Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
No. 05-2154
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
(...continued)
and pushed him away again.
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See United States v. Torres-Ruiz, 387 F.3d 1179, 118081 (10th Cir. 2004). In
interpreting a guideline, we look at the language in the guideline itself, as well as
the interpretative and explanatory commentary to the guideline provided by the
Sentencing Commission. Id. at 1181 (quotation omitted).
The 2004 Guidelines, under w hich the D istrict Court sentenced M r.
Romero-Hernandez, provide a sixteen-level upw ard adjustment to the base
offense level if the defendant previously was deported, or unlawfully remained
in the United States, after . . . a conviction for a felony that is . . . a crime of
violence. U.S.S.G. 2L1.2(b)(1)(A)(ii). The application notes to 2L1.2
define crime of violence as:
any of the following: 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 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.
U.S.S.G. 2L1.2 cmt. n.1(B)(iii) (emphasis added).
W hen a defendant contests whether a prior conviction is a crime of
violence, the sentencing court is generally required to follow the categorical
approach as adopted in Taylor v. United States, 495 U.S. 575, 600 (1990).
United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005). The
categorical approach requires the sentencing court to look only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
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W e may look to the criminal complaint at this stage only to narrow the
state offense we examine under the categorical approach. See Taylor, 495 U.S. at
602 (requiring courts, under the categorical approach, to look only to the fact of
conviction and the statutory definition of the prior offense); see also United
States v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005) (explaining that [e]ven under
the categorical approach, we have been willing to consider charging documents in
refining the state offense [that] we examine).
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(...continued)
[T]he knowing touching of the victims intimate parts by the actor, or
of the actors intimate parts by the victim, or the knowing touching
of the clothing covering the immediate area of the victims or actors
intimate parts if that sexual contact is for the purposes of sexual
arousal, gratification, or abuse.
Colo. Rev. Stat. 18-3-401(4).
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omission of the physical modifier from the term forcible sex offense indicates
that the word forcible must mean more than physical compulsion. This
conclusion is bolstered by the fact that there are other enumerated offenses that
do not necessarily involve physical compulsion, permitting an inference that
physical compulsion is not necessary for a crime to be a crime of violence
generally. For example, the list of specifically enumerated crimes of violence
include statutory rape and sexual abuse of a minor, neither of which requires
physical compulsion. See Remoi, 404 F.3d at 795 (noting that sexual abuse of a
minor is a crime that involves exploitation, but not necessarily physical
compulsion). Thus, a sex offense may be committed by means that do not involve
physical force, yet the offense may still be forcible.
Though we have determined that a forcible sex offense need not be
accomplished by means of physical compulsion, the question remains whether
nonconsensual sexual contact, such as that prohibited by the Colorado statute, is
necessarily forcible. W hen an offense involves sexual contact with another
person, it is necessarily forcible when that person does not consent. See Remoi,
404 F.3d at 796 (If a forcible sexual offense is not associated with physical
compulsion, it must therefore mean a sexual act that is committed against the
victims will or consent.). In the instant case, this conclusion is reinforced by
reference to the specifically enumerated situations that are covered by the statute
in question: victims unable to comprehend the nature of their conduct; physically
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