d 639 (5th Cir. 2004), and United States v. Ocampo-Cruz, 561 F. App’x
361 (5th Cir. 2014), in which we excluded crimes that have a mens rea of negli-
gence from being considered COVs. This comparison fails because the terms
being construed in those cases were undefined in the guidelines.

      Dominguez-Ochoa dealt with manslaughter, and whether involuntary
manslaughter counted as a COV, but there was no guideline definition of “man-
slaughter.” Dominguez-Ochoa, 386 F.3d at 643 (“As discussed, [the relevant
portion of the Guidelines] does not define manslaughter (or involuntary man-
slaughter).”). Because there was no definition, the panel looked to the generic,
contemporary meaning of manslaughter to determine whether involuntary
manslaughter qualified. Id. at 644–46.

      Similarly, Ocampo-Cruz examined whether a North Carolina statute
criminalizing assault with a deadly weapon inflicting serious injury consti-
tuted aggravated assault for purposes of a COV enhancement. Ocampo-Cruz,
561 F. App’x at 362.    Again, “aggravated assault” went undefined in the
guidelines, so the panel looked to the Model Penal Code to determine the gen-
eric, contemporary meaning. Id. If the guidelines did not define forcible sex

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                                No. 15-41125
offense, these cases would be relevant. But because they do, there is no reason
to look to outside sources to undermine their plain meaning.

      So too with Alay’s final contention—that we should look to the Model
Penal Code’s definition of rape by intoxication. This runs into the same prob-
lem that the argument based on Dominguez-Ochoa and Ocampo-Cruz does—
why, when the guidelines are so clear, should we gainsay them? True enough,
Section 213.1(1)(b) of the Model Penal Code requires that the defendant in a
rape-by-intoxication case have administered the intoxicant to the victim. The
guidelines, however, plainly do not require that―but only that “consent to the
conduct [be] not given or . . . not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 n.1(B)(iii).
Where an offense is defined so clearly, Rodriguez mandates that we follow the
plain meaning as defined in the guidelines, precisely to avoid this sort of
definitional morass. See Rodriguez, 711 F.3d at 552–53.

      The judgment of sentence is AFFIRMED.




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