Victor Jair Aguilar v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3926
_____________
VICTOR JAIR AGUILAR,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A046-981-570)
Immigration Judge: Honorable Walter A. Durling
_______________
Argued
September 13, 2011

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Before: RENDELL, JORDAN and BARRY, Circuit Judges.
(Filed November 29, 2011)
_______________
Wayne P. Sachs [ARGUED]
1518 Walnut Street – Ste. 702
Philadelphia, PA 19102
Counsel for Petitioner
Eric H. Holder, Jr.
Thomas W. Hussey
Rebecca H. Phillips [ARGUED]
Ann C. Varnon
United States Department of Justice
Office of Immigration Lit., Civ. Div.
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________

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JORDAN, Circuit Judge.
Victor Aguilar petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) ordering that he be
removed because he was convicted of “sexual assault” under
18 PA. CONS. STAT. § 3124.1 (“§ 3124.1”), which the BIA
determined was a crime of violence under 18 U.S.C. § 16(b)
(“§ 16(b)”), and therefore an aggravated felony under 8
U.S.C. § 1101(a)(43)(F). Aguilar asserts that crimes
involving a minimum mens rea of recklessness cannot be
crimes of violence under § 16(b). Accordingly, he argues
that, because the minimum mens rea necessary for conviction
under § 3124.1 is recklessness, the BIA erred in finding that
his conviction constituted a crime of violence under § 16(b).
Contrary to Aguilar‟s assertion, however, our precedent does
not foreclose the possibility that a reckless crime can be a
crime of violence under § 16(b). Because sexual assault, as
defined by § 3124.1, raises a substantial risk that the
perpetrator will intentionally use force in furtherance of the
offense, we agree with the BIA that it constitutes a crime of
violence under § 16(b). We will therefore deny Aguilar‟s
petition.
I. Background
In 2000, Aguilar, a native and citizen of Honduras,
was admitted to the United States as a lawful permanent
resident. Four years later, in the Court of Common Pleas of
Berks County, Pennsylvania, he was found guilty of both
sexual assault, a second degree felony, under § 3124.1,1 and
1 Section 3124.1 makes it an offense to “engage[] in

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indecent assault, a second degree misdemeanor, under 18 PA.
CONS. STAT. § 3126(a)(2). He was sentenced to a term of
imprisonment of forty-six months to eight years, followed by
two years of probation. In that same proceeding, the jury
found Aguilar not guilty of rape under 18 PA. CONS. STAT.
§ 3121(a)(1).2 Based on those felony and misdemeanor
convictions, the Department of Homeland Security (“DHS”)
issued Aguilar a Notice to Appear, charging him as
removable under INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), because he had been convicted of a
crime of violence under § 16(b) and hence an aggravated
felony as defined by 8 U.S.C. § 1101(a)(43)(F).3
sexual intercourse or deviate sexual intercourse with a
complainant without the complainant‟s consent.” 18 PA.
CONS. STAT. § 3124.1.
2 Pursuant to 18 PA. CONS. STAT. § 3121(a)(1), “[a]
person commits a felony of … first degree [rape] when the
person engages in sexual intercourse with a complainant …
by forcible compulsion.”
3 The definition of “aggravated felony” includes “a
crime of violence (as defined in [§ 16], but not including a
purely political offense) for which the term of imprisonment
[is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). The Notice
to Appear also charged Aguilar as removable under 8 U.S.C.
§ 1227(a)(2)(A)(i), for having been convicted of a crime
involving moral turpitude within five years of his admission,
for which a sentence of at least one year or longer may be
imposed. However, neither the Immigration Judge nor the
BIA addressed that charge because both found that Aguilar‟s
sexual assault conviction under § 3124.1 provided a ground
for his removal under 8 U.S.C. § 1227(a)(2)(A)(iii). Thus,

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Section 16(b) defines a “crime of violence” as “any
other offense [not described in § 16(a)4] that is a felony and
that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in
the course of committing the offense.” 18 U.S.C. § 16(b). In
an “Interlocutory Ruling on Aggravated Felony,” the
Immigration Judge (“IJ”) “sustain[ed] the aggravated felony
ground of removal under [8 U.S.C. § 1227(a)(2)(A)(iii)].”
(AR at 86.) The IJ held that, since “[t]he confrontation
inherent in engaging in non-consensual sexual or deviant
intercourse” creates a substantial risk that physical force may
be used in the course of committing the offense, sexual
assault under § 3124.1 is a crime of violence under § 16(b).
(Id.) The IJ reasoned that, although § 3124.1 “cover[s] those
occasions where a victim is compelled to engage in sexual
intercourse or deviant sexual intercourse without consent
even where no force was applied,” (AR at 85), § 16(b) can
nevertheless cover offenses under § 3124.1 because § 16(b)
only requires “a substantial risk that physical force may be
used against the person in the course of committing the
offense,” (AR at 86).
Aguilar appealed to the BIA. Like the IJ, the BIA
reasoned that “even if the intercourse required by [§ 3124.1]
although Aguilar‟s convictions may well qualify as crimes
involving moral turpitude, that issue is not before us.
4 Section 16(a) defines a “crime of violence” as “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” 18 U.S.C. § 16(a).

