United States v. Tafoya-Montelongo
659 F.3d 738
9th Cir.2011Background
- Tafoya-Montelongo pleaded guilty to illegal re-entry after deportation under 8 U.S.C. §1326, enhanced by §1326(b)(2) due to a prior deportation after an aggravated felony conviction.
- Prior Utah convictions: attempted sexual abuse of a child (April 2006) and unlawful sexual activity with a minor (July 2006); victim under 14.
- First conviction involved touching the girl; plea admitted to attempting to touch a girl under 14.
- Tafoya-Montelongo was deported on or about November 15, 2007.
- Final PSR added a 16-level enhancement under §2L1.2(b)(1)(A)(ii) based on the attempted sexual abuse conviction, yielding a guideline range of 63–78 months; district court sentenced to 52 months after a variance.
- On appeal, Tafoya-Montelongo challenges only the 16-level enhancement; he did not argue below that the conviction was not a crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 16-level enhancement applies to the prior conviction | United States argues the conviction qualifies as a crime of violence | Tafoya-Montelongo contends the conviction is not a crime of violence | Yes; the 16-level enhancement applies under the modified categorical approach. |
| What standard of review governs the sentencing issue | Plain error review applies | De novo review applies for guideline interpretation | Plain error review applies to this sentencing issue. |
| Whether the prior conviction satisfies the two-definition framework for sexual abuse of a minor under the generic definitions | Record supports with the first generic definition (sexual conduct with a minor) or second definition | Constitutional and definitional challenges not raised below; relies on alternative interpretations | The conviction satisfies the generic definition of sexual abuse of a minor under either framework;16-level enhancement affirmed. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (Supreme Court, 1990) (categorical vs. modified categorical approaches to prior convictions)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (defines modified categorical approach for prior state convictions)
- Grajeda, 581 F.3d 1186 (9th Cir. 2009) (assists in defining 'crime of violence' for guidelines)
- Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (two generic definitions of sexual abuse of a minor; per se abuse under one)
- Johnson v. United States, 130 S. Ct. 1265 (U.S. 2010) (modified categorical approach; use of charging documents and plea records)
- Castro, 607 F.3d 566 (9th Cir. 2010) (application of modified categorical approach to determine qualifying predicate)
- Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) (recognizes abuse definitions to evaluate prior conduct)
- Farmer, 627 F.3d 416 (9th Cir. 2010) (sex abuse of a minor framework guidance)