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En Banc Rehearing Granted in COV Case; Fives to Reconsider Categorical Approach?

By Brad Bogan

The Fifth Circuit has granted rehearing en banc in United States v. Gomez-Gomez. The panel held that the 1991 version of a California rape statute was not a "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. It reasonsed that because the offense can be committed by means of retribution (such as a threat to reveal embarrassing secrets about the victim), the offense lacks an element of physical force and also falls outside the generic meaning of a "forcible sex offense."

You'll recall that Judge Jolly concurred in the panel's opinion, but encouraged the court to rehear the case en banc because of what he characterized as the "nonsensical results" produced by the Fifth Circuit's precedent on this issue. He urged adoption of the Third Circuit's approach, which treats any non-consensual sex as forcible sex.

This case may be a stalking horse for a broader issue. Word around the campfire is that the parties have been directed to address whether United States v. Calderon-Pena should be modified or overruled. That's the en banc decision that (correctly) enshrined the Taylor categorical approach as the proper analysis for these COV questions.

Full post as published by Fifth Circuit Blog on February 12, 2008 (boomark / email).