Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. Jul. 20, 2007) (California conviction for forcible rape, in violation of California Penal Code 261 (1990), is not necessarily a crime of violence for illegal re-entry sentencing purposes, since "[a] subsection of that statute defines duress as a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. Id. at 261(b) (emphasis added). It adds that [t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. Id.).

Note: The court here tries to distinguish United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.), and suggests that Beliew may be contrary to established Fifth Circuit precedent.