Circuit Split On Generic Statutory Rape & On Whether Shepard Permits Use of Admissions Made Outside of Proceedings Leading to Prior Conviction

Yesterday the Ninth Circuit decided a case that sets up a conflict with the Fifth Circuit on a couple of important issues involving crimes of violence and the Taylor/Shepard categorical approach. The case is United States v. Rodriguez-Guzman,* and the issue was whether a conviction under Cal. Penal Code § 261.5(c), which criminalizes sexual intercourse with a person under age 18, constitutes generic statutory rape for purposes of guideline §2L1.2's 16-level COV definition.

The court first held that the age of consent for generic statutory rape is 16, because that's the age used by a majority of states. And because the California statute establishes age 18 as the age of consent, it's broader than generic statutory rape. That holding conflicts with at least two unpublished Fifth Circuit cases which held that § 261.5(c) constitutes generic statutory rape under guideline §2L1.2(b)(1)(A)(ii): United States v. Vigil-Sanchez and United States v. Lopez-Garcia. It also conflicts with United States v. Alvarado-Hernandez, which held that Texas's statutory rape statute, which establishes age 17 as the age of consent, constitutes generic statutory rape under guideline §2L1.2(b)(1)(A)(ii). (See our coverage of Alvarado-Hernandez here.)

Rodriguez-Guzman also made an interesting comment regarding the scope of Shepard v. United States, which permits a court to examine certain documents from a prior conviction to see whether they pare down an overbroad statute and establish that the defendant was convicted of violating it in a way that fits within the generic offense definition. "At Guzman’s sentencing hearing his counsel represented that at the time of the offense Guzman was twenty and the intercourse was with his seventeen year old girlfriend." Interestingly, the court remarked that "[e]ven if the transcript of the sentencing hearing suggested the opposite—that Guzman’s offense qualified under the modified categorical approach—it would not suffice because that transcript is not judicially noticeable as a 'record[ ] of the convicting court.' Shepard v. United States, 544 U.S. 13, 23 (2005)."

Now that's probably dicta. But it nevertheless seems to be in tension with a few Fifth Circuit decisions which have approved the use of admissions about prior convictions that were made at the sentencing hearing for a later federal offense: United States v. Jenkins (admission that prior drug convictions were felonies could be used to determine that they were in fact felonies for purposes of 21 U.S.C. § 851), United States v. Mendoza-Sanchez (admission that prior burglary was of a "house" sufficient to establish that it was burglary of a "dwelling" under U.S.S.G. §2L1.2(b)(1)(A)(ii)), United States v. Martinez-Vega (defendant agreed that "everything in the PSR was correct," and that sufficed to establish which subsection of a statute underlay his prior conviction).

In light of the conflict on these issues, you should consider preserving them for en banc or Supreme Court review if they arise in any of your cases. The latter issue (concerning the scope of Shepard) is probably the more cert-worthy of the two. Even if the comment about Shepard is dicta in Rodriguez-Guzman, there may be other Ninth Circuit cases where it's actually part of the court's holding.

*United States v. Rodriguez-Guzman, No. 06-10585 (9th Cir. Oct. 22, 2007) (Fletcher, Hawkins; Siler, concurring in part and dissenting in part). The Ninth Circuit Blog has covered the case here.