*1
2K2.1(a)(2)
by
sentencing
by
under U.S.S.G.
found
court
a prepon
offense level
history points
See,
criminal
under
and his
derance
e.g.,
evidence.
4A1.1(a).
disagree.
We
“Dou
Pirani,
U.S.S.G.
543,
States v.
551 & n. 4
permissible if the Sentenc
counting
(8th Cir.)
ble
(en banc),
denied,
cert.
546 U.S.
that
intended
result and
ing Commission
909,
(2005).
266,
126 S.Ct.
separate notions. One ad gravity particular
dresses the of The addresses the
fense. other need to activity criminal
deter future this de Wyckoff,
fendant. See United States v. (11th Cir.1990). Thus, engage court did not in imper district QUINTERO- Alberto Rene counting. missible double SALAZAR, Petitioner, Second, Phillips argues that the
district court violated the Sixth Amend ment as construed United States v. KEISLER,* Acting Attorney Peter D.
Booker, 543 U.S. 125 S.Ct. General, Respondent. (2005), in Apprendi L.Ed.2d 621 No. 04-73128. Jersey, New 530 U.S. (2000), L.Ed.2d 435 imposing a Appeals, United States Court of
four-level enhancement for use of a fire Ninth Circuit. arm in felony connection with another of submitting fense without that issue to the Argued and Submitted Nov. 2006. 2K2.1(b)(5) (Nov. jury. See U.S.S.G. Filed Oct. 2003), 2K2.1(b)(6). now U.S.S.G. This contention is without merit. Because the
sentencing guidelines advisory are under
Booker, enhancements advisory
guidelines range may be based upon facts
* States, predeces- Peter D. Keisler is substituted for his pursuant General of the United to Fed. sor, 43(c)(2). Acting Attorney R. R.App. Alberto P.
Zachary Nightingale, Hout, Van Der Brigagliano Francisco, & Nightingale, San CA, argued the cause petitioner; for the Hout, Marc Hout, Van Der Van Der Bri- gagliano Nightingale, Francisco, San & CA, was on the brief. Molina, Jr.,
Ernesto H. Litigation Senior Counsel, Office of Immigration Litigation, Division, Civil Department United States Justice, Washington, D.C., argued the respondent; cause for the Peter D. Keis- States citizens. dren are all United General, David Attorney ler, Assistant repair runs a home Director, Divi- Civil Bernal, Assistant Y. employs he Justice, business at which maintenance Department sion, States citizens. several United D.C., on the brief. were Washington, 1998, Quintero-Salazar pleaded nolo In to the delin- contributing contendere of CaLPenal quency of a minor violation engaging in intercourse with KLEINFELD ANDREW J. Before: years younger than the minor who is three THOMAS, Circuit R. and SIDNEY in violation of CaLPenal Code perpetrator LEIGHTON,** B. Judges, and RONALD *4 261.5(c), intercourse engaging and in Judge. District years age is under 16 of a minor who with years age is 21 of perpetrator when the THOMAS; Dissent by Judge Opinion Code in violation of CaLPenal older KLEINFELD. judge 261.5(d). to eleven He was sentenced at- and ordered to imprisonment months THOMAS, Judge: Circuit rehabilitation counseling and other tend of question the presents This case probation offi- as directed his programs is cate- CaLPenal whether cer.1 turpitude crime a gorically U.S.C. meaning of the within 2, 2002, Quintero-Salazar was April On 1182(a)(2)(A)(i)(I), alien making thus an from visit returning to the United States not, and that it is conclude removable. We he was detained family in Mexico when ing from the con- for review grant petition the Naturalization Immigration and by the Immigration of of the Board trary decision (“INS”) in seeking admission upon Service (“BIA”). Appeals 12, 2002, the April Francisco. On San began appear to and filed a notice INS I Quintero-Sa proceedings against removal being an inadmis lazar, him with charging is a citi- Quintero-Salazar Alberto Rene 212(a)(2)(A)(i)(I) under INA alien who entered sible of Mexico zen and national a crime in convicted of having been his for obtained States the United January turpitude.2 On volving moral and became conditional residence application an Quintero-Salazar filed in 1994. Resident a Lawful Permanent excludability on grounds of of for waiver wife, step-chil- and two three children His ** Quintero involved he is have learned how Leighton, I B. The Honorable Ronald will be for Judge District and how hard it for the Western his children District with States by designation. Washington, sitting She apart from their father.” to be them very caring and "is Quintero-Salazar he "is a father” thereafter, adds that began Shortly family only but also responsible about his Program, not which is participating in the SAFER Quintero-Salazar’s probation relapse-prevention program for therapy workers.” a and his Quintero-Salazar’s therapist in reported as that he "has ex-offenders. also adds officer responsi- very basis, program that he "is the writes regular counsel- attended directed on treatment,” and, already after about his ble full.” and fees in ing paid all fines ... requirement of one a SAFER complying with attend- therapy, has started year individual the appear relied on 2. The notice deepen aware- therapy "to his ing additional (d) 261.5(c) and not the §§ convictions Quintero-Salazar’s therapist also of- ness.” § 272 conviction. Mr. time I have known “[i]n fers it hardship would cause his tude within meaning
the basis of
of 8 U.S.C.
