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Indecent Proposal to a Minor is a Crime of Violence

By Robyn Hagan Cain on June 01, 2012 | Last updated on March 21, 2019

Perhaps the Sentencing Guidelines should have included an enhancement for past "nefarious deeds" instead of past "crimes of violence" because no defendant seems willing to concede that his past conviction constituted a crime of violence.

It's understandable that -- when faced with additional time in the slammer -- a defendant would fight for his freedom. But the "crime of violence" designation can be confusing. Today's Tenth Circuit Court of Appeals case provides an example.

Defendant David Martinez-Zamaripa pleaded guilty to being an alien present in the United States after deportation. The district court imposed a sentence of 54 months based on a 16-level enhancement under the Sentencing Guidelines for a prior conviction of a crime of violence. (In 1995, Martinez-Zamaripa was convicted in Oklahoma of indecent proposal to a child.)

Martinez-Zamaripa argued to the Tenth Circuit Court of Appeals that his state conviction should not have been considered a crime of violence under the Guidelines. The Tenth Circuit disagreed.

As used in the Guideline, the phrase “crime of violence” encompasses two distinct categories: one broadly defined to include any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another”; the other constituted by specifically enumerated generic offenses including, as relevant here, “sexual abuse of a minor.”

The state statute governing the offense of indecent proposal to a child at the time of Martinez-Zamaripa’s conviction had five subsections addressing distinct types of conduct, more than one of which could plausibly be characterized as involving an indecent proposal. The question here was whether only activity qualifies as sexual abuse of a minor, or if an indecent proposal could also qualify.

Here, the district court held that Martinez-Zamaripa’s conviction for indecent proposal to a child qualified as a crime of violence under the enumerated-offense provision of the Guideline. While this was an issue of first impression for the Tenth Circuit, the court noted that it had previously held that crimes involving encouragement or solicitation of sexual activity by a child constituted sexual abuse of a minor.

The Tenth Circuit Court of Appeals is not alone in its broad interpretation of “crimes of violence” and “sexual abuse of a minor”; this week, the Eleventh Circuit held that a “lewd assault act” as qualifies as sexual abuse of a minor.

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