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is accomplished without physical force or physical resistance,
the offense of penetrating another person without [that
person‟s] consent necessarily disregards the substantial risk of
physical force being used to actually overcome the victim‟s
lack of consent.” (AR at 4.) Thus, the BIA dismissed the
appeal.
Aguilar has timely petitioned us for review.
II. Jurisdiction and Standard of Review
Pursuant to 8 U.S.C. § 1252(a), we have jurisdiction to
consider “„questions of law raised upon a petition for review,‟
including petitions for review of removal orders based on
aggravated felony convictions.”5 Tran v. Gonzales, 414 F.3d
464, 467 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(a)(2)(D)).
Since the interpretation of criminal provisions “is a task
outside the BIA‟s special competence and congressional
delegation … [and] very much a part of this Court‟s
competence,” our review is de novo. See id. (noting that de
novo review is appropriate in the context of interpreting the
criminal provisions of Title 18 of the United States Code).
5 The IJ had jurisdiction over Aguilar‟s original
removal proceeding pursuant to 8 U.S.C. § 1229a, and the
BIA, in turn, had jurisdiction to consider Aguilar‟s appeal
pursuant to 8 C.F.R. § 1003.1(b)(3).

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III. Discussion
A. The Categorical Approach
This case requires us to interpret the meaning and
application of the type of aggravated felony defined by statute
as a “crime of violence.” See Singh v. Ashcroft, 383 F.3d
144, 150 (3d Cir. 2004) (noting that whether a petitioner has
been convicted of an aggravated felony “turns on a question
of statutory interpretation”). First, we must ascertain the
definition of a “crime of violence” under the enumerating
statute, 8 U.S.C. § 1101(a)(43)(F), which incorporates § 16(b)
by reference, and second, we must compare that federal
definition to the statute of conviction, namely sexual assault
under § 3124.1. Restrepo v. Att’y Gen. of the U.S., 617 F.3d
787, 791 (3d Cir. 2010). Case law refers to this kind of
analysis as the “categorical approach” to determining whether
a state law conviction constitutes an aggravated felony under
federal law. Taylor v. United States, 495 U.S. 575, 601
(1990). Applying the categorical approach, “we look to the
elements of the statutory state offense, not to the specific facts
[of the case], reading the applicable statute to ascertain the
least culpable conduct necessary to sustain conviction under
the statute.” Denis v. Att’y Gen. of the U.S., 633 F.3d 201,
206 (3d Cir. 2011) (citations and internal quotation marks
omitted).6
6 The categorical approach will not always suffice.
“Where … a statute criminalizes different kinds of conduct,
some of which would constitute [aggravated felonies] while
others would not,” we turn to a modified categorical
approach, under which we “may look beyond the statutory
elements to determine the particular part of the statute under

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B. Crime of Violence
The question before us is whether sexual assault under
§ 3124.1, which has a minimum mens rea of recklessness,7 is
a crime of violence under § 16(b). Aguilar argues that it is
not, because he reads our precedent as barring any crime that
can be committed recklessly from qualifying as a § 16(b)
crime. The government argues that, notwithstanding the
possibility that § 3124.1 may be violated recklessly, “sexual
assault,” as defined by that statute, is a crime of violence
under § 16(b) because it creates a substantial risk that force
may be used. The preliminary issue, then, is whether, under
which the defendant was actually convicted.” Denis, 633
F.3d at 206 (citation omitted). Here, however, the categorical
approach is sufficient because, as is set forth in detail herein,
§ 3124.1 criminalizes only behavior that qualifies as an
aggravated felony. Thus, we will confine our review to the
fact of conviction and the statutory definition of the offense.
Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir. 2005)
(citing Taylor, 495 U.S. at 602).
7 Section 3124.1 does not have an explicit mens rea
requirement. When a statute is silent as to the level of mens
rea required to establish a material element of an offense,
Pennsylvania law provides that “such element is established if
a person acts intentionally, knowingly or recklessly with
respect thereto.” 18 PA. CONS. STAT. § 302(c). Regarding
the mens rea required to convict Aguilar of sexual assault, the
trial judge instructed the jury that they must find “that the
defendant acted knowingly or at least recklessly regarding
[the complainant‟s] nonconsent.” (AR at 180.)

