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United States v. Alay

United States Court of Appeals, Fifth Circuit

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JUAN ALAY, Also Known as Juan Alay-Mendez, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Juan Alay was convicted of illegal reentry. The district court applied a crime-of-violence ("COV") enhancement under the sentencing guidelines based on Alay's conviction of rape in California. Alay appeals the sentence by challenging the enhancement, asserting that conviction under the California statute is possible with only a negligent mens rea, while application of a COV enhancement requires a more culpable mental state, thus rendering the COV enhancement impermissible under the categorical approach in Mathis v. United States, 136 S.Ct. 2243 (2016). We affirm.

         I.

         Alay pleaded guilty of illegal reentry in violation of 8 U.S.C. § 1326. The presentence report ("PSR") recommended a 16-level enhancement. Alay had been deported for a conviction of rape under California Penal Code § 261(a)(3).[1]The probation officer deemed that to be a COV under U.S. Sentencing Guidelines ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii) and recommended the enhancement, because a person convicted of illegal reentry faces a 16-level enhancement if the crime for which he was deported was a COV.

         The guidelines define a COV to be

murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses . . ., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

Id. cmt. n.1(B)(iii). Further, the guidelines define "forcible sex offense[]" as an offense "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." Id.

         Section 261(a)(3) defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [w]here a person is prevented from resisting by intoxicating or anesthetic substance . . . and this condition was known, or reasonably should have been known, by the accused." Alay objected to the enhancement, stating that a conviction under Section 261(a)(3) does not qualify as a COV because it can be committed with a negligent belief that the victim could resist, making it broader than the definition of "forcible sex offense" within the notes to U.S.S.G. § 2L1.2. At sentencing, Alay repeated the objection, for substantially the same reasons. The district court overruled the objection and sentenced him to 41 months, a within-guidelines sentence. Without the COV enhancement, the guideline range would have been 15-21 months.

         II.

         Because Alay objected to the COV enhancement both when it first appeared in the PSR and at sentencing, he has preserved the objection, and we review his sentence de novo. United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). In addition, "[w]e review the district court's characterization of a prior offense as a [COV] de novo." United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010) (per curiam).

         We take a "categorical" approach in "determining whether a prior conviction qualifies as a [COV] under the Guidelines." United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). "Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant's specific conduct." Id.

[O]ur application of [the] categorical approach to a prior state conviction proceeds in the following four steps: First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its "generic, contemporary meaning" from its common usage as stated in legal and other well-accepted ...

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