New “Plain-Meaning” Approach for Non-Common Law Enumerated Offenses Under § 2L1.2 Crimes of Violence: Use Dictionaries, Not 50-State Surveys or Model Penal Code
United States v. Cabecera Rodriguez, No. 11-20881 (en banc) (Mar. 15, 2013)
Majority (Elrod, Higginson, Stewart, King, Jolly, Davis, Smith, DeMoss, Clement, Prado, Southwick)
The Fifth Circuit en banc, frustrated with the Sentencing Commission’s lack of definitions for enumerated offenses and the categorical approach, created a "plain-meaning" approach for non-common law enumerated offenses and concluded that Cabecera Rodriguez’s Texas conviction for sexual assault of a child is a U.S.S.G. § 2L1.2 crime of violence (COV) under "sexual abuse of a minor" and "statutory rape."
The Fifth Circuit held that:
(1) "Minor" for "sexual abuse of a minor" means a person under the age of 18. It does not matter how many years of age difference between the minor and the perpetrator.
(2) "Statutory rape" is sexual intercourse with a person under the age of consent as defined by the statute in the jurisdiction where the conviction was obtained.
The New "Plain-Meaning Approach"
(1) Identify "the undefined offense category" that could trigger the sentencing enhancement.
That means those enumerated offenses in the COV definition. Evaluate whether the meaning of that offense category is clear from the language of the enhancement or applicable commentary. If it is, stop and compare to the statute of conviction. If not, go onto Step 2.
- In this case, the meanings of "sexual abuse of a minor" and "statutory rape" were not clear, so the Court continued onto Step 2.
(2) Is that offense category defined at common law?
If it is, stop using this new approach and go back to the Taylor approach for defining generic, contemporary definition (using 50-state surveys, Model Penal Code, treatises, etc.). If it’s not, go to Step 3.
- According to the majority, "sexual abuse of a minor" and "statutory rape" are not common law offenses. So, the analysis proceeded to Step 3.
- How to determine whether the offense category was defined at common law? The majority provides some footnotes (16 and 17) to help us figure out whether the offense is defined at common law, but this is most likely going to become a complicated inquiry. (For example, the majority thinks statutory rape is not common law, but concurring Judge Graves thinks it is.) They suggest looking at "books by recognized writers on English crimes, especially Blackstone."
(3) Derive the offense category’s "generic, contemporary meaning" from its "common usage as stated in legal and other well-accepted dictionaries."
Do not look to the Model Penal Code or do a nationwide survey of state laws.
- The Fifth Circuit did that here by looking to dictionary definitions of "minor" and deciding it means someone under age 18. For statutory rape, the Fifth Circuit determined that the dictionary definition relied on a statutory age, requiring us look to the age of consent in the jurisdiction of conviction.
(4) Compare the elements of the statute of conviction with the generic meaning of the offense category.
- Phew. Back to common ground. (Except that now the generic meaning of statutory rape is going to rely on the age of consent in the jurisdiction of the conviction. So, instead of comparing the elements of two offenses, you’ll using age of consent from the state offense to define the generic offense and then compare them.)
- Cabecera Rodriguez’s Texas conviction for sexual assault of a child matches both of the generic offenses, so he gets the 16-level enhancement.
Dicta, Concurrences, & Dissent
The opinion is also replete with criticisms of the Sentencing Commission and the categorical and modified categorical approach. Nevertheless, in a doth-protest-too-much fashion, the opinion repeatedly declares that the new approach is in line with Taylor and will help provide uniform decisions across the nation (even though, after using the same approach, the Fifth Circuit’s definition of statutory rape looks to the state statute for age of consent whereas the Ninth Circuit’s definition includes the age of consent as 16).
If you’re skeptical about this new approach, you might want to check out how the concurring and dissenting judges felt:
Concurring (Owen and Jones): Judge Owen’s main concern with the opinion "is its exclusive reliance on dictionaries . . . ." As she points out, "dictionary entries are, by their very nature, broad and tend to encompass all uses of a word or phrase." (Read: more defendants will get enhancements.) Instead, she would "attempt to divine what the Sentencing Commission meant when it used the terms at issue in § 2L1.2," which was "a range of diverse conduct, defying precise definition" but definitely including Texas sexual assault of a child. Judge Owen also criticizes the majority’s lack of consistency by referring to Black’s definition of "statutory rape" to define "minor" as under eighteen but then rejecting Black’s statement that the age of consent to sexual intercourse is "usually" defined by statute at 16 years and instead deferring to state statutes. Concurring in judgment only (Haynes): Judge Haynes writes separately to urge the Sentencing Commission to define "sexual abuse of a minor." She points out that a "myriad of offenses could fall under the broad rubric of ‘sexual abuse of a minor,’" but that a federal sentencing enhancement should provide uniform treatment of similarly-situated defendants. "Although a sixteen-level enhancement is too low for some of the more vile cases . . . , it is too high for others." As she reminds her colleagues, "federal sentencing is not an opportunity to resentence the defendant for a state crime."
