                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2005

USA v. Remoi
Precedential or Non-Precedential: Precedential

Docket No. 03-2071




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                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 03-2071


      UNITED STATES OF AMERICA

                      v.

              OKOCCI REMOI,

                            Appellant



On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
         (Dist. Ct. No. 02-cr-00804-1)
 District Judge: Honorable James K. Gardner



  Submitted Under Third Circuit LAR 34.1(a)
                June 24, 2004
     Before: NYGAARD, McKEE, and CHERTOFF,*
                  Circuit Judges.

                   (Filed: April 13, 2005)

MAUREEN KEARNEY ROWLEY
Chief Federal Defender
DAVID L. McCOLGIN
Supervising Appellate Attorney
ELIZABETH T. HEY
Assistant Federal Defender
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
Suite 540 West, Curtis Center
Independence Square West
Philadelphia, PA 19106
Counsel for Appellant

PATRICK L. MEEHAN
United States Attorney
LAURIE MAGID
Deputy United States Attorney for Policy and Appeals
ROBERT A. ZAUZMER
Assistant United States Attorney Senior Appellate Counsel


       *
         This case was submitted to the panel of Judges Nygaard,
McKee, and Chertoff.          Judge Chertoff resigned after
submission, but before the filing of the opinion. The decision
is filed by a quorum of the panel. 28 U.S.C. § 46(d).
                               2
PAUL G. SHAPIRO
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee



                           OPINION


Per Curiam.

       Defendant Okocci Remoi, an alien, was convicted by a

jury of knowingly preventing and hampering his deportation

under a final order of removal. He was sentenced to sixty-four

months imprisonment and two years of supervised release.

Remoi appeals the conviction and sentence on the grounds (1)

that the District Court erroneously instructed the jury regarding

the burden of proof for Remoi’s entrapment defense, and (2)

that Remoi’s previous conviction for criminal sexual contact

with a helpless victim was incorrectly treated as a “crime of

                               3
violence” for sentencing purposes. We have jurisdiction of the

appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will

affirm the conviction. We vacate and remand to the District

Court for resentencing under United States v. Booker, 543 U.S.

__, 125 S. Ct. 738 (2005).

       Briefly, the facts are as follows. Remoi was lawfully in

the United States as a student at Rutgers University until he was

expelled from school in 1990, based upon convictions for two

counts of criminal sexual contact.       The Immigration and

Naturalization Service began deportation proceedings against

Remoi in 1994.      On September 21, 2001, the Board of

Immigration Appeals issued a final order of removal against

Remoi. He then filed a petition for habeas corpus (his third)

challenging that order, but did not obtain a stay of removal.

       By September 3, 2002, the INS had completed the

arrangements necessary to return Remoi to his country of origin,

                               4
Uganda. That day, two officers served Remoi with a warrant of

deportation. Remoi was aware there was no stay in effect, but

sought to telephone the district judge before whom his habeas

petition was pending. That request was denied by the agents,

who warned Remoi that if he failed to depart or sought to

hinder his departure, he could be charged with a crime.

Nevertheless, at the airport, Remoi physically resisted efforts to

place him on the airplane. The agents decided to return him to

custody.

       A grand jury charged Remoi, who was subject to a final

order of removal under 8 U.S.C. § 1227(a), with one count of

knowingly preventing and hampering his departure pursuant to

such an order, in violation of 8 U.S.C. § 1253(a)(1)(C). After

a two day jury trial, Remoi was convicted. At sentencing, the

District Court applied section 2L1.2 of the U.S. Sentencing

Guidelines Manual, and assigned a base offense level of eight.

                                5
Remoi’s sentence was subject to increase, however, because of

the nature of the crimes that formed the basis of his removal.

The Court adjusted the offense level upward by sixteen levels

based upon Remoi’s two prior convictions for criminal sexual

contact in New Jersey, which the Court determined were

“crimes of violence” within the meaning of section 2L1.2. The

District Judge reached that determination by considering the

presentence report, which explained that Remoi’s sexual contact

involved unauthorized sexual touching of female students who

were intoxicated or incapacitated. Remoi was sentenced to a

term of imprisonment of sixty-four months.

