June 14, 2019

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.

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