The Third Circuit has determined that in 2000, the Uniform Code of Military Justice (UCMJ) did not distinguish between forcible sodomy and voluntary sodomy. The court held that the accompanying sentencing guidelines, promulgated by the president, which allow for a sentencing enhancement in cases involving forcible sodomy, cannot override the plain text of the statute for the purposes of the categorical analysis. To hold otherwise would violate the separation of powers doctrine, which permits only Congress to define the elements of federal criminal statutes. Because consensual sodomy has been held to be a protected activity by the Supreme Court in Lawrence v. Texas, a conviction under the sodomy statute, as codified in the UCMJ in 2000, is not a removable offense. The court noted that the UCMJ has since been amended to criminalize only forcible sodomy, so this decision will not apply to convictions for sodomy under the current version of the UCMJ.
The full text of Chavez-Alvarez v. Attorney General can be found here: