Monday, September 18, 2006

Consensual Sex With a Person Under 17 Years Old under Tex. Penal Code § 22.011(a)(2) is a §2L1.2(b)(1)(A)(ii) Crime of Violence

United States v. Alvarado-Hernandez, No. 05-50994 (5th Cir. Sept. 14, 2006) (per curiam)

In this flawed opinion, the court holds that a conviction for consensual sex with a person less than seventeen years old in violation of Tex. Penal Code § 22.011(a)(2) is generic "statutory rape" and therefore an enumerated crime of violence subject to a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). Here is the court's discussion of the issue:

This court uses a “common sense approach” to determine if the defendant’s offense qualifies as an enumerated offense in the Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006) (“common-sense approach” requires a determination of the generic and contemporary meaning); see also United States v. Izaguirre-Flores, 405 F.3d 270, 274-75 (5th Cir. 2005). We review the district court’s interpretation de novo. Id. at 272.

The Texas statute at issue meets a common sense definition of “statutory rape.” This statute punishes consensual sexual intercourse with a child, defined as a person younger than the age of seventeen. Tex. Penal Code §§ 22.011(a)(2), (c)(1). Alvarado-Hernandez’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. See United States v. Lopez-Garcia, 163 F. App’x 306, 307-08 (5th Cir. 2006) (unpublished).

Slip op. at 2-3 (footnote omitted). The court also holds that "[t]he defendant's attempt to draw distinctions between the Texas statute and the Model Penal Code is without merit." Id. at 4.

There are three major flaws in the court's reasoning. First, the court perpetuates the confusion surrouding the enumerated offense prong of the COV definition by applying a common-sense approach rather than the familiar Taylor/Shepard categorical approach without explaining how, if at all, the two approaches differ. (See discussion here.)

Second, the court appears to rely on the specific facts underlying the prior offense, namely the age of the victim. That's verboten under the categorical approach, and even the prior Fifth Circuit cases that have used a common-sense approach have refused to consider the underlying facts of the prior offense.

Third, Texas's statutory rape law is broader than generic statutory rape. The least culpable conduct that would constitute an offense under the Texas statute would not be a crime in the vast majority of states, either because other states have a lower age of consent than Texas or because they require a greater age difference between the perpetrator and the victim than Texas does. The Model Penal Code's definition of statutory rape is also narrower than Texas's. In other COV cases the Fifth Circuit has treated the MPC as the gold standard for generic offense definitions, making the court's rejection of "[t]he defendant's attempt to draw distinctions between the Texas statute and the Model Penal Code" as "merit[less]" especially puzzling.

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