Sexual assault not crime of violence absent force
That pesky habit of Oregon of packing all sorts of additional ways to commit crimes in its statutes has resulted in another successful sentencing challenge arising from offenses committed in Oregon.
In U.S. v. Beltran-Munguia, the Ninth Circuit held Oregon’s 2d degree sexual assault offense was not a “crime of violence” under the Federal Sentencing Guideline’s enhancement scheme. Or at least, not as crime of violence is defined when enhancing a sentence for the offence of illegally entering or remaining in the U.S.
To be a crime of violence other than those listed by name in the guidelines (2L1.2(b)(1)(A)(ii)), the use, or attempted or threatened use of physical force against the victim must be a necessary element of the crime. However, a perpetrator can commit 2d degree sexual assault in Oregon without force. For example, a victim may appear to consent, but be legally incapable of doing so due to minority, mental incapability, physical helplessness due to intoxication, etc. For the same reason, the offense is not “forcible sex offense.”
The Court notes that the definition of crime of violence differs in other parts of the sentencing guidelines. Thus, in U.S. v. Riley, 183 F.3d 1155 (1999), a rape statute that also criminalizes “nonconsensual but not necessarily forceful sex,” was held to be a crime of violence. The section of the guidelines at issue there, §4B1.2(a) included a catchall “involves a serious potential risk of physical injury to another.”
Judge Berzon authored the opinion. Judges Rymer and Tallman concurred, each noting that precedent bound them to do so. Tallman went further, and questioning the adherence to legal form over substance and the Court’s “zeal to be good legal technicians.”
The same week, the court issued U.S. v. Grisel, which similarly held that Oregon’s 2d degree burglary statute was not a categorical burglary offense because of the expansive way in which it might be committed. See my report on that case.
