United States v. Facundo Acosta-Chavez
2013 U.S. App. LEXIS 16840
| 9th Cir. | 2013Background
- Facundo Acosta‑Chavez pled guilty in Illinois (2005) to Aggravated Criminal Sexual Abuse for touching the breasts of a person "at least 13 years of age but under 17" while he was at least five years older; he was sentenced to 3 months jail + probation and later removed from the U.S.
- He illegally reentered the U.S. in 2011, pled guilty to illegal reentry under 8 U.S.C. § 1326, and was sentenced to 30 months imprisonment.
- At sentencing the district court applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because it treated the Illinois conviction as a "crime of violence" (a forcible sex offense / sexual abuse of a minor).
- The Government on appeal abandoned the "sexual abuse of a minor" theory and pressed only that the Illinois offense was a "forcible sex offense."
- The Ninth Circuit reviewed whether (1) the Illinois statute categorically matches the federal/generic definition of a forcible sex offense and (2) whether the modified categorical approach could be used to identify a qualifying offense under Descamps v. United States.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Illinois Aggravated Criminal Sexual Abuse conviction is a "forcible sex offense" qualifying as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). | Gov: Sex offenses involving minors are inherently forcible; the Illinois conviction therefore qualifies. | Acosta‑Chavez: Illinois statute covers ages that federal "minor" definition does not; conviction cannot categorically qualify. | The Illinois statute is broader (13–16 vs. federal <16) and indivisible as to age; conviction does not categorically qualify as a forcible sex offense. |
| Whether the modified categorical approach may be used to identify a qualifying offense. | Gov: If categorical approach fails, courts may consult plea documents to identify the factual basis and find a qualifying offense. | Acosta‑Chavez: The Illinois age element is not divisible into alternatives, so Descamps bars the modified categorical approach. | Descamps controls: because the Illinois statute is not divisible as to age (it uses a range, not alternative elements), the modified categorical approach is unavailable. |
| Whether the district court error in applying the 16‑level enhancement was harmless. | Gov: District court said it would have imposed the same 30‑month sentence even under the correct (lower) Guideline range. | Acosta‑Chavez: The sentencing calculation error affected the Guidelines range and extent of variance; harmlessness not established. | Error was not harmless—the court’s boilerplate that it would impose the same sentence was insufficient to discharge the Government’s burden. |
| Whether resentencing should be assigned to a different judge. | Gov: No reassignment necessary. | Acosta‑Chavez: Reassignment advisable to preserve appearance of justice because original judge said she would impose the same sentence regardless. | Court declines reassignment; remand to original district judge is appropriate absent unusual circumstances. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach may be used only for divisible statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (established the categorical approach to determining qualifying predicate offenses)
- United States v. Gonzalez‑Aparicio, 663 F.3d 419 (9th Cir.) (interpreting "minor" in statutory‑rape context as under sixteen)
- United States v. Munoz‑Camarena, 631 F.3d 1028 (9th Cir. 2011) (district court must explain extent of a variance from the Guidelines; mere statement of imposing same sentence is insufficient)