10th Refuses to Apply S.Ct. ACCA Decisions in GL Context

U.S. v. Reyes-Alfonso, 2011 WL 3134683 (7/27/11) (N.M.) (Published) - The 10th holds that a prior Colorado conviction for sexual contact-no consent was for a "forcible sex offense" under § 2L1.2's definition of "crime of violence." The 10th had already made that ruling in U.S. v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007). But, undaunted, the defense argued later S. Ct. decisions in Begay and Johnson called for a reinterpretation of what is a "forcible sex offense." But the 10th found Begay inapposite because it dealt with the ACCA, which listed different offenses than does § 2L1.2's definition of "crime of violence." And Johnson defined "physical force" in the ACCA, which has nothing to do with sex crimes and "physical force" is not a part of the definition of "forcible sex offense." No physical force is required to constitute a "forcible sex offense," especially in light of later defining amendments to § 2L1.2's application notes. The d. ct. adequately explained its within-guideline-range sentence by saying the bottom of the range was sufficient but not greater than necessary to meet the § 3553(a) requirements, despite the defendant's complaint that the guidelines double-counted his prior conviction. The 46-month sentence was substantively reasonable, given the defendant's 5 uncounted convictions and the fact he reentered only 5 days after his deportation.