Honorato-Rodriguez

MEMORANDUM *

In this case, we must consider whether Honorato-Rodriguez’s prior Pennsylvania conviction for indecent assault is a crime of violence under USSG § 2L1.2(b)(l)(A)(ii). Yet, we cannot discern from the record whether Honorato-Rodriguez’s prior Pennsylvania conviction was for violating 18 Pa. Cons.Stat. Ann. § 3126(a)(1), or (2), or both. The record only reflects that Honorato-Rodriguez was charged with violating both subsections of the Pennsylvania indecent assault statute, and that he pleaded guilty to “indecent assault.” The Pennsylvania indecent assault statute, however, contains eight subsections, and each subsection criminalizes different conduct. 1 Without knowing whether Honorato-Rodriguez pleaded to (a)(1), (a)(2), or both, we cannot determine whether his prior conviction was a crime of violence.

Section 3126(a)(1) criminalizes indecent assault as indecent contact “without the complainant’s consent,” whereas (a)(2) proscribes indecent contact “by forcible compulsion.” If convicted under subsection (a)(1), then Honorato-Rodriguez’s prior conviction would not be a crime of violence under the Sentencing Guidelines using either the categorical or modified…