United States v. Gonzalez-Aparicio
2011 WL 2207322
| 9th Cir. | 2011Background
- Gonzalez-Aparicio, born in 1973 in Mexico, moved to the United States as a teenager.
- He was convicted in Arizona for sexual conduct with a minor under 15 (13-1405) and deported on February 23, 2000 after sentence amendments.
- After a subsequent reentry, he was removed again in 2009; on April 1, 2009 Border Patrol arrested him in Nogales for attempted illegal reentry after deportation.
- He pled guilty on August 20, 2009 to attempted illegal reentry under 8 U.S.C. § 1326, enhanced by § 1326(b)(2).
- PSR started with base level 8, added 16 levels for prior deportation after a minor-sex-offense conviction, level 22 total, criminal history III; guideline range 51–63 months; court sentenced 51 months plus 3 years supervised release.
- District court adopted the PSR, rejected a departure, and treated the prior conviction as a crime of violence (statutory rape) for sentencing, within the guideline range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 16‑point enhancement for a prior crime of violence was proper | Gonzalez contends the Arizona conviction lacks a four-year age-difference element. | Government argues the record supports the enhancement via the modified categorical approach. | Affirmed; no plain error in applying the enhancement. |
| Whether plain-error review was appropriate for a pure legal question | Gonzalez argues de novo review should apply for a pure legal issue. | Government contends plain-error review is appropriate due to lack of objection. | Majority applies plain-error review; dissent would use de novo review for a pure legal question. |
| Whether the modified categorical approach properly applied to the Arizona conviction | Gonzalez argues documentation was insufficient to meet the modified approach. | Government maintains the PSR and state-record references sufficed under the modified approach. | No plain error; proper to apply modified categorical analysis. |
| What is the governing definition of 'statutory rape' for the guidelines context here | Gonzalez asserts the Arizona statute does not match the generic statutory-rape definition with age-difference. | Government relies on Estrada-Espinoza framework and surrounding caselaw to include or not-include age-difference. | The issue is unsettled at the time; court declines plain-error reversal and proceeds with analysis under the modified approach. |
| Whether the district court relied on an inappropriate source (PSR) for the modified approach | Gonzalez argues PSR alone cannot establish the elements for the modified analysis. | Government contends the record, including court-record materials, supports the modification. | No plain error; court may rely on acceptable record materials under proper limits. |
Key Cases Cited
- Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (defines sexual abuse of a minor for the aggravated-felony context; age-difference discussion central)
- Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007) (statutory rape ordinarily means unlawful intercourse with a minor under state age of consent)
- Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007) (defines minor as under sixteen for statutory-rape context; discusses elements and approach)
- Medina-Villa, 567 F.3d 507 (9th Cir. 2009) (distinguishes the two definitions of sexual abuse of a minor under the circuit's caselaw)
- Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (addresses when a state conviction can meet the sexual-abuse-of-a-minor definition under varied scenarios)
- Castro, 607 F.3d 566 (9th Cir. 2010) (addressed whether a California statute qualifies as a 'statutory rape' crime for the purpose of a 16-level enhancement)
- Pimentel-Flores, 339 F.3d 959 (9th Cir. 2003) (plain-error concerns when relying on PSR to establish elements under modified categorical approach)
- Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (PSR recitation of facts without controlling source can be insufficient for modified-categorical analysis)
- Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. 2010) (explains limitations of modified categorical approach when statute lacks the generic element)
- United States v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010) (pure question of law reviewed de novo absent prejudice in some contexts)