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our precedent, the fact that a crime can be committed with a
mens rea of recklessness necessarily disqualifies it from
being a crime of violence under § 16(b). We conclude that
reckless crimes can be crimes of violence under § 16(b)
because, under the terms of the statute and applicable case
law, the focus must be on the risk of the intentional use of
force, not merely on mens rea, as Aguilar urges. However, as
the relevant precedents are nuanced and deserving of
discussion, we will review them first and apply the proper test
to the crime at issue, before turning to cases examining
similar crimes, which have consistently been held to be
crimes of violence.
1. Recklessly Committed Crimes can be
Crimes of Violence under § 16(b)
As already noted, § 16(b) provides that a crime of
violence is “any other offense [not described in § 16(a)8] that
is a felony and that, by its nature, involves a substantial risk
8 As the government concedes, § 16(a) is not at issue
in this case because § 3124.1 does not require a showing of
force and thus does not fall within § 16(a). As pointed out
earlier, § 16(a) defines a crime of violence as those offenses
that have “as an element the use, attempted use, or threatened
use of physical force against the person or property of
another.” 18 U.S.C. § 16(a). Section 16(b), however, was
crafted to include crimes that, by their nature, involve a
substantial risk that physical force may be used in the course
of committing the offense. See 18 U.S.C. § 16(b). Thus,
§ 16(b) is broader than § 16(a), Leocal v. Ashcroft, 543 U.S.
1, 11 (2004), because it does not require that force be an
element of the crime, see 18 U.S.C. § 16(b).

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that physical force against the person or property of another
may be used in the course of committing the offense.” 18
U.S.C. § 16(b). Mens rea is not featured in that definition,
but both the Supreme Court and our court have considered
mens rea when determining what constitutes a crime of
violence under § 16(b). Under those precedents, crimes
involving a mens rea of negligence or of a variant of
recklessness that we have called “pure” recklessness have
been held not to be crimes of violence under § 16(b) because,
by their nature, they do not raise a substantial risk that
physical force may be used. E.g., Tran, 414 F.3d at 465; see
Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). Those precedents,
however, do not foreclose all crimes with a mens rea of
recklessness from qualifying as crimes of violence. Although
the mental state necessary to satisfy the substantive elements
of a crime may have a bearing on the “substantial risk”
inquiry required by § 16(b), a reckless mens rea does not
necessarily dictate that a crime falls outside of § 16(b). Case
law instead follows the plain language of § 16(b) and focuses
on whether the crime, by its nature, raises a substantial risk
that force may be used. Thus, a crime that can be committed
recklessly may still qualify as a crime of violence
under § 16(b) if that crime, by its nature, raises such a risk.
In Leocal v. Ashcroft, the Supreme Court held that a
Florida DUI offense9 is not a crime of violence under § 16(b)
because “[i]n no „ordinary or natural‟ sense can it be said that
9 The DUI statute in Leocal “ma[de] it a third degree
felony for a person to operate a vehicle while under the
influence and, „by reason of such operation, caus[e] …
[s]erious bodily injury to another.‟” 543 U.S. at 7 (quoting
FLA. STAT. § 316.193(3)(c)(2)).

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a person risks having to „use‟ physical force against another
person in the course of operating a vehicle while intoxicated
and causing injury.” 543 U.S. at 11. The Court reasoned that
§ 16(b):
covers offenses that naturally involve a person
acting in disregard of the risk that physical
force might be used against another in
committing an offense. The reckless disregard
in § 16 relates not to the general conduct or to
the possibility that harm will result from a
person‟s conduct, but to the risk that the use of
physical force against another might be required
in committing a crime.
Id. at 10 (emphasis added). Though the Court held that
§ 16(b) “require[s] a higher mens rea than the merely
accidental or negligent conduct involved in a DUI offense,”
id. at 11, it did so in light of its suggestion that the nature of
the DUI crime itself, not the particular mens rea associated
with the crime, was key in assessing the substantial risk
required by § 16(b), see id. (“In no „ordinary or natural‟ sense
can it be said that a person risks having to „use‟ physical force
against another person in the course of operating a vehicle
while intoxicated and causing injury.”). Moreover, while the
Court explicitly noted that it was not considering “whether a
state or federal offense that requires proof of the reckless use
of force against a person or property of another qualifies as a
crime of violence under 18 U.S.C. § 16,” id. at 13, it at least
implied that it could qualify. Indeed, by specifically
emphasizing that the “disregard” in § 16(b) is a “reckless
disregard,” Leocal supports the conclusion that crimes that

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can be committed recklessly may sometimes be “crimes of
violence.” Thus, the takeaway from Leocal is its instruction
to focus the § 16(b) analysis on whether the crime, by its
nature, raises “a substantial risk” of “the use of force,” id. at
10 n.7, and not on the crime‟s mens rea.
After Leocal, we held in Tran that the crime of
reckless burning or exploding10 was not a crime of violence
under § 16(b). 414 F.3d at 465. As the Supreme Court did in
Leocal, we focused on whether the crime, by its nature, raised
“a substantial risk that the actor will intentionally use force in
10 The Pennsylvania crime of reckless burning or
exploding provides as follows:
A person commits a felony of the third degree if
he intentionally starts a fire or causes an
explosion, or if he aids, counsels, pays or agrees
to pay another to cause a fire or explosion,
whether on his own property or on that of
another, and thereby recklessly:
(1) places an uninhabited building or
unoccupied structure of another in
danger of damage or destruction; or
(2) places any personal property of
another having a value that exceeds
$5,000 or if the property is an
automobile, airplane, motorcycle,
motorboat or other motor-propelled
vehicle in danger of damage or
destruction.
18 PA. CONS. STAT. § 3301(d).