1182(a)(2)(A)(i)(I).
pursuant
and children
U.S. citizen wife
“To
determine
212(h).
INA
whether a specific crime falls within a par
category
ticular
of grounds for removabili
removability
with
can
charged
ap-
Aliens
ty, we apply
categorical
and modified
ply
a waiver if their removal would
for
categorical approaches set forth in Taylor
hardship
result
in extreme
to a United
States,
v. United
495 U.S.
spouse
citizen
or children.
See 8
(1990).”
2143,
II moral turpitude” immigration law, under it (1) The BIA erred in holding that a vile, “must be a crime that is base or 261.5(d) (2) violation of Cal.Penal Code depraved is violates societal moral categorically a crime turpi- moral Gonzales, standards.” Navarro-Lopez v. (BIA 3. Dingena, 1966). See Matter 11 I & N Dec. 723
693
(9th Cir.2007) (en
continued monogamously without
inter
F.3d
1072
503
years
banc).
course for two to three
willfully” or
before
It “must
be done
also
face,
offending
On its
event.
such behav
v.
“evil intent.” Fernandez-Ruiz
with
(9th
may
ior
and socially unaccepta
be unwise
1159, 1165-66
Cir.
base,
to
it
many,
“inherently
ble
but
is not
INS,
2006);
also
see
Michel
vile,
INS,
or depraved,” Hamdan v.
98
(“it
(2d Cir.2000)
in the
is
intent
(5th
Cir.1996),
accompa
F.3d
or
way
inheres ....
turpitude
that moral
one
aby
mind,”
nied
“vicious motive or corrupt
a crime
whether
involves
to determine
Michel,
at
263. Nor is it “so far
act
whether the
is ac
contrary
“give
to the moral law”
rise
corrupt
motive or
companied
vicious
to moral outrage.” Navarro-Lopez,
at
mind”).
only statutorily
Where an act is
short,
In
the conduct
does
discussed
inherently wrong,
rather than
prohibited,
not meet
the first Fernandez-Ruiz
re
not involve moral
generally
the act
will
quirement
being an “act
of baseness
INS,
Beltran-Tirado
turpitude.
contrary
depravity
accepted
moral standards.”
Cir.2000)
(noting
dif
F.3d
ndez-Ruiz,
Ferna
F.3d at
prohibitum, an
ference between malum
1165-66.
only statutorily prohibited,
act
13599 and
261.5(d)
Indeed,
proscribes
con
some
se,
inherently wrong).
an act
malum
duct that
prohibitum.
is malum
We know
turpitude,
there to
“the
For
be
it is
prohibitum
malum
not malum in
of depravi
involve some level
[must]
un
se because some conduct criminalized
contrary
ty or baseness ‘so far
to the
legal
der
if
would be
the adult
rise to
gives
moral law'
moral out
married.
minor were
CahPenal
See
at 1071
rage.” Navarro-Lopez,
(quoting
261.5(a)
(defining
“unlawful sexual
n.
DeGeorge, 341 U.S.
