United States v. Gallegos-Galindo

The 2008 Revised Code of Washington § 9A.44.060(1)(a) includes any sex offense involving the absence of the victim’s consent as a “forcible sex offense.” A third-degree rape conviction is considered a “forcible sex offense” and can be considered during sentencing of a future crime, even if the rape occurred before Amendment 722 was enacted.

In 2011, when Oscar Gallegos-Galindo was being sentenced for reentry as a removed alien, the probation department considered his prior convictions. The department concluded that his 2008 Washington State conviction of third-degree rape was a “forcible sex offense” that qualified as a “crime of violence” under the United States Sentencing Guidelines, increasing his offense level. Before 2008, “crime of violence” included three types of sexual offenses: forcible sex offenses, statutory rape, and sexual abuse of a minor. “Forcible sex offenses” had been interpreted as requiring physical force beyond that required for penetration. However, in 2008, Amendment 722 modified “forcible sex offenses” to include offenses “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” With the Amendment, if consent was lacking, additional force or violence was not required. Under the Ex Post Facto Clause, if the Guidelines have substantively changed in a way that would disadvantage the defendant, the defendant is to be sentenced under the Guidelines in effect at the time of the offense, not at the time of sentencing. Here, the current offense occurred on February 15, 2011, long after the 2008 Amendment became effective. There was no change between the offense and sentencing that would disadvantage Gallegos-Galindo, and the court would not be required to use the pre-2008 definition of “forcible sex offense.” Gallegos-Galindo’s signed guilty plea provided evidence that the sexual assault was committed without the consent of the victim. As a result, his conviction falls within the Guidelines’ definition of “forcible sex offenses.” The district court did not err when it concluded that his conviction for third-degree rape was a crime of violence and when it considered it during sentencing. AFFIRMED.