The following published opinion was released by the U.S. Court of Appeals for the Fifth Circuit on October 21, 2008:

• U.S. v. Gomez (Jones, C.J., Reavley, Jolly, Davis, Smith, Wiener, Barksdale, Garza, Benavides, Dennis, Clement, Prado, Owen, Elrod, Southwick, Haynes, JJ.; opinion by Jolly, Benavides, JJ.; King, J., taking no part in consideration of case) (en banc). Unanimously affirming defendant’s sentence, after sentence had been vacated and remanded for resentencing by panel. At issue was whether a sex offense committed using non-physical (i.e., constructive) force was appropriately considered as a prior conviction of a “crime of violence” as a “forcible sex offense” under the Sentencing Guidelines. The defendant had previously pled guilty to violation of California’s rape statute, which included sexual intercourse accomplished by means of duress, which could consist of implied or express threats of hardship or retribution. In sentencing the defendant on a count of illegal reentry into the United States, the district court found this prior California conviction to be a “crime of violence” for sentence enhancement purposes. The original panel of the Fifth Circuit unanimously vacated the sentence and remanded; the unanimous en banc Fifth Circuit instead affirmed the sentence. The Court held that its previous decision in Sarmiento-Fuenes stood only for the limited proposition that a sex offense is not “forcible” when there is consent in fact, and that it was inapplicable when the offense is accomplished through duress, which the Court termed as “constructive force.” Slip op. at 6. The Court therefore held that “forcible sex offense” under the Sentencing Guidelines is not limited to “physical force.” “Such offenses, by definition, involve victims who have not consented in fact, even if the victim has nominally consented. As we use the phrase, ‘consent in fact’ means consent actually and freely given. A mere word or action indicating consent that is given under duress, whether through physical or nonphysical means, and against the free will of the victim, indicates nothing about whether the victim in fact wishes to engage in sex; such nominal consent is solely a creature of the duress, and the perpetrator who has applied physical or constructive force to make the victim submit cannot reasonably interpret such a word or action as indicating that the victim actually wishes to manifest consent. . . . Such ‘consent’ is not simply null as a matter of law, as with a word or action indicating consent freely given by an underage victim in a statutory rape case, but null as a matter of fact.” Slip op. at 9-10.