                              I.

       Remoi sought and obtained from the District Judge an

instruction on the defense of entrapment.          He argues

now—although he did not object in District Court—that the

instruction impermissibly shifted the burden of proof regarding

                              6
this defense from the government to the defendant.

       We need not determine whether the instruction taken as

a whole was error, let alone plain error, because Remoi was

simply not entitled to an instruction on the defense of

entrapment. The factual predicate to the entrapment defense is

some showing that the government induced the defendant to

commit the crime. See United States v. Wright, 921 F.2d 42, 44

(3d Cir. 1990). Here, there was no evidence of inducement.

       Remoi’s theory is that the agents induced him to commit

the crime by warning him against resistance to removal, and by

rejecting his unlawful request not to be removed. To put it

charitably, this argument is fanciful. There was no evidence

that the agents suggested to Remoi that if he resisted them he

might be able to avoid removal. To the contrary, they advised

him that resisting removal would be a violation of the law. The

agents also did not prompt Remoi to commit a crime when they

                              7
refused to delay his departure so that he could telephone a

judge. Remoi’s argument really boils down to the claim that by

enforcing the law, the agents prompted him to break it. That

reasoning refutes itself.

       Since Remoi was not entitled to any entrapment

instruction, any flaw in that instruction was not plain error. See

United States v. Armocida, 515 F.2d 49, 55 (3d Cir. 1975).

                               II.

       Although Remoi is on stronger ground in arguing that

the District Court erred by finding that his prior convictions

involved crimes of violence, his argument nevertheless fails. At

the time of his sentencing, section 2L1.2 of the U.S. Sentencing

Guidelines Manual, entitled “Unlawfully Entering or

Remaining in the United States,” provided for an enhanced

sentence when an alien unlawfully remained after being ordered

removed for committing a “crime of violence.” The Guidelines

                                8
defined a “crime of violence” as any of the following: “(I) 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, app. n.1(B)(ii) (2002).

       Sentencing under this provision, the District Court

concluded that Remoi had been convicted of crimes of violence

based on the facts underlying his previous convictions. Remoi

argues—and the Government essentially concedes for purposes

of argument—that the determination whether his prior

convictions fit within the definition of crimes of violence must

be undertaken on a categorical basis, looking only to the

elements of the offense of conviction and not the underlying

                               9
facts. That categorical approach is the one we have taken when

analyzing how state statutes fit within the Sentencing

Guidelines. United States v. Parson, 955 F.2d 858, 872–73 (3d

Cir. 1992); see also United States v. Rodriguez-Rodriguez, 323

F.3d 317, 318–19 (5th Cir. 2003). Thus, the District Court’s

determination can only be upheld if we can ascertain that the

state crimes of which Remoi was convicted fall within the

definition of crime of violence as a matter of its elements.

       This analysis requires three steps.       First, we must

establish for which specific crimes Remoi was convicted.

Second, we must interpret the necessary elements of those

crimes. Third, we must determine whether those elements

necessarily bring the state crime within one of the definitions of

section 2L1.2, as we construe them. See, e.g., Francis v. Reno,

269 F.3d 162, 171–72 (3d Cir. 2001).

                               A.

                               10
       At the time of Remoi’s convictions in 1990, New Jersey

law criminalized several forms of sexual contact, including both

the use of physical force or coercion and penetration with a

helpless victim. Section 2C:14-2c of the New Jersey statute

provided in pertinent part:

       An actor is guilty of sexual assault if he commits
       an act of sexual penetration with another person
       under any one of the following circumstances:
       (1) The actor uses physical force or coercion, but
       the victim does not sustain severe personal injury;
       (2) The victim is one whom the actor knew or
       should have known was physically helpless,
       mentally defective or mentally incapacitated . . .

N.J. Stat. Ann. §2C:14-2c (1990).

