Tuesday, April 30, 2013

Florida Conviction of Sexual Battery is § 2L1.2 Crime of Violence

United States v. Garza-Guijan, No. 11-20508 (Apr. 29, 2013) (Jones, Dennis, Higginson)

The panel found that Garza’s prior Florida state court conviction for sexual battery was a "forcible sex offense" as defined in the U.S. Sentencing Guidelines for a sixteen-level enhancement under § 2L1.2. The Florida statute prohibited committing sexual battery upon a person 12 years of age or older "without that person’s consent" and with the use of "physical force and violence not likely to cause serious personal injury." The panel dismissed Garza’s argument that the "contours of non-consent under Florida law are somehow broader than the Guidelines category."

The Government agreed on appeal that the district court erred in finding that Garza’s prior Florida burglary conviction was a crime of violence. See United States v. Gomez-Garza, 485 F.3d 301 (5th Cir. 2006). Of course, that did not help decrease Garza’s sentence given his sexual battery conviction.

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