United States v. Caceres-Olla

The crime of statutory rape is not a forcible sex offense and therefore is not a “crime of violence” as defined by the United States Sentencing Guideline 2L 1.2.

Israel Caceras-Olla pled guilty to unlawful reentry into the United States, a crime under 8 U.S.C. § 1326. The sentencing for unlawful reentry is determined by United States Sentencing Guideline (“Guideline”) 2L 1.2, and Caceras-Olla’s offense of unlawful reentry into the U.S. has a base level of eight. The offense level goes up by sixteen levels if the defendant has been deported after “being convicted of a felony that constitutes a ‘crime of violence.’” Caceras-Olla objected to his offense being elevated and his sentence of 46 months in prison. He argued that his previous conviction was not a “forcible sex offense” under Florida law. Caceras-Olla’s previous conviction was for “[l]ewd or lascivious battery.” Florida law defines the crime of lewd or lascivious battery as: “[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.” The Ninth Circuit held that Caceras-Olla’s past crime did not “constitute a ‘forcible sex offense’ or ‘statutory rape’ within the meaning of the applicable Guideline.” The panel found that the circuit court’s sentencing of Caceras-Olla was wrong for three reasons: (1) the lack of consent defense to statutory rape “is analytically distinct from situations in which a victim’s “consent…is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced”; (2) a reading of “forcible sex offenses” to include one in which the crime is based on the age of the victim would be “superfluous” because “[i]f all sex offenses ‘where consent…is not legally valid’ on the basis of age are, by definition, ‘forcible,’ there would be no need to separately enumerate ‘statutory rape’”; and (3) calling any sexual act with someone under age a “forcible sex offense” would be contrary to the modern concept of statutory rape. VACATED and REMANDED.