       The Government argues that we can narrow Remoi’s

convictions to subsection (2), dealing with a victim who was

“physically helpless,     mentally defective       or   mentally

incapacitated.” To accomplish that narrowing, we are directed

to the charging instrument on which Remoi was convicted in


                               11
1990. That charging document explicitly alleges two separate

violations of the criminal sexual contact statute based on contact

with victims who were “physically helpless.” (App. at 3).

       Even under the categorical approach, we have been

willing to consider charging documents in refining the state

offense which we examine. United States v. Preston, 910 F.2d

81, 85 (3d Cir. 1990); see also United States v. Spell, 44 F.3d

936, 939 (11th Cir. 1995). In this instance, we can rely on the

charging instrument not to establish the underlying facts, but

simply to narrow the statutory provision to which our

categorical analysis must apply. Accordingly, we proceed to

analyze, applying de novo review, the elements of N.J.S.A.

§2C:14-2c(2) and to see those elements fit within the

Guidelines’ definition of “crime of violence.”1 See United


       1
        We may take judicial notice of the charging instrument
as a court record that was submitted as part of Remoi’s habeas
                               12
States v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996).

                               B.

       New Jersey Statute section 2C:14-2c(1) requires the use

of “physical force” to effect an “act of sexual penetration.” But

subsection c(2)—under which Remoi was convicted—requires

instead that the victim of “penetration” have been “physically


petition in United States District Court. FED . R. EVID. 201.
Remoi argues that to do so is improper because the document
was not relied upon by the District Court at sentencing. We
disagree. Although the District Court’s analysis did not take
account of this judicial record, it would be pointless to remand
the case simply to have the District Judge take notice of that
which we may notice ourselves. See In re Indian Palms Assoc.,
Ltd., 61 F.3d 197, 205–06 (3d Cir. 1995) (“Judicial notice may
be taken at any stage of the proceeding, including on appeal, as
long as it is not unfair to a party to do so and does not
undermine the trial court's factfinding authority.”) (citations
omitted); Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001)
(“A court may take judicial notice of an adjudicative fact if that
fact is not subject to reasonable dispute . . . [and a] judicially
noticed fact must either be generally known within the
jurisdiction of the trial court, or be capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”).
                               13
helpless” or “mentally defective or incapacitated.” Thus, the

sexual contact for which Remoi was convicted does not require

physical force; it may be satisfied by proof that the contact

occurred through exploitation of the victim’s helplessness.

                                C.

       As we have noted, at the time of Remoi’s sentencing, the

Sentencing Guidelines interpreted the term “crime of violence”

as follows: “(I) 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, app. n.1(B)(ii) (2002).

       In effect, the Guidelines set forth two paths to finding a



                                14
state offense such as Remoi’s to be a crime of violence.2 Under

the former, we must assess whether the state crime has the use

or threat of “physical force” as an element of the offense. That

path is not applicable here because, as the Government

concedes, the literal language of N.J.S.A. 2C: 14-2c(2) does not

require physical force as an element. Indeed, it is the absence

of physical force as an element that distinguishes subsection


       2
         For an offense to qualify as a “crime of violence” under
section 2L1.2, it is enough that an offense either falls under the
general definition in the first subsection or is included among
the enumerated offenses in the second subsection. The logical
reading of the “crime of violence” definition in section 2L1.2
compels us to believe that the two subparts represent different
ways of defining “crime of violence.” We adopt the disjunctive
reading of the definition, a view adopted by other circuits that
have addressed the same issue. See United States v. Munguia-
Sanchez, 365 F.3d 877, 880–81 (10th Cir. 2004); United States
v. Vargas-Garnica, 332 F.3d 471, 473–74 (7th Cir. 2003);
United States v. Pereira-Salmeron, 337 F.3d 1148, 1151–53
(9th Cir. 2003); United States v. Fuentes-Rivera, 323 F.3d 869,
872 (11th Cir. 2003); United States v. Rayo-Valdez, 302 F.3d
314, 319–20 (5th Cir. 2002); United States v. Gomez-
Hernandez, 300 F.3d 974, 978–79 (8th Cir. 2002).
                               15
c(2) from subsection c(1).3

       If subsection c(2) is to be treated as a “crime of

violence,” therefore, it must be by way of the second path set

forth in the application note. That is, the state violation must

constitute a “forcible sex offense.” Remoi vigorously contends

that the generic term “forcible sex offense” excludes the state

crime under which he was convicted, i.e., sexual contact with a

“physically helpless,     mentally defective      or   mentally

incapacitated” victim. Instead, Remoi asserts that a “forcible

sex offense” requires that there be some element of physical

force applied against the victim, going beyond mere

exploitation of the victim’s helplessness.

