Intent to Abuse Sufficient for "Forcible Sex Offense" Under 2L1.2

US v. Alfaro: Alfaro reentered the United States illegally. His prior deportation had come after he was convicted of "third degree sexual offense" in Maryland in 2003. At sentencing, Alfaro's Guideline range was enhanced under USSG 2L1.2(b)(1)(A)(ii) for being a "crime of violence." In that particular Guideline, the definition is contained entirely in the commentary and includes a lengthy list of enumerated offenses, including "forcible sex offenses." The district court concluded that Alfaro's 2003 conviction fit that description and imposed the 16-level enhancement.

The Fourth Circuit affirmed Alfaro's sentence on appeal. Alfaro's argument was that while his 2003 offense was "forcible" it was not a "sex offense." In an earlier decision (Diaz-Ibarra), the Fourth Circuit had held that "sexual abuse of a minor" in the same Guideline required that such an offense was committed "for a purpose associated with sexual gratification." Alfaro's 2003 offense, by contrast, could be committed "for the abuse of either party" as well as for "sexual arousal or gratification." The court rejected Alfaro's argument, holding that while "sex" and "sexual" have similar meanings, the operative things being defined are the phrases "forcible sex offense" and "sexual abuse of a minor" and don't require the same result. Other circuits have read the definition of "forcible sex offense" in a similarly broad manner.

The bigger takeaway from this case is how the court reached its conclusion. This wasn't an element of force argument, it was a question of whether Alfaro's state conviction matched the "generic" definition of an enumerated defense. However, rather than resort to a survey of state laws to determine the generic definition of "forcible sex offense," the court concluded that it was "difficult if not impossible" to "identify a consensus set of the minimum elements necessary to define the category." As a result, the court turned to "the plain, ordinary meaning of the language used by the Guidelines." Given the list of enumerated offenses in the new version of the career offender Guideline, this could be very important going forward.