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Click here for the full text of this decision FACTS:Domingo Luciano-Rodriguez pleaded guilty before a magistrate judge to attempted illegal re-entry following a prior deportation. The district court accepted the plea. Pursuant to U.S.S.G. �2L1.2(b)(1)(A), in the presentence report the probation officer applied a 16-level increase to Luciano-Rodriguez’s base offense level due to a prior Texas conviction for sexual assault. Luciano-Rodriguez objected to the enhancement. The probation officer maintained that the prior Texas offense constituted a crime of violence under the sentencing guideline, because it was both a forcible sex offense and had as an element the use, attempted use or threatened use of physical force against another person. At sentencing, the district court overruled Luciano-Rodriguez’s objection. The district court found that sexual assault did not require the use of force as an element of the offense under Texas law. Further, the district court found that under Texas law, all nonconsensual sexual conduct is inherently violent but concluded that it must look to federal law to determine whether the offense is a forcible sex offense under the Sentencing Guidelines. In doing so, the district court concluded that the Texas statute set forth a forcible sex offense because each method of committing the offense required the perpetrator to knowingly use some source of power over the victim to overcome that person’s resistance. The district court sentenced Luciano-Rodriguez to 42 months in prison, to be followed by a three-year term of supervised release. Luciano-Rodriguez filed a timely notice of appeal. HOLDING:The sentence is vacated and his case is remanded to the district court for resentencing. The fact that the Texas Penal Code allows for the violation of �22.011 even where the other person assents-in-fact to the sexual activity in situations where that assent is rendered a legal nullity, makes United States v. Sarmiento-Fuentes, 374 F.3d 336 (5th Cir. 2004), the controlling decision on this issue. In Sarmiento, this court analyzed a Missouri sexual assault statute that prohibited sexual intercourse without the other person’s consent. The court concluded that the statute did not have an element of physical force against another person because under Missouri law consent and assent are distinguished, and the statute could be violated when the victim assented or factually consented to the sexual contact even “though that assent is a legal nullity, such as when it is the product of deception or a judgment impaired by intoxication.” The court also found that the prior violation of the Missouri statute did not constitute a forcible sex offense because it did not require “force or threatened force extrinsic to penetration.” The court concluded that not all the conduct criminalized by the Missouri statute could be considered a forcible sex offense. The court held that the defendant’s prior sexual assault conviction did not qualify as a crime of violence for purposes of sentence enhancement. Texas Penal Code �22.011 criminalizes assented-to-but-not-consented-to conduct. Moreover, the element of force is absent from those subsections of the statute. Accordingly, under this court’s reasoning in Sarmiento, the district court in the instant appeal erred in applying the 16-level crime-of-violence sentence enhancement. This error was not harmless because, without the increase, Luciano-Rodriguez’s total offense level would have been 13, which, with a criminal history category of II, would have resulted in a sentencing range of 15 to 21 months under the Sentencing Guidelines � less than the 42 month sentence imposed. OPINION:Dennis, James L., J.; Jolly, Dennis and Owen, JJ. CONCURRENCE:Jolly, J. “I . . . believe that Sarmiento-Funes was incorrectly decided because, in my view,”forcible sexual offense’, as used in the Guidelines, both before and after the 2003 amendments, reasonably can be defined as any criminalized sexual assault when the absence of consent is either actual or legal. I would reason similarly as Judge Owen has in her dissent. Still, I cannot concur because I view her dissent and Sarmiento-Funes as irreconcilable and this panel has no authority to overrule that decision.” DISSENT:Owen, J. “I would hold that sexual intercourse without legally effective consent is within the scope of ‘forcible sex offenses’ and therefore is a ‘crime of violence’ within the meaning of section 2L1.2 of the Sentencing Guidelines. I differ with the majority’s conclusion that the decision in United States v. Sarmiento-Funes is controlling. The Sentencing Guidelines have been amended since that case was decided, and those amendments clarify the intended meaning of ‘forcible sex offenses.’ “

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