Jordan
*6
261.5(d)
purposes
for
as
intercourse”
of
(1951)
703,
(Jackson,
95
71
L.Ed. 886
S.Ct.
involving
a person
intercourse “with
who is
J., dissenting)).
perpetrator,
not the
of the
if the
spouse
The statute at issue here is Cal.Penal
minor”);
§
is
person
a
Cal. Fam.Code
302
261.5(d),
provides:
§
Code
which
(permitting
marry
a minor
with written
21
Any person
years
age
of
or older who
order).
a
parent
consent of a
and
court
in an act of unlawful
engages
sexual
prohibitum
also know it is malum
We
minor who is under
intercourse with a
261.5(d)
is
because some conduct under
of
of
a
years
age
guilty
16
either
in
Ann.
legal
other states. See Ark.Code
felony,
misdemeanor or a
and shall be
(2006)
5-14-125(a)(3)
in
(criminalizing
by
county
in a
punished
imprisonment
minors who
or
tercourse with
are fourteen
year,
jail
exceeding
by
not
one
or
im-
(2006)
under);
§Ann.
16-3-655
S.C.Code
two,
prisonment
prison
state
the
for
(same).
Finally,
purpose
California’s
three,
years.
or four
reveals that
it was not
passing the law
words, among
range
the
con- moral,
In other
of
pragmatic-they
so much as
were
261.5(d),
criminalized by
duct
would be
teenage
attempting
pregnancies.
to reduce
a 21-year-
consensual intercourse between
Superior
See Michael M.
Court
Sono
of
sophomore)
464,
a
a
(possibly
college
old
and
ma
450 U.S.
County,
(1981) (“the
years,
(possibly
who is 15
months
justifica
minor
11
Because
cases,
in at
some
facts would allow
prohibitum,
least
noticeable
the defendant
malum
an
than
categorically be a crime moral
to be convicted of
offense other
it cannot
261.5(d)
offense,”
Moreover,
a
it
qualifying
because
that defined as
turpitude.
used
liability
strict
crime that does not
cannot be
as a basis for removal. Id.
is a
scienter,
Casarez-Bravo,
any showing
(quoting
lacks
United States v.
require
(9th Cir.1999)).
or evil
requisite element of willfulness
181 F.3d
1077
“As
required by
repeatedly,
government
as
Fernandez-Ruiz.4 we have noted
intent
clearly
has the
to establish
burden
reasons,
these
we conclude that
For
the conviction
on
unequivocally
was based
261.5(d)
criminalizes
Cal-Penal
predi
qualifying
all of the elements of a
that contem-
that is broader than
conduct
cate offense.” United States v. Navidad-
1182(a)(2)(A)(i)(I).
plated under 8 U.S.C.
Cir.2004)
(9th
Marcos,
F.3d
Therefore,
categorically
is not
Velasco-Medina,
(citing United States v.
within the
Cir.2002);
305 F.3d
United
meaning
immigration
of the
statutes.
Pimentel-Flores,
States v.
(9th Cir.2003); Corona-Sanchez,
Ill
1211).
F.3d at
If the crime of conviction does
categorically
predicate of
qualify
not
as a
Here,
evidence that the
statute, it
may
under a federal
still
fense
government tendered was the fact of con
analysis.
under a
qualify
categorical
modified
Therefore,
any
judi
viction.
absent
other
ona-Sanchez,
at
Cor
facts,
cially
application
noticeable
approach
categorical
Under
modified
categorical
modified
not al
approach does
“
judicially
we examine
‘documentation
analysis.
ter our
clearly
noticeable facts that
establish
”
predicate
conviction is a
conviction’
IV
purposes.
(quoting
for removal
Id.
Rivera-Sanchez,
States v.
Because
crime of conviction
not
does
(9th Cir.2001) (en banc)). Under the
qualify
crime involving
turpi-
*7
government
Nagle,
having
v.
aggravated
4. The
cites Bendel
17
count of
committed an
fel
(9th Cir.1927),
eighty-
ony.
ques
F.2d
720
but that
Because we need not reach that
tion,
year-old
does
Maryland
analysis.
case involved a
statute dif
not control our
Afridi
preced
the one at
ferent from
issue here
Likewise, our
in
court’s recent decision
Unit
categorical
ed both the
of the
establishment
Gomez-Mendez,
v.
