United States v. Irvin Sandoval-Orellana, 714 F.3d 1174

Sandoval-Orellana, born in Guatemala in 1979, was admitted as a lawful permanent resident in 1992.
He was convicted in California in 2003 of sexual penetration by a foreign object under Cal. Penal Code §289(a)(1).
He was removed in 2010 after being found deportable as an aggravated felon under INA §237(a)(2)(A)(iii).
In 2010-2011 he attempted to reenter at the San Ysidro port of entry, leading to an indictment for attempted entry after deportation (8 U.S.C. §1326).
He moved to dismiss the indictment arguing the underlying deportation was invalid; the district court denied the motion.
He ultimately pled guilty to the charge and received a 57-month sentence; on appeal, he challenges both the removal decision and the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PC §289(a)(1) is a categorical crime of violence	Sandoval-Orellana argues §289(a)(1) is not a violent felony under §16(b).	The government contends the ordinary-case conduct of §289(a)(1) involves substantial force risk and is a crime of violence under §16(b).	Yes; §289(a)(1) is a crime of violence under §16(b) in the ordinary case.
Whether the duress-based form of §289(a)(1) can avoid §16(b) classification	Duress may remove violence risk, so §289(a)(1) could fall outside §16(b).	Even with duress, the ordinary-case risk of force remains, and §16(b) applies.	No; despite possible duress, §289(a)(1) ordinarily presents a substantial risk of force, so qualifies under §16(b).
Collateral attack on deportation under 8 U.S.C. §1326(d)	Sandoval-Orellana claims prejudice from improper deportation review.	Because he was convicted of an aggravated felony, he cannot show prejudice.	Affirmative; he cannot establish prejudice since he is an aggravated felon.
Reasonableness of the sentence under 18 U.S.C. §3553(a)	Requests a below-Guideline sentence based on rehabilitation and other factors.	Guideline range is appropriate given the crime and offense factors.	The fee sentence of 57 months at the low end of the advisory range was reasonable; no plain error in explanation.

Taylor v. United States, 495 U.S. 575 (1990) (categorical approach in determining Crimes of Violence)
James v. United States, 550 U.S. 192 (2007) (ordinary-case focus for §16(b) analysis)
Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006) (statutory rape not categorically a crime of violence due to consent issues)
Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. 2005) (principles on substantial risk of force in offenses involving sexual conduct)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (limits on judicial imagination in expanding crime definitions)
United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. 2003) (de novo review of whether prior conviction is a crime of violence)
Rita v. United States, 551 U.S. 338 (2007) (when to require explanation for within-Guidelines sentencing)
Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion standard for reviewing sentences)
Overton v. United States, 573 F.3d 679 (9th Cir. 2009) (quando non required to articulate every detail of reasoning)
Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (test for collateral attack on deportation orders)
United States v. Olano, 507 U.S. 725 (1993) (plain error standard)