United States v. Filiberto Hernandez-Garcia

MEMORANDUM

Defendant-Appellant Filiberto Hernandez-Garcia, a citizen of Mexico, pled guilty to one count of re-entry after deportation in violation of 8 U.S.C. §§ 1326 (a) and (b)(1).’ At sentencing, the district court imposed a 16-level enhancement based on Hernandez-Garcia’s 2004 Wisconsin state conviction as a party to the crime of third-degree sexual assault in violation of Wis. Stat. § 940.225 (3), finding that it was a ■ forcible sex offense, and therefore categorically a crime of violence. See U.S.S.G. § 2L1.2(b)(l)(A). Hernandez-Garcia argues on appeal that the district court erred in finding that his prior conviction was categorically a crime of violence. He contends the Wisconsin statute is broader than the generic definition of forcible sex offense because it allows lack of consent to be based on the age of the victim.

The Sentencing Guidelines, and our case law, recognize that a forcible sex offense requires “a sexual act where ‘consent to the conduct’: (1) ‘is not given’; or (2) ‘is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.’ ” United States v. Caceres-Olla, 738 F.3d 1051, 1054-55 (9th Cir.2013) (quoting U.S.S.G.…