Indecency With a Child Under Okla. Stat. tit. 21, § 1123(A)(4) Is "Sexual Abuse of Minor" & Therefore a U.S.S.G. §2L1.2 COV

United States v. Balderas-Rubio, No. 06-41153 (5th Cir. Sept. 5, 2007) (King, Garza, Benavides)

Balderas, who pled guilty to illegal reentry, had a prior conviction for "Indecency or Lewd Acts with a Child Under the Age of Sixteen," in violation of what is now Okla. Stat. tit. 21, § 1123(A)(4). The issue: is that offense a "crime of violence" subject to a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii), either as the enumerated COV "sexual abuse of a minor" or as an offense that has an element of physical force?

That portion of the Oklahoma statute makes it a crime "to intentionally look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner . . . ." The state charging instrument alleged that Balderas "intentionally looked upon and touched the body and private parts" of a child "in a lewd and lascivious manner . . . , to wit: by forcibly placing his penis into [the child's] hands and having her masturbate him[.]"

Balderas conceded that sexual acts involving actual contact with a minor, as well as those done in the minor's presence, would fit within the generic definition of sexual abuse of a minor. But he argued that the Oklahoma statute is broader than generic SAM because of the "look upon" alternative, "which could conceivably punish a person who merely lewdly or lasciviously looks upon a minor from afar, [such as through a telephoto lens,] without the minor’s knowledge." In that instance, Balderas argued, there would be no potential for psychological harm to the child and therefore no abuse.

The court disagreed with Balderas's argument concerning the scope of the Oklahoma statute, pointing to the following passage from the Supreme Court's opinion in United States v. Duenas-Alvarez:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

The court concluded that because Balderas hadn't pointed to anyone convicted under the Oklahoma statute "for merely looking at a minor from a distance and without the minor’s knowledge[,]" and because Balderas's information established that he hadn't been convicted under such a theory, he had failed to show a "realistic possibility of such a prosecution." The court therefore held that Balderas's "Oklahoma conviction constitutes 'sexual abuse of a minor' for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) as a matter of law."