RAFAEL ANTONIO LARIOS-REYES v. LORETTA E. LYNCH
US Court of Appeals for the Fourth Circuit, Gregory, Dec. 6, 2016,
Immigraton – Because it prohibits sexual contact for either abuse OR sexual gratification, a conviction under MD CR 3-307(a)(3) does not qualify as a predicate “sexual abuse of a minor” conviction under the Immigration and Nationality Act.
Facts: Defendant, a permanent resident alien, engaged in fellatio with a 4-year old. After a plea deal, he was convicted in MoCo of 3rd Degree Sex Offense. DHS instituted deportation proceedings under the INA
Under 8 USC 1227(a)(2)(iii), “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”
Included in 8 USC 1101‘s definition of “aggravated felony” (there are over 20 sub-sections) is “(A) murder, rape, or sexual abuse of a minor”.
For a state conviction to qualify as a predicate aggravated felony, ‘the state statute defining the crime of conviction’ must “categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.”
The elements of the “generic” federal crime are laid out and, if the State statute “necessarily” involved facts equating to the federal offense, then it meets the criteria.
The Court then veers off of a strictly objective assessment, adding a requirement that “there is a ‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”
Some statutes involve multiple methods of violation, however. Where a statute is divisible, a “modified categorical approach” is applied. If one of them matches the generic definition, then “Shepard Documents” are reviewed to determine whether the fact-finder necessarily found the elements satisfying the generic federal crime. Shepard documents include “charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” In the 4th Circuit, courts may also consider applications for statements of charges and statements of probable cause, so long as the statements are expressly incorporated into the statement of charges itself
To be considered “divisible,” a statute must:
1) set out “one or more elements of the offense in the alternative,”
and (2) at least one of those elements or sets of elements must correspond to the federal definition at issue
A statute might be divisible as compared to one federal statute and not divisible as compared to another
CR 3-307 meets the first prong: there are alternative sets of elements that create multiple versions of the crime.
Rape and Sex Offenses generally have two forms: a “standard” form and an “aggravated” form. For example: vaginal intercourse by force or threat of force without consent would constitute 2nd Degree Rape. If an “aggravating factor” such as use of a weapon or accomplice is added, it becomes 1st Degree Rape.
In Maryland, 3rd Degree Sex Offense can be committed various ways:
– Sexual Contact by force/threat w/o consent + an aggravating factor
– Sexual Contact w/o consent + an accomplice
– Sexual Contact with a vulnerable victim
– Various Age-related (“Statutory”) offenses
3rd Degree age-related offenses include:
– Vaginal intercourse where the victim is 14/15 and the suspect is 21+
– A Sex Act where the victim is 14/15 and the suspect is 21+
– Sexual Contact where the victim is under 14 and the suspect is 4+ years older
The second “divisibility” prong requires that at least one of the alternatives meet the generic crime in question.
The 4th Circuit held that the generic form of “sexual abuse of a minor” means the ‘perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”
Because at least one element of CR 3-307 (vaginal intercourse with minor) meets the generic federal definition of “sex abuse of a minor, it is “divisible.”
Looking at the Shepard Documents for the case, the Defendant was convicted under Because at least one element of CR 3-307(a)(3): sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim
In Maryland, “Sexual Contact” is defined as “an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party.”
Because Maryland’s definition includes “abuse” OR “sexual gratification,” it does not meet the generic federal version which exclusively involves “sexual gratification”