United States v. Oscar Gallegos-Galindo, 2013 U.S. App. LEXIS 1115

Defendant Oscar Gallegos-Galindo was reentry in the United States, charged in 2011 and pled guilty to the indictment.
PSR treated his 2008 Washington rape in the third degree as a forcible sex offense, triggering a 16-level crime-of-violence enhancement under § 2L1.2(b)(1)(A).
The 2008 conviction involved a non-consent sexual act with a juvenile victim and a separate plea noting lack of consent.
Guidelines were amended in 2008 to include as forcible sex offenses those where consent is not given or legally valid, removing need for extra force beyond penetration.
The district court sentenced Gallegos-Galindo to 52 months within the Guidelines range, after denying a downward departure.
The issue on appeal is whether the 2008 amendment can be applied to the defendant’s 2008 offense for purposes of the 2011 sentencing, and whether the record supports treating the conviction as a crime of violence under the modified categorical approach.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2008 amendment applies to the crime-of-violence enhancement here	Gallegos-Galindo argued the pre-2008 standard should apply (additional force required).	Gallegos-Galindo urged against applying the 2008 expansion at sentencing.	Amendment 722 applies; no pre-2008 standard required.
Whether the conviction qualifies as a crime of violence under the modified categorical approach	Record shows lack of consent fits forcible sex offenses under 2L1.2, cmt. n.1(B)(iii).	Disputed whether conduct fits the generic definition of crime of violence.	Conviction qualifies as a crime of violence under the modified categorical approach.
Whether the district court erred by not requiring force beyond penetration to classify as forcible sex offense	Amendment 2008 eliminated need for extra force; lack of consent suffices.	Espinoza-Morales required additional force post-amendment in certain contexts.	Lopez-Montanez does not control post-2008; the 2008 enumeration applies here.
Whether the Ex Post Facto Clause requires applying pre- or post-2008 Guidelines	If retroactivity harmed defendant, pre-2008 should apply.	No retroactive disadvantage because offense occurred after amendments.	No ex post facto issue; use post-2008 Guidelines for the current offense.

United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (determines crime-of-violence standard for § 2L1.2(b)(1)(A))
United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009) (plain-error review for unaired challenges to COA)
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. 2007) (defined forcible sex offenses prior to 2008 Amendment)
Lopez-Montanez, 421 F.3d 926 (9th Cir. 2005) (pre-2008 standard requiring extra force for forcible sex offenses)
Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010) (post-amendment treatment in a timing context; discussed ex post facto implications)
United States v. Alfaro, 336 F.3d 876 (9th Cir. 2003) (ex post facto and guideline application timing)
United States v. Sandoval-Lua, 499 F.3d 1121 (9th Cir. 2007) (modified categorical approach requires element admission/indictment alignment)
Taylor v. United States, 495 U.S. 575 (U.S. Supreme Court, 1990) (framework for categorical and modified categorical approaches)
Shepard v. United States, 544 U.S. 13 (U.S. Supreme Court, 2005) (documentation admissible under modified categorical approach)
United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (permissible judicially noticeable documents under modified categorical approach)
United States v. Bonat, 106 F.3d 1472 (9th Cir. 1997) (predicate conviction determination for enhancement)