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the furtherance of the offense.” Id. at 471. We concluded
that the substantial risk involved in the crime of reckless
burning or exploding is “the risk that the fire started by the
offender will spread and damage the property of another,”
which “cannot be said to involve the intentional use of force.”
Id. at 472.
In our analysis, we noted that a crime like reckless
burning or exploding, for which the mens rea is “pure”
recklessness, could not be a crime of violence under § 16(b).
Id. at 465. “Pure” recklessness, which we had defined in
United States v. Parson, exists when the mens rea of a crime
“lack[s] an intent, desire or willingness to use force or cause
harm at all.”11 955 F.2d 858, 866 (3d Cir. 1992), abrogated
on other grounds by Begay v. United States, 553 U.S. 137
(2008).12 Thus, while discussing “pure” recklessness in Tran,
11 Parson provided the following examples of “pure”
recklessness:
[A] parent who leaves a young child unattended
near a pool may risk serious injury to the child,
but the action does not involve an intent to use
force or otherwise harm the child. Similarly, a
drunk driver risks causing severe injury to
others on the road or in the car, but in most
cases he or she does not intend to use force to
harm others.
955 F.2d at 866.
12 In Parson, we held that a reckless endangering
conviction was a crime of violence under § 4B1.2(a) of the
federal sentencing guidelines. 955 F.2d at 860. In 2008, the
Supreme Court decided Begay, which held that a DUI

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we again focused the inquiry on whether the crime itself
“involve[d] any risk of intentional harm or use of force.” 414
F.3d at 471. We contrasted the “pure” recklessness crime of
reckless burning or exploding with the crime of burglary, the
“classic example” of a crime covered by § 16(b). Id. at 472
(quoting Leocal, 543 U.S. at 10). We noted that “[a] burglary
would be covered under § 16(b) not because the offense can
be committed in a generally reckless way or because someone
may be injured, but because burglary, by its nature, involves
a substantial risk that the burglar will use force against a
victim in completing the crime.”13 Id. (quoting Leocal, 543
U.S. at 10) (emphasis added). Thus, as it had been in Leocal,
conviction under New Mexico law did not fall within the
definition of a “violent felony” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), since
violent felonies were limited to offenses which “typically
involve purposeful, violent, and aggressive conduct.” 553
U.S. at 144-45 (citation and internal quotations marks
omitted). Post-Begay, we have held that “a conviction for
mere recklessness cannot constitute a crime of violence”
under the federal sentencing guidelines. United States v. Lee,
612 F.3d 170, 195-97 (3d Cir. 2010).
Though Parson was abrogated by Begay to the extent
that Begay held that a conviction of “mere recklessness”
cannot constitute a crime of violence under the federal
sentencing guidelines, Parson‟s use of the term “pure”
recklessness in the context of §16(b) was not overruled by
Begay and is still relevant to our inquiry in this case.
13 “[T]he „substantial risk‟ in § 16(b) relates to the use
of force, not to the possible effect of a person‟s conduct. …”
Tran, 414 F.3d at 472 (quoting Leocal, 543 U.S at 10 n.7).

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the focus in Tran was on whether the crime, by its nature,
raises the risk of the use of physical force – not on the mens
rea requirement in the statute of conviction.
Like Leocal, Tran supports our conclusion that some
crimes with a minimum mens rea of recklessness can
constitute crimes of violence under § 16(b). Tran teaches that
there is a subset of reckless crimes – those committed with
“pure” recklessness – that do not fit under § 16(b) for the very
reason that the perpetrator runs “no risk of intentionally using
force in committing his crime.” 414 F.3d at 465. Tran
thereby implicitly recognizes that, when such a risk does
exist, the crime does fall within § 16(b). The discussion in
Tran concerning burglary, the same “classic [§ 16(b)]
example” cited in Leocal, also suggests that some crimes that
can be committed recklessly will qualify as crimes of
violence under § 16(b). Under common law, burglary is a
specific intent crime, see Parson, 955 F.2d at 868, the intent
being to break and enter a dwelling at night to commit a
felony, BLACK‟S LAW DICTIONARY 211 (8th ed. 2004). But
for § 16(b) purposes, what is enlightening is not the mens rea
associated with the breaking and entering. It is rather the risk
of confrontation, a risk that may be only recklessly
undertaken. As Tran says, a “burglar has a mens rea legally
nearly as bad as a specific intent to use force, for he or she
recklessly risks having to [use force]” if the occupants of the
dwelling are confronted. 414 F.3d at 471 (quoting Parson,
955 F.2d at 866).
Accordingly, Leocal and Tran teach that crimes
carrying a mens rea of recklessness may qualify as crimes of
violence under § 16(b) if they raise a substantial risk that the
perpetrator will resort to intentional physical force in the