       We disagree. As we have observed, the first subpart of


       3
         But see United States v. Rowland, 357 F.3d 1193,
1197–98 (10th Cir. 2004) (suggesting nonconsensual sexual
contact involves substantial risk of the application of physical
force).
                              16
the application note defined crime of violence in terms of

“physical force.” The second subpart—on which we rely

here—used the term “forcible” without the antecedent modifier

“physical.” Because this difference appeared within the same

application note, we must conclude that it was deliberate, and

that the Sentencing Commission did not mean to limit “forcible

sexual offenses” to those involving the application of direct

physical force, as opposed to some other type of compulsion.

Remoi’s reading of the Guidelines, to limit “forcible” to

“physically forcible,” would transform “forcible sexual

offenses” listed in subparagraph II of the application note to

section 2L1.2 into mere surplus to subparagraph I. We reject

this interpretation. “‘[C]ourts should avoid a construction of a

statute that renders any provision superfluous.’”       United

Steelworkers of Am. v. North Star Steel Co., 5 F.3d 39, 42 (3d

Cir. 1993) (quoting Pennsylvania v. United States Dept. of

                              17
Health & Human Servs., 928 F.2d 1378, 1385 (3d Cir. 1991)).

       Another feature of the text reinforces our view that

forcible penetration includes penetration effected by the

exploitation of helplessness. The application note expressly

defines “forcible sexual offenses” as “including sexual abuse of

a minor.” U.S.S.G. § 2L1.2, Application Note 1(B)(ii). Even

in the absence of physical force, therefore, sexual crimes

perpetrated against minors are deemed by the Sentencing

Commission to be per se “forcible offenses” and thus “crimes

of violence.”

       The underlying legal theory, of course, is that because a

minor lacks legal capacity to consent to sexual relations, any

such relations are ‘forcible.’” State v. Thomas, 731 A.2d 532,

534 (N.J. Super. Ct. App. Div. 1999) (“[A] minor . . . is

considered incapable of giving such permission or consent

under our law.”) (citing N.J.STAT. ANN. §§ 2C:14-2a(1), 2b);

                              18
see also United States v. Velaszquez-Overa, 100 F.3d 418, 422

(5th Cir. 1996) (“[Sexual crimes against minors] 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. A

child has very few, if any, resources to deter the use of physical

force by an adult intent or touching the child.”).

       That logic applies to other types of vulnerable victims.

A victim who is “physically helpless, mentally defective or

mentally incapacitated” is, like a child, incapable of offering

consent. Therefore, we have no difficulty finding that, just as

sexual abuse of a minor is included in the definition of a

“forcible sexual offense” under section 2L1.2, so, too,

penetration against a “physically helpless, mentally defective or

mentally incapacitated” victim equally constitutes a “forcible

sexual offense” under section 2L1.2.

                               19
       Our interpretation comports with the Sentencing

Commission’s recent commentary clarifying its definition of

“crime of violence.”4     We may apply that clarification to

Remoi’s conviction. Cf. United States v. Brennan, 326 F.3d

176, 197 (3d Cir. 2003) (“[W]hen an amendment is a mere

clarification, rather than a substantive change to the Guidelines,

its application does not violate the ex post facto clause.”)