ed States
695 “manifestly involves moral years” of 15 meaning of 8 U.S.C. tude within said, dicta, in 1182(a)(2)(A)(i)(I), have that turpitude.”2 the BIA and IJ erred We turpi- a “crime moral “statutory rape” was re- is of Quintero-Salazar that finding in 3 not removable he was tude.” Because movable. tur- a crime of moral having committed “consistently ... Our court has also held question of not reach the we need pitude, statutory rape prohibiting laws sexual that of for a waiver eligible he was whether proscribe contact with a minor under 16 hardship excludability on the basis of min constituting sexual abuse of a conduct and chil- citizen wife cause his U.S. would or,”4 felony.5 have aggravated an We 212(h). INA pursuant to dren Quintero-Salazar’s crime is even said that PETITION GRANTED. precedents a “crime of violence.”6 These view, room, my leave no for us to con KLEINFELD, Judge, Circuit that the crime is not one of moral clude dissenting: aggravated felony. an turpitude or is not conclude, as the BIA I would therefore dissent. respectfully
I concluded, ineli was the con- compels me to reach Precedent gible for a waiver.7 Quintero- that the crime of which clusion majority opinion of the argument a crime of The convicted is indeed was Salazar language statutory strong. Under some The crime is turpitude. moral in Fernandez by a our circuit’s recent decision intercourse specifically sexual rape, might there be real under 16.1 -Ruiz v. person 21 with a person over Quintero-Salazar’s having question as whether that “the crime of have held We But turpitude.8 age crime is one of of a ... child of the knowledge carnal Gomez-Mendez, 261.5(d). 6. United States v. See also United 1. Cal.Penal Code Gomez-Mendez, (9th Cir.2007). 601 (9th Cir.2007) range (concluding that the "full proscribed by Cal.Penal Code conduct 1182(h)(1)(B) ("No waiver 7. See 8 U.S.C. 261.5(d)” "statutory meets the definition granted case of an alien be ... in the shall rape”). previously to the Unit- been admitted who has lawfully admitted for ed States as an alien (9th Nagle, 17 F.2d Cir. 2. Bendel v. date of permanent if ... since the residence INS, 1927); Rodriguez-Herrera v. also see been convicted admission the alien has such (9th Cir.1995) ("[W]e have F.3d ....”). aggravated felony of an knowledge having of a that ... carnal found turpi year ... involve[s] old female Gonzales, 468 F.3d 8. See Fernandez-Ruiz tude.”). Cir.2006) ("[WJhile (9th spous 1165-66 INS, act,” 3. Gonzalez-Alvarado may depraved al abuse be a “base 1994). ("Typically, crimes of moral Cir. sufficient for a crime that factor alone is not *8 However, we have turpitude fraud. involve turpitude: the act must moral to constitute ... category acts ... such as included in this Indeed, willfully.... this cir also be done turpitude statutory rape, which involve generally requires 'willful precedent cuit's nature.”) (internal quotation very their to be order for a crime ness' or 'evil intent’ in omitted). marks turpi as one classified emphasize similarly Other circuits tude .... Lopez-Solis, 4. United States to a moral willfulness is critical Cir.2006). 1205-06 INS, generally Michel determination. See (2d Cir.2000) ('[Cjorrupt ("The 1101(43) 'aggra- term 5. See 8 U.S.C. turpi of moral murder, is the touchstone scienter rape, felony' ... or sex- vated means tude.').”). ”). a minor.... ual abuse of was about domestic ass Fernandez-Ruiz implications think that the
ault.9 I do not language in a domestic assault case specific holdings
can our overcome specifically more
strong speaking dicta
Quintero-Salazar’s precedent crime. Our (as opposed
on the crime at issue to the language have
implications of we written crimes) me
about other leaves unable to
join majority. GUGLIELMINO;
Carlo Briant Chun-
Hoon, Plaintiffs-Appellants, CORPORATION,
McKEE FOODS Corporation,
a Tennessee Defendant-Appellee. Zusman, Francisco, CA, Edward S. San argued the cause and filed briefs for the
No. 05-16144. plaintiffs-appellants. Kevin K. Eng, San Appeals, United States Court of Francisco, CA, was also on the briefs. Ninth Circuit. TN, Pickering, William H. Chattanooga, argued Argued Aug. and Submitted the cause and 2007. filed brief for the defendant-appellee. Anthony Jackson, A. Filed Oct. TN, Chattanooga, Dixon, R. Brian San
Francisco, CA, Hoffman, and Michael San Francisco, CA, were also on the briefs. Before: DIARMUID F. O’SCANNLAIN, MICHAEL DALY HAWKINS, and KIM McLANE WARDLAW, Judges. Circuit Opinion by Judge O’SCANNLAIN; *9 Concurrence Judge O’SCANNLAIN. Id. at 1161.