Circuit Split Regarding North Carolina Indecent Liberties Statute and "Sexual Abuse of a Minor"

As you'll recall, the Fifth Circuit held in United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005), that the North Carolina offense of taking indecent liberties with a child is "sexual abuse of a minor" for purposes of the 16-level crime of violence enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). The court refused to recognize that the North Carolina statute is extremely broad and that it encompasses some conduct that presents no risk of physical or psychological harm to the child. Recall also that Izaguirre-Flores eschewed a categorical approach to the issue in favor of what it termed a "common-sense" approach.

Well, the Ninth Circuit has now held to the contrary. In United States v. Baza-Martinez, No. 05-10282 (9th Cir. Sept. 26, 2006), the court recognized the breadth of the North Carolina statute and held that it does not categorically constitute sexual abuse of a minor due to the statute's focus on the perpetrator's motive rather than his conduct. Here's Baza-Martinez's take on Izaguirre-Flores:

The Fifth Circuit in Izaguirre-Flores took an unusual approach to its analysis. Rather than conducting a Taylor analysis, it stated that it preferred a “common sense” approach. 405 F.3d at 275. It conceded that “[i]n similar cases, when we have been called on to determine whether a violation of a state statute constitutes a specifically enumerated offense under Application Note (1)(B)(iii) [U.S.S.G. §2L1.2(b)(1)(A)(ii)], we have held that when the enumerated offense under the Guidelines encompasses a narrower range of conduct than that prohibited by the state statute, we cannot hold as a matter of law that the sentencing enhancement is proper.” Id. at 276-77. Then following its “common sense” approach, however, the court said it refused to read the statute as criminalizing acts that did not involve “overt sexual acts,” eliminating other conduct that would be included were the statute broadly though literally read. Id. at 277. Like the Bahar court, it focused on the statutory language “for the purpose of arousing or gratifying sexual desire” rather than the harm to the minor. Id. We fault its reasoning both for reading out of the statute some acts that the statute clearly includes and focusing on the wrong issue. We reiterate that whether sexual abuse of a minor is an element of all crimes prohibited by the statute is the key consideration.

Note that Baza-Martinez also conflicts with the view of the Eleventh Circuit (the Bahar case the quoted paragraph refers to).

(Hat tip: Ninth Circuit Blog)