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course of committing the crime. Despite that, Aguilar asserts
that our post-Tran decisions undermine that conclusion. The
decisions he relies on, however, are distinguishable.
First, in Popal v. Gonzales, we held that misdemeanor
simple assault under Pennsylvania law was not a crime of
violence under § 16. 416 F.3d 249, 251 (3d Cir. 2005). In so
holding, we stated that we “ha[d] recently held that crimes
with a mens rea of recklessness do not constitute crimes of
violence.” Id. (citing Tran, 414 F.3d at 464). However, as
Aguilar concedes in his brief, only § 16(a) was at issue in
Popal because the simple assault was not a felony, and thus
could not qualify under § 16(b). 416 F.3d at 254. Therefore,
any discussion of § 16(b) was “not essential to the decision”
in that case, and, as such, is dicta.14
Second, in Henry v. Bureau of Immigration & Customs
Enforcement, we held that the crime, under New York law, of
possessing a loaded firearm with intent to use the same
unlawfully against another, was a crime of violence under §
16(b). 493 F.3d 303, 305-07 (3d Cir. 2007). We noted that
“[i]n Tran, decided after Leocal, we reaffirmed our precedent
from [Parson], which held that … a reckless state of mind
[does not] suffice to satisfy the requirements of §16(b).” Id.
at 307. However, since the part of the statute of conviction to
which Henry pled guilty could only have been accomplished
intentionally, our commentary in Henry on the mens rea of
recklessness is, again, dicta, because we were deciding if an
intentionally committed crime was a crime of violence under
14 We “can, of course, accord dicta as much weight as
we deem appropriate.” Galli v. N.J. Meadowlands Comm’n,
490 F.3d 265, 274 (3d Cir. 2007) (citation omitted).

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§ 16(b) and did not need to consider the reckless mens rea
analysis from Tran.15
Third, in Oyebanji v. Gonzales, we held that the crime
of vehicular homicide under New Jersey law is not a crime of
violence under § 16(b). 418 F.3d at 264. Since that crime “is
a form of reckless driving that causes death,” we found that
“Leocal‟s reasoning seems to suggest that [vehicular
homicide] is excluded from the category of crimes of
violence.” Id. We equated the “reckless conduct” required
for vehicular homicide with the “accidental conduct”
referenced in Leocal‟s analysis of the Florida DUI offense,
id. at 263-64, and specifically noted that “[i]nterpreting § 16
to encompass accidental or negligent conduct would blur the
distinction” between those lower mens rea offenses and the
“„violent‟ crimes Congress sought to” be subsumed under
§ 16(b) for “heightened punishment,” id. at 264 (quoting
Leocal, 543 U.S. at 11). Thus, the type of recklessness that
the Oyebanji court found not to qualify under § 16(b) – the
type required for vehicular homicide – only raised a
substantial risk that accidental, not intentional, force would be
used. That position is similar to the one taken in Tran and
holds open the possibility that recklessly committed crimes
that create something more than the risk of the accidental use
15 Notably, Henry re-affirmed the Tran holding that
“„§ 16(b) crimes are those raising a substantial risk that the
actor will intentionally use force in the furtherance of the
offense.‟” 493 F.3d at 307 (quoting Tran, 414 F.3d at 471).
Likewise, Popal‟s discussion emphasizes that the focus of the
§ 16(b) analysis should be on whether the crime at issue
“involves „a substantial risk that the actor will intentionally
use … force.‟” 416 F.3d at 255 (citing Tran, 414 F.3d at 472).

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of force can be crimes of violence under § 16(b). In short,
Oyebanji‟s focus on the “accidental” use of force is akin to
Tran‟s references to “pure” recklessness: it carves out a class
of reckless crimes that fail to create the substantial risk of the
use of force that is required by § 16(b).16
16 Citing to various cases from our sister circuits,
Aguilar argues that reckless crimes cannot be crimes of
violence under § 16(b). Those cases are inapposite because
they either do not involve § 16(b), or a similarly worded
statute, or they do not create the same inherent substantial risk
that force will be used, as § 3124.1 does. See Jimenez-
Gonzalez v. Mukasey, 548 F.3d 557, 561 (7th Cir. 2008)
(holding that a felony of criminal recklessness was not a
crime of violence under § 16(b) because it “does not require
any purposeful conduct” and “does not necessarily create a
risk that force may be used as a means to an end during the
commission of the offense”); United States v. Zuniga-Soto,
527 F.3d 1110, 1125 (10th Cir. 2008) (assault of a public
servant did not qualify as a crime of violence under
§ 2L1.2(b)(1)(A)(ii) of the federal sentencing guidelines;
however, that definition of a crime of violence has a provision
that is substantially identical to §16(a) but does not contain
any provision similar to the language of § 16(b)); United
States v. Portela, 469 F.3d 496, 497 (6th Cir. 2006) (reckless
vehicular assault was not a crime of violence under
§ 2L1.2(b)(1)(A)(ii) of the federal sentencing guidelines, the
same statute at issue in Zuniga-Soto); Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (misdemeanor
domestic violence assault was not a crime of violence under
§ 16(a)); Garcia v. Gonzales, 455 F.3d 465, 469 (4th Cir.
2006) (assault in the second degree for recklessly causing
physical injury by means of a dangerous instrument (an

