United States v. Doroteo Rocha-Alvarado, 2016 U.S. App. LEXIS 22005

Rocha‑Alvarado, a Mexican national, previously pled no contest in Oregon to three counts of attempted sexual abuse in the first degree (Or. Rev. Stat. § 163.427) for touching a nine‑year‑old’s vagina, breast, and lips; he was deported and later illegally reentered the U.S.
At sentencing for illegal reentry (8 U.S.C. § 1326), the PSR recommended a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the Oregon conviction being a “crime of violence.”
The district court adopted the enhancement, producing a Guidelines range of 46–57 months, then varied downward and sentenced Rocha‑Alvarado to 30 months.
On appeal, Rocha‑Alvarado argued his Oregon conviction did not categorically match the federal generic offenses (sexual abuse of a minor or forcible sex offense) because the plea indicated the touching occurred outside clothing, and federal sexual‑abuse definitions (18 U.S.C. § 2243/2246) exclude touching over clothing.
The Ninth Circuit applied the modified categorical approach (statute is divisible between §163.427(1)(a) and (1)(b)); the plea admitted facts placing the conviction under §163.427(1)(a).
The court held that any conviction under §163.427(1)(a) (subdivisions (A) victim <14; (B) forcible compulsion; (C) incapable of consent) necessarily fits within the Guidelines’ definitions of either “sexual abuse of a minor” or a “forcible sex offense,” so the 16‑level enhancement was proper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rocha‑Alvarado’s Oregon conviction is a "crime of violence" under U.S.S.G. § 2L1.2	The government: the conviction under §163.427(1)(a) is a crime of violence because it fits the Guidelines’ categories (sexual abuse of a minor or forcible sex offense).	Rocha‑Alvarado: the conviction is not a categorical match because the plea shows touching occurred over clothing, and 18 U.S.C. §2243/2246 exclude touching over clothing from federal "sexual abuse of a minor."	Affirmed: conviction under §163.427(1)(a) necessarily matches the generic federal definition as either sexual abuse of a minor or a forcible sex offense; enhancement applies.

Taylor v. United States, 495 U.S. 575 (establishes the categorical approach for comparing state offenses to generic federal crimes)
Descamps v. United States, 133 S. Ct. 2276 (limits use of record materials to the modified categorical approach when a statute is divisible)
Mathis v. United States, 136 S. Ct. 2243 (clarifies divisibility and when the modified categorical approach applies)
Medina‑Villa v. Mukasey, 567 F.3d 507 (9th Cir.) (interprets "sexual abuse of a minor" broadly for §2L1.2 purposes)
Baron‑Medina v. INS, 187 F.3d 1144 (9th Cir.) (upheld that a statute criminalizing sexual touching with sexual intent constitutes sexual abuse of a minor)
Quintero‑Junco v. Lynch, 754 F.3d 746 (9th Cir.) (discusses post‑2008 amendment scope of "forcible sex offense" in Guidelines)
Beltran‑Munguia v. Gonzales, 489 F.3d 1042 (9th Cir.) (discussed earlier, narrower view of forcible sex offense prior to 2008 amendment)