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Media Alerts - United States v. Alfaro - Fourth Circuit
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November 7, 2016
  United States v. Alfaro - Fourth Circuit
Headline: Fourth Circuit Broadly Defines "Forcible Sex Offense" Under Sentencing Guideline 2L1.2

Area(s) of Law: Criminal Law, Immigration Law, Sentencing Guidelines

Issue Presented: Whether appellant's previous conviction of third degree sexual offense under § 3-307 of the Maryland Code constitutes a crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the district court properly found appellant's prior conviction of third degree sexual offense qualified as a crime of violence under the Sentencing Guidelines.

Extended Summary: Osmin Alfaro entered the United States illegally from El Salvador when he was a teenager. In 2003, Alfaro was convicted of third-degree sexual offense under § 3-307(a)(1) of the Maryland Code for sexually assaulting his then-estranged wife. Alfaro was deported in 2008 after failing to register as a sex offender in Maryland. He illegally re-entered the country in 2010. In 2014, he came to the attention of federal authorities and pled guilty to failing to register as a sex offender and illegal re-entry. The district court applied a 16-level sentencing enhancement after concluding that Alfaro's prior felony conviction of third-degree sexual assault qualified as a crime of violence - forcible sex offense - and sentenced him to 46 months' imprisonment.

On appeal, Alfaro challenged the district court's decision, arguing that while his offense was "forcible," it did not amount to a crime of violence because it did not qualify as a sex offense. Alfaro argued that for his conviction to qualify as a forcible sex offense under the Guidelines, the statute must require that the prohibited conduct be committed with an intent to gratify sexual urges. Because § 3-307(a)(1) can be violated with an intent to abuse, his conviction was not a crime of violence as defined by the Guidelines, Alfaro argued.

The court disagreed and determined that an intent to abuse was sufficient for a "forcible sex offense" and defined "sex offense" as an offense involving sexual conduct with another person. Applying a modified categorical approach, the court looked to the plain, ordinary meaning of the language used in the Guidelines to determine whether Alfaro's conviction qualified as a "forcible sex offense." The court reasoned that because "forcible sex offense" is not a traditional common-law crime, it would be "difficult, if not impossible" to employ the categorical approach of surveying the states' criminal codes to determine if Alfaro's prior conviction met the criteria of a crime of violence.

The court determined that "sex offense" simply refers to criminal offenses involving sexual conduct and reasoned that the Sentencing Commission purposefully did not limit crimes of violence to rape, but rather included all sexual offenses that are forcibly committed. Further, the court argued, the Commission's decision to resolve a circuit split and amend the Guideline to clarify that a sex offense may be forcible in the absence of physical force supports an expansive definition of "sexual offense" instead of the restrictive one Alfaro sought to apply. The court joined other circuits in defining the "sex offense" portion of "forcible sex offense" very broadly. Ultimately, the court held the district court did not err by treating Alfaro's prior conviction as a "forcible sex offense" under the Guidelines and affirmed his sentence.

To read the full opinion, click here.

Panel: Judges Traxler, Shedd, and Floyd

Argument Date: 03/24/2016

Date of Issued Opinion: 08/29/2016

Docket Number: No. 15-4102

Decided: Affirmed by published opinion

Case Alert Author:
Yvette Pappoe

Counsel: ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Leslie Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Author of Opinion:
Judge Traxler

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/07/2016 11:20 AM     4th Circuit  

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