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Thus, we have never categorically foreclosed the
possibility that a recklessly committed crime may be a crime
of violence under § 16(b), and we will not do so here.
automobile) was not a crime of violence under § 16(b)
because the reckless conduct only raised the risk that physical
injury might occur, and not the risk that force may be used as
required by § 16(b)).
Aguilar also cites to the 2008 Supreme Court decision
in Begay to support excluding from § 16(b) crimes with a
reckless mens rea. As discussed in footnote 12 supra, Begay
held that a DUI conviction under New Mexico law did not
fall within the definition of a “violent felony” under the
ACCA since violent felonies are limited to offenses which
“typically involve purposeful, violent, and aggressive
conduct.” 553 U.S. at 144-45 (internal citation and quotation
marks omitted). However, a crime of violence under § 16(b)
requires a different analysis than a crime of violence under
the ACCA. Under the ACCA, a violent felony must create a
serious potential risk of physical injury to another. Under
§ 16(b), the inquiry is whether the crime creates a substantial
risk of the use of force while committing the offense, not a
risk of injury. Cf. Tran, 414 F.3d at 472 (“[T]he „substantial
risk‟ in § 16(b) relates to the use of force, not to the possible
effect of a person‟s conduct.” (quoting Leocal, 543 U.S at 10
n.7)).

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2. Section 3124.1 is a Crime of Violence
Under § 16(b)
Having established that a crime with a mens rea of
recklessness can qualify as a crime of violence under § 16(b),
we must next determine whether § 3124.1 in particular fits
that definition and is hence an aggravated felony under 8
U.S.C. § 1101(a)(43)(F). Because we are persuaded by the
BIA‟s reasoning that “the offense of penetrating another
person without [that person‟s] consent necessarily disregards
the substantial risk of physical force being used to actually
overcome the victim‟s lack of consent,” we hold that it is a
crime of violence under § 16(b). (AR at 4.)
Our analysis begins with the plain language of § 16(b),
which requires that for sexual assault under § 3124.1 to be a
crime of violence, it must be a felony and, by its nature, raise
a substantial risk that physical force may be used during the
commission of the offense. 18 U.S.C. § 16(b). Because we
are applying the formal categorical approach, we only look to
the fact of the conviction and statutory definition of the
offense.17
17 We emphasize that we are not making any
determination as to when sexual conduct becomes non-
consensual intercourse and thus a crime under § 3124.1. That
challenge is for Pennsylvania judges and juries to decide on a
case-by-case basis. Here, a jury found Aguilar guilty of
violating § 3124.1. Under the formal categorical approach,
we may not look past that conviction to consider his
particular conduct in the underlying criminal case. The
details of what actually occurred between the victim and

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21
Section § 3124.1, a second degree felony under
Pennsylvania law, makes it an offense to “engage[] in sexual
intercourse or deviate sexual intercourse with a complainant
without the complainant‟s consent.”18 18 PA. CONS. STAT.
§ 3124.1. In addition to the ordinary meaning of sexual
intercourse, the statutory definitions of both “sexual
intercourse” and “deviate sexual intercourse” include
“intercourse per os or per anus” and “penetration.” 18 PA.
CONS. STAT. § 3101.
Since it is beyond dispute that sexual assault under
§ 3124.1 is a felony, we turn to the second requirement of
§ 16(b) and ask, using the template provided in Tran, whether
non-consensual sexual intercourse, by its nature, creates a
Aguilar are not part of our calculus and we make no comment
on them.
18 Section 3124.1 was enacted “to fill the loophole left
by the rape and involuntary deviate sexual intercourse statutes
by criminalizing non-consensual sex where the perpetrator
employs little if no force.” Commonwealth v. Pasley, 743
A.2d 521, 524 n.3 (Pa. Super. Ct. 1999). Aguilar argues that
the Pennsylvania legislature‟s inclusion of force as an aspect
of other crimes in the subchapter, including rape and
involuntary deviate sexual intercourse, strongly indicates that
the legislature did not anticipate that force would be
commonly used in the commission of sexual assault under
§ 3124.1. The operative question, however, is not whether
force will often be a feature of conduct charged under
§ 3124.1 but rather whether there is a substantial risk that
force will be used in furtherance of the offense.