Concurring in part and concurring in the judgment (Graves): Judge Graves approves of the plain-meaning approach but disagrees with its application for "statutory rape," which he concludes is a common law crime. As such, under the Taylor majority-based approach, he would adopt the generic, contemporary definition of statutory rape that includes 16 as the age of consent.
Judge Graves concludes that a distinction between judge-created crimes and crimes created by early statute is unworkable, highlighting how murky this inquiry of whether a crime is common law or not can become. He also criticizes the majority’s definition of "statutory rape" as fundamentally flawed because it depends on state law and is therefore not uniform.
Dissenting (Dennis): "The majority’s ‘plain meaning’ approach lacks disciplinary content and cannot help but reduce uniformity and fairness in federal sentencing. It is not this court’s place to overrule Taylor’s approach to defining generic predicate offenses under the guidelines." He cites approvingly the Fourth Circuit’s decision in United States v. Rangel-Castaneda, which is based on a review of the Model Penal Code, treatises, modern state codes, and dictionaries, and concludes that "‘the generic, contemporary meaning of statutory rape sets the general age of consent at sixteen years old.’" The Fourth Circuit also concludes that "sexual abuse of a minor" turns on the general age of consent for the generic definition of statutory rape, which would be 16. So, Cabecera Rodriguez would not get the 16-level enhancement in the Fourth Circuit.
Judge Dennis also disagrees with dicta in the majority opinion that criticizes the categorical approach as not "lead[ing] to reasonable results" and as requiring too many analytical "gymnastics."
Practice Points
(1) Keep on preserving age-of-consent-based attacks on sexual abuse of a minor and statutory rape crimes of violence, acknowledging that they are foreclosed at the moment.
(2) Work on your variance requests since the plain-meaning approach is likely going to be over-inclusive.
(3) Be careful relying on prior Fifth Circuit decisions that address non-common law enumerated offenses. The Fifth Circuit explicitly states that United States v. Lopez-DeLeon and United States v. Munoz-Ortenza are "no longer valid precedent to the extent they use approaches other than a plain-meaning approach to define the ‘generic, contemporary meaning’ of the ‘statutory rape’ and ‘sexual abuse of a minor’ offense categories in § 2L1.2." Precedent is left intact for common law enumerated offenses. It's up to you to argue whether an offense is common law or not (see footnotes 16 and 17 of the decision for some guidance).
Majority (Elrod, Higginson, Stewart, King, Jolly, Davis, Smith, DeMoss, Clement, Prado, Southwick)
The Fifth Circuit en banc, frustrated with the Sentencing Commission’s lack of definitions for enumerated offenses and the categorical approach, created a "plain-meaning" approach for non-common law enumerated offenses and concluded that Cabecera Rodriguez’s Texas conviction for sexual assault of a child is a U.S.S.G. § 2L1.2 crime of violence (COV) under "sexual abuse of a minor" and "statutory rape."
The Fifth Circuit held that:
(1) "Minor" for "sexual abuse of a minor" means a person under the age of 18. It does not matter how many years of age difference between the minor and the perpetrator.
(2) "Statutory rape" is sexual intercourse with a person under the age of consent as defined by the statute in the jurisdiction where the conviction was obtained.
The New "Plain-Meaning Approach"
(1) Identify "the undefined offense category" that could trigger the sentencing enhancement.
That means those enumerated offenses in the COV definition. Evaluate whether the meaning of that offense category is clear from the language of the enhancement or applicable commentary. If it is, stop and compare to the statute of conviction. If not, go onto Step 2.
- In this case, the meanings of "sexual abuse of a minor" and "statutory rape" were not clear, so the Court continued onto Step 2.
(2) Is that offense category defined at common law?
If it is, stop using this new approach and go back to the Taylor approach for defining generic, contemporary definition (using 50-state surveys, Model Penal Code, treatises, etc.). If it’s not, go to Step 3.
- According to the majority, "sexual abuse of a minor" and "statutory rape" are not common law offenses. So, the analysis proceeded to Step 3.
- How to determine whether the offense category was defined at common law? The majority provides some footnotes (16 and 17) to help us figure out whether the offense is defined at common law, but this is most likely going to become a complicated inquiry. (For example, the majority thinks statutory rape is not common law, but concurring Judge Graves thinks it is.) They suggest looking at "books by recognized writers on English crimes, especially Blackstone."
(3) Derive the offense category’s "generic, contemporary meaning" from its "common usage as stated in legal and other well-accepted dictionaries."
Do not look to the Model Penal Code or do a nationwide survey of state laws.
- The Fifth Circuit did that here by looking to dictionary definitions of "minor" and deciding it means someone under age 18. For statutory rape, the Fifth Circuit determined that the dictionary definition relied on a statutory age, requiring us look to the age of consent in the jurisdiction of conviction.
(4) Compare the elements of the statute of conviction with the generic meaning of the offense category.
