Eleventh Circuit Court of Appeals - Published Opinions

Thursday, January 02, 2014

Contreras: 2nd degree sexual battery is "crime of violence"

In U.S. v. Contreras, No. 13-10928 (Jan. 2, 2014), the Court, on a government appeal, held that second-degree sexual battery in violation of Fla. Stat. § 794.011(5) is a “crime of violence” and therefore subjects a defendant convicted of illegal re-entry to a 16-level Guideline enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Contreras argued that because § 749.011(5) does not require any force other than that necessary to achieve “penetration” or “union,” it is not a “forcible” sex offense. The Court noted that under the Guidelines definition of “forcible sexual offenses,” the use of physical force is not an element. It includes situations where there is no legally valid consent. The Court therefore vacated Contreras’ sentence and remanded for resentencing.