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22
substantial risk that the actor will intentionally use physical
force against the victim. See Tran, 414 F.3d at 471 (“[W]e …
conclude that § 16(b) crimes are those raising a substantial
risk that the actor will intentionally use force in the
furtherance of the offense.”). We hold that it does.
As discussed in both Leocal and Tran, burglary is a
crime of violence under § 16(b) “because burglary, by its
nature, involves a substantial risk that the burglar will use
force against a victim in completing the crime.” Id. at 472
(quoting Leocal, 543 U.S. at 10). Just as a burglary creates a
substantial risk that the burglar will have to use physical force
to overcome the desire of home occupants to protect
themselves and their property, so too does a sexual assault
under § 3124.1, by its nature, create a substantial risk that the
assailant will use physical force to overcome a victim‟s desire
to protect his or her body from non-consensual sexual
penetration. If the risk of force created by an unlawful entry
into a victim‟s home qualifies under § 16(b), then surely the
risk of force when an offender is trying to enter a victim‟s
body without consent must qualify as well.
It is useful for contrast to look at the risks created by
the crimes at issue in Tran and Leocal. The substantial risk
involved in reckless burning or exploding, which was
considered in Tran, “is the risk that the fire started by the
offender will spread and damage the property of another. …
[which is a] risk [that] cannot be said to involve the
intentional use of force.” Tran, 414 F.3d at 472. The
offender does not have to overcome a victim. The substantial
risk involved in sexual assault under § 3124.1, however, is
that, to achieve non-consensual penetration, the offender will
intentionally use force to overcome the victim‟s natural

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23
resistance against participating in unwanted intercourse.
Thus, unlike the statute of conviction in Tran, sexual assault
raises a risk that can certainly be said to involve the
intentional use of force by the offender.
Sexual assault is also unlike the statute of conviction at
issue in Leocal. The Supreme Court there determined that
§ 16(b) “requir[ed] a higher mens rea than the merely
accidental or negligent conduct involved in a DUI offense,”
Leocal, 543 U.S. at 11, and concluded that a DUI offense
could not be “shoehorn[ed]” into §16(b) because in no
ordinary and natural sense could driving under the influence
raise a substantial risk of having to use physical force against
another person, id. at 11-13. In contrast, in an ordinary and
obvious sense, an offender risks having to intentionally use
physical force against a victim in the course of engaging in
non-consensual sexual intercourse.19
19 Aguilar argues that the IJ and the BIA “both
engaged in unwarranted speculation as to generalized
assumptions regarding „risk‟ and „escalation‟ scenarios which
are not categorically part of the „course of committing the
offense.‟” (Appellant‟s Opening Br. at 8-9.) However, as the
government argues, using the word “risk” in the definition of
§ 16(b) requires an inquiry into the probabilities of human
behavior. The term “risk” is defined as “[t]he uncertainty of a
result, happening, or loss; the chance of injury, damage or
loss; esp., the existence and extent of the possibility of harm.”
BLACK‟S LAW DICTIONARY 1353 (8th ed. 2004). So,
although it is true that intentional physical force may not, in
all cases, be used during the commission of non-consensual
sexual intercourse, that is not the proper inquiry. Again, the
relevant question under § 16(b) is whether there is a

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24
We therefore hold that sexual assault under § 3124.1,
by its nature, raises a substantial risk that an actor will
intentionally use force in furtherance of the non-consensual
sexual intercourse, and, accordingly, that it constitutes a
crime of violence under § 16(b).
We note that, while this is an issue of first impression
in our circuit, our conclusion finds ample support in decisions
from several of our sister courts of appeals. In United States
v. Reyes-Castro, the Tenth Circuit held that sexual abuse of a
child under Utah law was a crime of violence under § 16(b)
because “by its nature it involves a substantial risk that
physical force [may be used] against the person … of
another.” 13 F.3d 377, 379 (10th Cir. 1993) (internal citation
and quotation marks omitted). In reaching that holding, the
Tenth Circuit affirmed the district court‟s analysis of the “role
of force in crimes where lack of victim consent is an
element.” Id. The district court had analogized the statute
concerning sexual abuse of a child to Utah‟s rape statute,
which defined rape as “sexual intercourse … without the
victim‟s consent,” id. (citing UTAH CODE ANN. § 76-5-
402(1)), a definition that is closely similar to sexual assault
under § 3124.1. Because violating that rape statute was a
crime that “involves a non-consensual act upon another
person,” the court found that “there is a substantial risk that
physical force may be used in the course of committing the
offense.” Id. Thus, the court concluded that non-consensual
sexual intercourse, even without physical force, would
constitute a crime of violence under § 16(b). Id.
“substantial risk” that it will be used. Non-consensual sexual
intercourse raises that risk.

