"Circuit Split Over Elements of Generic 'Sexual Abuse of a Minor'", or "When Does 5=17 and 9=16?"

As you're aware, the question of whether a prior conviction was for "sexual abuse of a minor" can have huge immigration and sentencing consequences. Sexual abuse of a minor is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(A). It's also an enumerated "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. But what is a "minor"?

Although the Fifth Circuit has recognized that the "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" it has nevertheless held that a person under age seventeen is "clearly a 'minor'" for purposes of "sexual abuse of a minor."

Turns out one of our neighbors to the west sees things differently. Yesterday, the (mini) en banc Ninth Circuit held, in Estrada-Mendoza v. Mukasey, No. 05-75850, that the elements of "sexual abuse of a minor," for purposes of the aggravated felony definition, are found in 18 U.S.C. § 2243(a). That statute effectively defines a minor as a person under age sixteen. (The Nines also pointed out that a majority of U.S. states define a minor as a person under age sixteen for purposes of sex laws, although the court considered that point irrelevant for reasons of interest only to those who have spent entirely too much time immersed in the intracacies of the Taylor/Shepard categorical approach. You know who you are.)

Given the current state of Fifth Circuit case law, this circuit split matters chiefly when it comes to Texas age-related sex offenses, which don't employ the same age-of-consent as most states. Indecency with a child under Penal Code § 21.11, and sexual assault under Penal Code § 22.011(a)(2), both prohibit various kinds of sexual activity with a "child," which they define as a person under seventeen. Under the Fifth Circuit's view, those offenses are categorically "sexual abuse of a minor." But not under the Ninth Circuit's view.

So ladies and gentlemen, start your cert petitions.

UPDATE: The Ninth Circuit blog has additional analysis here.

Fives Restore Inter-Circuit Harmony, Hold Sixteen is the Age of Consent for Generic Statutory Rape

United States v. Lopez-DeLeon, No. 06-41553 (5th Cir. Jan. 9, 2008) (Wiener, DeMoss, Prado)

"Statutory rape" is one of the enumerated crimes of violence subject to a 16-level enhancement under the illegal reentry guideline, §2L1.2. Back in October the Ninth Circuit held, in United States v. Rodriguez-Guzman, that the age of consent for generic statutory rape is sixteen. That meant that California's statutory rape provision (Cal. Penal Code § 261.5(c)), which sets the age of consent at eighteen, is broader than generic statutory rape. At the time, that opinion conflicted with a couple of unpublished Fifth Circuit decisions which held that an offense under § 261.5(c) is subject to guideline §2L1.2's COV enhancement. Rodriguez-Guzman also appeared to conflict with United States v. Alvarado-Hernandez, a published Fifth Circuit opinion affirming the COV enhancement for a conviction under the Texas statutory rape provision, which sets the age of consent at seventeen.

That conflict has evaporated with yesterday's decision in Lopez-DeLeon. Lopez had prior California convictions for "sexual intercourse with a minor" under § 261.5(c), and for "lewd act with a child under the age of 14" under a separate statute. The court first held that "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" because that's the age used by 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code. It then went on to hold, as the Ninth Circuit had, that "[b]y setting the age of consent at eighteen rather than sixteen, § 261.5(c) criminalizes some conduct that would not be criminalized under the generic, contemporary meaning of statutory rape[,]" and "[t]hus, § 261.5 (c) is overly broad for the purposes of defining statutory rape pursuant to" guideline §2L1.2's 16-level COV enhancement.

Nevertheless, the court held that Lopez was still subject to the enhancement, because the record of his prior convictions established that the victim of his crime was less than fourteen years old. Although it's a little unclear from the opinion, Lopez's indictment apparently only charged the lewd conduct offense. The charging document was orally amended at his plea colloquy to include a § 261.5(c) charge, evidently as to the same victim. Lopez pleaded nolo contendere to both the § 261.5(c) and the lewd conduct, and was sentenced only on the § 261.5(c). Because an element of the lewd conduct offense is that the victim be under fourteen, Lopez's nolo plea admitted that the victim was under fourteen as to the § 261.5 charge, as well. That makes it generic statutory rape.

Okay, that resolves the conflict between the Fifth Circuit's two earlier unpublished opinions on § 261.5(c), and Rodriguez-Guzman. But what about Alvarado-Hernandez, you say? It turns out that Lopez-DeLeon is entirely consistent with that decision. Alvarado-Hernandez didn't actually declare what it believed to be the age of consent for generic statutory rape. Although it said that "[t]he Texas statute at issue meets a common sense definition of 'statutory rape[,]'" it went on to point out that the fact Alvarado's "prior conviction was based on an indictment that charged him with having consensual sexual intercourse with a fourteen-year-old victim, sufficient to meet a common-sense as well as a generic, contemporary definition of statutory rape." So the record of the prior conviction established that the victim was less than fourteen years old, just as it did here. Plus, because of the way the Texas statute is structured, the less-than-fourteen allegation in Alvarado's indictment made fourteen the relevant age, not seventeen. So Alvarado-Hernandez wasn't really confronting the question of whether an age of consent of seventeen fits within generic statutory rape.

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.