First noticed on First Circuit Federal Defender Blog, Aguiar v. Gonzales has some heavy implications for people standing before a federal judge for immigration or sentencing enhancement issues. While it is difficult to predict future federal offenses by an individual client that may trigger some of the more draconian sentencing enhancements for "crimes of violence", lawyers should be on the lookout for "sweet" pleas to statutory rape situations that may then trigger unpleasant collateral immigration proceedings.
When determining whether a particular crime is a "crime of violence" we generally follow what has been termed the "categorical approach," restricting our inquiry to the statutory definition of the offense without regard to the underlying facts. United States
In United States v. Sacko, 178 F.3d 1, 4-5 (1st Cir.1999)("Sacko I"), we found that, in cases involving statutory rape,it was permissible to go beyond the statutory language and examine the charging documents and jury instructions. In doing so in the instant case, all we glean from the charging documents is that Aguiar was over eighteen and that the victim was between fourteen and sixteen. Because there was no trial, there were no jury instructions. Thus, for the purposes of this case, "our inquiry remains limited to the statutory formulation" of the offense. United States
Under this approach, "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant." Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003) (internal quotation marks omitted). Given the terms of Section 11-37-6, we must therefore determine whether sexual penetration involving a person who is eighteen and a person one day shy of the age of sixteen involves a substantial risk of the use of physical force. We conclude that it does.
Section 11-37-6 explicitly provides that a child under the age of sixteen is unable to legally consent to the sexual conduct the statute prohibits.
In framing the question for us to consider, Aguiar argues that we must examine the "typical" or "ordinary" conduct contemplated by the statute. . . . He then equates the "ordinary" conduct contemplated by the statute with " conduct between a male on his 18th birthday and a female one day shy of her 16th birthday." Id.
. . .
At least seven other circuits have addressed an issue similar to the one before us today. The Second, Fifth, Eighth, Tenth, and Eleventh Circuits have interpreted offenses involving similar statutes to be "crimes of violence" -- even if the conduct is factually consensual -- because they always involve a substantial risk of the use of physical force. . . . (citations omitted) On the other hand, the Seventh and Ninth Circuits have found that not all cases involving violations of similar statutes present a substantial risk that physical force will be used.