Public Defense

Fives Restore Inter-Circuit Harmony, Hold Sixteen is the Age of Consent for Generic Statutory Rape

By Brad Bogan

"Statutory rape" is one of the enumerated crimes of violence subject to a 16-level enhancement under the illegal reentry guideline, §2L1.2. Back in October the Ninth Circuit held, in United States v. Rodriguez-Guzman, that the age of consent for generic statutory rape is sixteen. That meant that California's statutory rape provision (Cal. Penal Code § 261.5(c)), which sets the age of consent at eighteen, is broader than generic statutory rape. At the time, that opinion conflicted with a couple of unpublished Fifth Circuit decisions which held that an offense under § 261.5(c) is subject to guideline §2L1.2's COV enhancement. Rodriguez-Guzman also appeared to conflict with United States v. Alvarado-Hernandez, a published Fifth Circuit opinion affirming the COV enhancement for a conviction under the Texas statutory rape provision, which sets the age of consent at seventeen.

That conflict has evaporated with yesterday's decision in Lopez-DeLeon. Lopez had prior California convictions for "sexual intercourse with a minor" under § 261.5(c), and for "lewd act with a child under the age of 14" under a separate statute. The court first held that "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" because that's the age used by 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code. It then went on to hold, as the Ninth Circuit had, that "[b]y setting the age of consent at eighteen rather than sixteen, § 261.5(c) criminalizes some conduct that would not be criminalized under the generic, contemporary meaning of statutory rape[,]" and "[t]hus, § 261.5 (c) is overly broad for the purposes of defining statutory rape pursuant to" guideline §2L1.2's 16-level COV enhancement.

Nevertheless, the court held that Lopez was still subject to the enhancement, because the record of his prior convictions established that the victim of his crime was less than fourteen years old. Although it's a little unclear from the opinion, Lopez's indictment apparently only charged the lewd conduct offense. The charging document was orally amended at his plea colloquy to include a § 261.5(c) charge, evidently as to the same victim. Lopez pleaded nolo contendere to both the § 261.5(c) and the lewd conduct, and was sentenced only on the § 261.5(c). Because an element of the lewd conduct offense is that the victim be under fourteen, Lopez's nolo plea admitted that the victim was under fourteen as to the § 261.5 charge, as well. That makes it generic statutory rape.

Okay, that resolves the conflict between the Fifth Circuit's two earlier unpublished opinions on § 261.5(c), and Rodriguez-Guzman. But what about Alvarado-Hernandez, you say? It turns out that Lopez-DeLeon is entirely consistent with that decision. Alvarado-Hernandez didn't actually declare what it believed to be the age of consent for generic statutory rape. Although it said that "[t]he Texas statute at issue meets a common sense definition of 'statutory rape[,]'" it went on to point out that the fact Alvarado's "prior conviction was based on an indictment that charged him with having consensual sexual intercourse with a fourteen-year-old victim, sufficient to meet a common-sense as well as a generic, contemporary definition of statutory rape." So the record of the prior conviction established that the victim was less than fourteen years old, just as it did here. Plus, because of the way the Texas statute is structured, the less-than-fourteen allegation in Alvarado's indictment made fourteen the relevant age, not seventeen. So Alvarado-Hernandez wasn't really confronting the question of whether an age of consent of seventeen fits within generic statutory rape.

Full post as published by Fifth Circuit Blog on January 10, 2008 (boomark / email).