Legally Non-Consensual Sex Offenses, Even If Involving Consent In Fact, are "Forcible Sex Offenses" Under §2L1.2's COV Definition

United States v. Rodriguez-Juarez, No. 09-41001 (5th Cir. Jan. 10, 2011) (per curiam) (Higginbotham, Smith, Haynes)

Remember the Fifth Circuit cases, such as Luciano-Rodriguez and Sarmiento-Funes, which held that sex offenses that are factually consensual but legally non-consensual (such as when the victim is too intoxicated to legally consent) are not "forcible sex offenses" for purposes of the crime-of-violence definition applicable to guideline §2L1.2's 16-level enhancement?  Those cases are no longer good law in light of a 2008 amendment to the COV definition:

In 2008, after the above decisions, . . . the Guidelines were amended. The new Guidelines specify that the definition of “crime of violence” includes sexual offenses “where consent to the conduct . . . 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). In its reasons for the amendment, the Sentencing Commission explained that “[a]pplication of the amendment . . . would result in an outcome that is contrary to cases excluding crimes in which ‘there may be assent in fact but no legally valid consent’ from the scope of ‘forcible sex offenses’” and cited examples of such cases, including Luciano-Rodriguez and Sarmiento-Funes. U.S.S.G. app. C, amend. 722.

This court has not yet addressed what effect the amended crime of violence definition has upon its previous rulings addressing whether a conviction for a sexual offense involving a person whose consent was legally invalid constitutes a forcible sexual offense. . . .

Because we have not previously addressed this issue in a published opinion, we do so here and conclude that the effect of the revisions to the Sentencing Guidelines is to make our prior precedent inapplicable to sentences calculated under the revised version of U.S.S.G. § 2L1.2(b)(1)(A)(ii). . . .