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25
The Fifth Circuit, in Zaidi v. Ashcroft, held that sexual
battery, defined by statute as “intentional touching, mauling
or feeling of the body or private parts of any person sixteen
(16) years of age or older, in a lewd and lascivious manner
and without the consent of that other person,” was a crime of
violence under § 16(b). 374 F.3d 357, 360-61 (5th Cir. 2004)
(quoting OKLA. STAT. ANN. tit. 21, § 1123(B)). The
petitioner had argued that the statute could be violated
through an “intentional, but „nonviolent,‟ physical touching,”
and thus should not qualify as a crime of violence. Id. at 360.
The Fifth Circuit disagreed, emphasizing that, “[b]ecause the
statute at issue … presupposes a lack of consent, it
necessarily carries with it a risk of physical force.” Id. at 361
(citation omitted). The court went on to say that “the non-
consent of the victim is the touchstone for determining
whether a given offense involves a substantial risk that
physical force may be used in the commission of the
offense.”20 Id. (citation and internal quotation marks
omitted).
20 Aguilar contends that Zaidi is factually
distinguishable from his case because the statute of
conviction in Zaidi requires intentional conduct and sexual
assault only requires a mens rea of recklessness. As an initial
matter, we find it hard to believe that sexual assault under
§ 3124.1 can be accomplished without intentional sexual
penetration. Further, focusing on the act – intentional sexual
penetration in sexual assault or intentional touching in Zaidi –
confuses the issue and is not the proper focus for § 16(b).
That is because neither of those acts, by themselves, raise the
substantial risk of use of force that would make them crimes
of violence. Indeed, they typically would not be crimes at all

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26
In Sutherland v. Reno, the Second Circuit determined
that the Massachusetts crime of “indecent assault and battery
on a person over the age of fourteen” was a crime of violence
under § 16(b). 228 F.3d 171, 173 (2d Cir. 2000) (Sotomayor,
J.). Although the language of the statute of conviction did not
set forth the elements of the crime, case law defined it to
include a lack of consent.21 See, e.g., Maghsoudi v. INS, 181
F.3d 8, 15 (1st Cir. 1999) (noting that, under applicable
Massachusetts law, “[l]ack of consent [i]s an element of
indecent assault on a person fourteen or older”). The Second
Circuit said that it was significant that the lack of consent was
a required element, and the court emphasized that “the
when there is consent. It is the non-consent of the victim in
§ 3124.1, as it was in Zaidi, that creates the substantial risk
of use of physical force and transforms the act into a crime of
violence under § 16(b).
21 The crime encompassed:
[a] touching ... [that] when, judged by the
normative standard of societal mores, is
violative of social and behavioral expectations,
in a manner which is fundamentally offensive to
contemporary moral values and which the
common sense of society would regard as
immodest, immoral, and improper. So defined
the term indecent affords a reasonable
opportunity for a person of ordinary intelligence
to know what is prohibited.
Id. at 176 (quoting Commonwealth v. Lavigne, 676
N.E.2d 1170, 1172 (1997)).

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27
existence of lack of consent by the victim … by its nature,
presents a substantial risk that force may be used in order to
overcome the victim‟s lack of consent and accomplish the
indecent touching.” Sutherland, 228 F.3d at 176 (internal
citations and quotation marks omitted). In support of that
contention, the court referenced an Eighth Circuit case,
United States v. Rodriguez, which held:
[T]he statutory language “may” and “substantial
risk” must not be ignored. All crimes which by
their nature involve a substantial risk of
physical force share the risk of harm. It matters
not one whit whether the risk ultimately causes
actual harm. Our scrutiny ends upon a finding
that the risk of violence is present.
979 F.2d 138, 141 (8th Cir. 1992).
Though not decided in the context of § 16(b), another
case provides support for the proposition that the non-consent
of the victim is a “touchstone” for determining whether an
offense raises a substantial risk that force will be used during
the commission of an offense. In United States v. Rooks, the
Tenth Circuit concluded that third degree sexual assault under
Texas law constituted a crime of violence under § 4B1.2(a) of
the federal sentencing guidelines.22 556 F.3d 1145, 1152
(10th Cir. 2009). Finding the Supreme Court‟s decision in
Begay instructive, the Rooks court concluded that “[s]exual
22 Specifically, Rooks was convicted of intentionally or
knowingly causing sexual penetration of a person without that
person‟s consent. Rooks, 556 F.3d at 1146.

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28
assault involving intentional penetration without consent is
similar in kind as well as in degree of risk posed to the
example crimes set forth in § 4B1.2(a)‟s commentary.” 23 Id.
at 1150 (internal citation and quotation marks omitted). The
Rooks court also found that “[t]he risk of confrontation,
another indicator of violent and aggressive conduct, is
inherent in non-consensual sexual encounters.” Id. at 1151
(internal citation omitted).24
IV. Conclusion
For the foregoing reasons, the BIA did not err in
holding that Aguilar‟s offense was a crime of violence under
§ 16(b), and thus an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). We will therefore deny Aguilar‟s petition
for review.
23 The example crimes in § 4B1.2(a)‟s commentary
include “murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling.”
U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.1.
24 A crime of violence under § 16(b) and a crime of
violence under § 4B1.2(a) do not have identical inquiries
because the former focuses on the risk that force may be used
and the latter, like the ACCA, focuses on the risk that
physical injury may occur. See Leocal, 543 U.S. at 10 n.7.
However, the analysis in Rooks regarding the effect of non-
consensual sexual penetration is instructive to the inquiry
required under § 16(b) and generally provides support for the
contention that non-consensual sexual penetration is a crime
of violence.

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