United States v. Cabrera-Umanzor, No. 11-4621

Decided: August 26, 2013

The Fourth Circuit held that, because the elements of sexual abuse under the Maryland Code do not correspond to the elements of any enumerated “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court erred in applying a 16-level sentencing enhancement to Cabrera-Umanzor’s (“Defendant”) sentence. The court therefore reversed and remanded for resentencing.

Defendant pleaded guilty to unlawful re-entry of a removed alien after an aggravated felony conviction. The base offense level for such conviction is 8, however, Section 2L1.2(b) provides for various offense-level enhancements depending on the specific characteristics of the Defendant’s offense. At issue in this case, was the 16-level enhancement that applies in cases where a Defendant was deported after a conviction for a “crime of violence,” as defined in Section 2L1.2 The district court held that the modified categorical approach applied because some, but not all, of the conduct proscribed by Section 35c would constitute a crime of violence. Then, without considering the elements of Section 35c, it concluded that having intercourse with an 11-year-old when Defendant was 19 was a forcible sex offense and thus a crime of violence. The district court therefore applied the 16-level enhancement and, consequently, the Defendant was sentenced to 41 months imprisonment.

Citing recent Supreme Court precedent, the Fourth Circuit noted that the central feature of both the categorical approach and the modified categorical approach is a focus on the elements, rather than the facts, of a crime. Then, after determining that the modified categorical approach was inapplicable because Section 35c is not divisible along crime of violence lines, the court held that, under the categorical approach, sexual abuse under Section 35c is not a “crime of violence” for purposes of the sentencing enhancement. In so holding, the court noted that sexual abuse under Section 35c does not require the use or threatened use of physical force, and the offense may be committed without committing any of the enumerated crimes of violence. Therefore, the elements of sexual abuse under Section 35c do not correspond to the elements of any of the “crimes of violence.” Consequently, the Fourth Circuit reversed and remanded for resentencing.

Full Opinion

– W. Ryan Nichols

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