(emphasis omitted); Stinson v. United States, 508 U.S. 36

(1993) (providing that Guidelines Commentary interpreting or

explaining the Guideline provisions is authoritative unless it



       4
         The Sentencing Commission changed the definition of
a “crime of violence” under section 2L1.2 to any of the
following: “murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling or any offense under federal, state
or local law that has an element the use, attempted use, or
threatened use of physical force against the person of another.”
U.S.S.G. § 2L1.2, app. n.1(B)(iii) (2003).
                               20
violates the Constitution or federal statute or is inconsistent

with or is a plainly erroneous reading of that provision). In

November of 2003, the Sentencing Commission explained that

in the context of section 2L1.2, an offense may be a “crime of

violence” even in the absence of physical force.             The

Commission provided:

       [T]he amendment adds commentary that clarifies
       the meaning of the term “crime of violence.”. . .
       . The previous definition often led to confusion
       over whether the specified offenses listed in that
       definition, particularly sexual abuse of a minor
       and residential burglary, also had to include as an
       element of the offense “the use, attempted use, or
       threatened use of physical force against the
       person of another.” The amended definition
       makes clear that the enumerated offenses are
       always classified as “crimes of violence,”
       regardless of whether the prior offense expressly
       has as an element the use, attempted use, or
       threatened use of physical force against the
       person of another.

U.S.S.G. app. C (vol.II), amend. 658, at 401-02 (Supp. 2003)

(emphasis added). Thus, one can commit a “forcible sexual

                               21
offense,” an enumerated offense under section 2L1.2, without

employing physical force. If a “forcible” sexual offense is not

associated with physical compulsion, it must therefore mean a

sexual act that is committed against the victim’s will or consent.

       Finally, our broad interpretation of forcible sexual

offense is consistent with the approach taken by most other

federal appellate circuits. Whether an offense must involve the

use of physical force to be considered a “crime of violence”

within the context of section 2L1.2 has been addressed by a

number of circuits reviewing sexual crimes against minors. The

overwhelming understanding has been that “sexual abuse of a

minor—forcible or not—constitutes a crime of violence.”

Rayo-Valdez, 302 F.3d at 316, 318–319 (5th Cir. 2002); see

also Vargas-Garnica, 332 F.3d at 473–74 (7th Cir. 2003);

Pereira-Salmeron, 337 F.3d at 1152 (9th Cir. 2003); Gomez-

Hernandez, 300 F.3d at 979 (8th Cir. 2002) (discussing “crimes

                               22
of violence” in the context of § 4B1.1); United States v.

Coronado-Cervantes, 154 F.3d 1242, 1243–45 (10th Cir.

1998); United States v. Pierce, 278 F.3d 282, 290–91 (4th Cir.

2002) (same).

       We do observe that the Fifth Circuit recently adopted a

limited definition of what constitutes a “forcible sexual offense”

under section 2L1.2. In United States v. Sarmiento-Funes, 374

F.3d 336 (5th Cir. 2004), the Court noted analyzed whether a

forcible sexual offense included a state statute that simply

criminalizes intercourse without consent. The Court held that

the state statute did not necessarily fall within the definition of

forcible sexual offenses, noting, “it seems that the adjective

‘forcible’ centrally denotes a species of force that either

approximates the concept of forcible compulsion.” Id. at 344.

       Sarmiento-Funes is distinguishable, however. The state

statute in that case included any non-consensual intercourse,

                                23
whether or not the victim was a minor or incapacitated. Lack of

consent was broadly defined. In reasoning that the state statute

encompassed non-forcible sexual offenses, the Fifth Circuit

expressly reaffirmed that sexual abuse of a minor is a crime of

violence. Id. That ruling, therefore, did not shut the door on

treating sexual acts involving other types of helpless victims as

“forcible.”   We believe, therefore, that the holding of

Sarmiento-Funes can be reconciled with our ruling today, and

with the other rulings of courts of appeals that we have

discussed. Accordingly, we will affirm the conviction.

                              III.

       Appellant challenges his sentence under United States v.

Booker, 543 U.S. __, 125 S. Ct. 738 (2005).              Having

determined that the sentencing issues appellant raises are best

determined by the District Court in the first instance, we vacate

the sentence and remand for resentencing in accordance with

                               24
Booker.

                             IV.

      Accordingly, the judgment of the District Court will be

affirmed in part and vacated and remanded in part.
