Monday, February 10, 2014

Maryland Attempted Sexual Contact with Person Under 14 Is § 2L1.2 COV

This is the latest application of the plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc).  Chacon pled guilty to illegal reentry but challenged the 16-level enhancement for his prior conviction for attempted sexual contact with a person under 14 years in violation of Maryland’s Criminal Law § 3-307(a)(3).  The panel rejected Chacon’s argument in a 3-page opinion, stating simply:

After reviewing § 3-307(a)(3) we are satisfied that a violation of that section constitutes sexual abuse of a minor under the plain-meaning approach.  See United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013).

Chacon did not argue that “attempt” under Maryland law is different than “attempt” under the Guidelines, so the panel simply cited to § 2L1.2 cmt. n.5 which states that a “crime of violence” includes an attempt to commit a crime of violence.

The panel did not decide whether § 3-307(a)(3) also constituted a crime of violence as a “forcible sex offense.”  Nor did the panel reach the other issue Chacon raised, which was—if § 3-307(a)(3) is not categorically a crime of violence—whether the court could consider an Application for Statement of Charges from Maryland to narrow the conviction.  Since the panel found attempted sexual contact with a person under the age of 14 was categorically a crime of violence, it did not have to look to any documents to narrow the conviction.

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