- Phew. Back to common ground. (Except that now the generic meaning of statutory rape is going to rely on the age of consent in the jurisdiction of the conviction. So, instead of comparing the elements of two offenses, you’ll using age of consent from the state offense to define the generic offense and then compare them.)
- Cabecera Rodriguez’s Texas conviction for sexual assault of a child matches both of the generic offenses, so he gets the 16-level enhancement.
Dicta, Concurrences, & Dissent
The opinion is also replete with criticisms of the Sentencing Commission and the categorical and modified categorical approach. Nevertheless, in a doth-protest-too-much fashion, the opinion repeatedly declares that the new approach is in line with Taylor and will help provide uniform decisions across the nation (even though, after using the same approach, the Fifth Circuit’s definition of statutory rape looks to the state statute for age of consent whereas the Ninth Circuit’s definition includes the age of consent as 16).
If you’re skeptical about this new approach, you might want to check out how the concurring and dissenting judges felt:
Concurring (Owen and Jones): Judge Owen’s main concern with the opinion "is its exclusive reliance on dictionaries . . . ." As she points out, "dictionary entries are, by their very nature, broad and tend to encompass all uses of a word or phrase." (Read: more defendants will get enhancements.) Instead, she would "attempt to divine what the Sentencing Commission meant when it used the terms at issue in § 2L1.2," which was "a range of diverse conduct, defying precise definition" but definitely including Texas sexual assault of a child. Judge Owen also criticizes the majority’s lack of consistency by referring to Black’s definition of "statutory rape" to define "minor" as under eighteen but then rejecting Black’s statement that the age of consent to sexual intercourse is "usually" defined by statute at 16 years and instead deferring to state statutes. Concurring in judgment only (Haynes): Judge Haynes writes separately to urge the Sentencing Commission to define "sexual abuse of a minor." She points out that a "myriad of offenses could fall under the broad rubric of ‘sexual abuse of a minor,’" but that a federal sentencing enhancement should provide uniform treatment of similarly-situated defendants. "Although a sixteen-level enhancement is too low for some of the more vile cases . . . , it is too high for others." As she reminds her colleagues, "federal sentencing is not an opportunity to resentence the defendant for a state crime."
Concurring in part and concurring in the judgment (Graves): Judge Graves approves of the plain-meaning approach but disagrees with its application for "statutory rape," which he concludes is a common law crime. As such, under the Taylor majority-based approach, he would adopt the generic, contemporary definition of statutory rape that includes 16 as the age of consent.
Judge Graves concludes that a distinction between judge-created crimes and crimes created by early statute is unworkable, highlighting how murky this inquiry of whether a crime is common law or not can become. He also criticizes the majority’s definition of "statutory rape" as fundamentally flawed because it depends on state law and is therefore not uniform.
Dissenting (Dennis): "The majority’s ‘plain meaning’ approach lacks disciplinary content and cannot help but reduce uniformity and fairness in federal sentencing. It is not this court’s place to overrule Taylor’s approach to defining generic predicate offenses under the guidelines." He cites approvingly the Fourth Circuit’s decision in United States v. Rangel-Castaneda, which is based on a review of the Model Penal Code, treatises, modern state codes, and dictionaries, and concludes that "‘the generic, contemporary meaning of statutory rape sets the general age of consent at sixteen years old.’" The Fourth Circuit also concludes that "sexual abuse of a minor" turns on the general age of consent for the generic definition of statutory rape, which would be 16. So, Cabecera Rodriguez would not get the 16-level enhancement in the Fourth Circuit.
Judge Dennis also disagrees with dicta in the majority opinion that criticizes the categorical approach as not "lead[ing] to reasonable results" and as requiring too many analytical "gymnastics."
I worry that my colleagues have forgotten that ‘[a]mong the considerations that led the Taylor court to conclude that a categorical approach to prior convictions was necessary were concerns about the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions. . . . I believe the rigors of the categorical approach to be both principled and workable. Taylor made clear that a standard approach to classifying past convictions is essential to fair and uniform federal sentencing. . . . [I]t is not our place to eschew faithful application of the disciplined analysis required by precedent merely because some may become ‘skeptical’ when it produces results favorable to criminal defendants.
Practice Points
(1) Keep on preserving age-of-consent-based attacks on sexual abuse of a minor and statutory rape crimes of violence, acknowledging that they are foreclosed at the moment.
(2) Work on your variance requests since the plain-meaning approach is likely going to be over-inclusive.
(3) Be careful relying on prior Fifth Circuit decisions that address non-common law enumerated offenses. The Fifth Circuit explicitly states that United States v. Lopez-DeLeon and United States v. Munoz-Ortenza are "no longer valid precedent to the extent they use approaches other than a plain-meaning approach to define the ‘generic, contemporary meaning’ of the ‘statutory rape’ and ‘sexual abuse of a minor’ offense categories in § 2L1.2." Precedent is left intact for common law enumerated offenses. It's up to you to argue whether an offense is common law or not (see footnotes 16 and 17 of the decision for some guidance).
posted by Kristin (Connor) Kimmelman at 1:03 PM
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