United States v. Candelario Silvestre Beltran-Munguia

(“PSR”) on report RYMER, presentence The ANN Before PAMELA that he had been Beltran-Munguia noted BERZON, and RICHARD MARSHA S. sexual abuse convicted for previously TALLMAN, Judges. Circuit C. second-degree arson, under extortion, ORS section extortionate extension credit, burglary 163.425and recommended that the dwelling, district of a state, federal, impose court or local sixteen-level enhance- law offense that has as an element the attempt- ment the basis of that on conviction. Bel- use, ed or threatened use objected tran-Munguia to this recommen- of another. dation, arguing that his conviction force did not-constitute a “crime of violence” as U.S. SENTENCING GüIDELINES MANUAL defined l(B)(iii) added). § 2L1.2 cmt. n. (emphases 2L1.2(b)(l)(A)(ii), Oregon because the definition, Applying this second-degree statute criminalizes non-consensual sex sexual in Oregon abuse constitutes a and can be committed (1) without the use of “crime of only if: the crime disagreed, force. The district court in- qualifies offense,” aas “forcible sex a term Beltran-Munguia’s (2) creased offense level left by guidelines; undefined by levels, the recommended sixteen conviction of requires the crime proof of sentenced him to a 57-month “the prison term. or threatened use Beltran-Munguia timely appealed.1 another.”2

We review de novo the district court’s decision that a defendant’s A qualifies conviction for a sentencing en begin with possibility. the latter 2L1.2(b). hancement under U.S.S.G. Taylor States, v. United 495 Gonzalez-Perez, See United States v. 472 575, 600-02, 2143, 110 S.Ct. 109 (9th 1158,1159 Cir.2007). F.3d (1990), L.Ed.2d 607 the Supreme Court instructed that in determining whether a II prior conviction meets the requirements of For purpose 2L1.2(b)(l)(A)(ii), a federal provision, recidivism courts “crime of violence” is defined as: should ordinarily only look to the coverage murder, of the following: man- of the statute of conviction and not to the slaughter, kidnapping, aggravated as- specific conduct in involved the defendant’s sault, offenses, statutory sex conviction. This examination is necessari forcible minor, rape, sexual robbery, abuse of ly limited to “the elements of the crimes of are, course, Sentencing Here, however, The bility open Guidelines again. the district advisory mandatory. now rather than See court procedure did not follow that but calcu- Booker, 220, 245, v. States 543 U.S. specific lated a Guideline level and then fol- 738, (2005). 125 S.Ct. 160 L.Ed.2d 621 This lowed it. We therefore review the Guideline suggested court has twice that there are cir- determination made by and followed the dis- determining cumstances which precise in court, trict post in accord with our Booker may complicat- Guidelines sentence be more See, precedents. e.g., United States v. Gonza- worth, ed may than it is and so not be re- lez-Perez, 1158, (9th Cir.2007); 1159 quired. Jennings, See United States v. Baza-Martinez, 604, (9th Cir.2006); F.3d 606 n. 3 (9th Cir.2006). Cantrell, States v. 1279 n. 3 (9th Cir.2006); see also United States v. Cros- 2. Because ORS section 163.425 makes no by, (2d Cir.2005) (noting victim, age mention of the of the it is clear "precise situations where calculation of the from the face of the statute that second-de- applicable range may Guidelines not be nec- gree sexual categorically abuse cannot be essary”), abrogation grounds recog- on other classified as "sexual abuse of a minor” or Lake, by United nized "statutory rape.” (2d Cir.2005). 113 n. 2 possi- We leave that compulsion” con- That the same “forcible re- previously was the defendant which F.2d Selfa, apply second-degree quirement victed.” United States does Cir.1990). (9th To constitute sexual abuse is evident not from the crime, factor particular “element” of language of ORS section 163.425 but also needs to be “a ‘constituent question legislative history. history its That from proved must be offense[that] part’ makes clear ORS section 163.425was to sustain prosecution every case specific enacted to fill a “omission” given statute.” Unit- a conviction under namely, criminal the failure code— Hasan, ed make criminal “subjecting] another to Cir.1992) curiam) (internal quotation (per sexual intercourse without the victim’s con- omitted). marks compulsion.” sent —but not forcible 413, Stamper, Or.App. See State v. 197 106 plain reading A of ORS section 163.425 used, 172, (discussing P.3d a 1983 amend- attempted, clear that makes force— decidedly Oregon’s degree not an “ele- ment to second or threatened —is sexual denied, second-degree statute), 230, sexual ment” of the crime of abuse review 339 Or. Instead, (2005).3 victim’s Oregon. in abuse P.3d 790 defining the crime’s lack of consent force, inchoate, That actual or is not characteristic. of required element ORS section 163.425is statute, state Specifically, under the Oregon appel further corroborated commits the crime of sexual person [a] interpreted late decisions that have in when that degree abuse the second Those decisions make clear that a statute. subjects person to sexual person of defendant can be convicted second-de intercourse, intercourse, sexual deviate victim gree pro sexual abuse where the vagina, ... anus or penetration legally incapable of fessed consent but was any object other than the penis with Mezick, 179; it. at giving See id. State mouth of the actor and the penis or (1991); P.2d Or.App. victim does not consent thereto. Landino, Or.App. 590 P.2d State v. 163.425(1) § add- (emphasis OR. Rev. Stat. (1979). 737, 739 ed). Thus, government bears no bur- section 163.315 delineates four ORS force extrinsic to the act of proving den of all types legal incapacity apply By comparison, prose- when penetration. in Oregon sexual offenses listed crimi- in the cuting rape a defendant for either code, including second-degree sexual nal degree or sexual abuse in the first first 163.315; Lan- abuse. Ok. Rev. Stat. See 163.375(l)(a) degree under ORS sections (“That dino, types all four 590 P.2d 163.427(l)(a)(B), respectively, and the state in legal incapacity set out ORS 163.315 proving that the vic- bears the burden of- apply intended to to all sexual were “subjected compul- tim was to forcible sion,.” clear.”):4 163.375(l)(a), section §§ fenses is Under ORS Id. 163.427(l)(a)(B) added). 163.315(1): (emphasis degree. rape See original second-degree abuse "omission” as in first 3. The 163.375(l)(d). adopted was in but treated the statute Or Stat. Rev only A See offense as Class misdemeanor. (1971). interpreted 163.415 In an earlier version of 4. Landino Or. Stat. Rev. statute, Oregon's second-degree codified as section 163.425 and sexual abuse statute was 163.415, which de- felony. C We note that as ORS section reclassified as Class codified offense, part, follows: fined the in relevant as now also criminalizes this exact incapable person capacitated.” A is considered of con- She would legally then be act if senting to a sexual is: incapable of consent even if participat- she (a) fully ed years age; Similarly, the sex act. Under defective,” “mentally yet victim could be (b) defective; Mentally fully physically cooperative. Under both (c) incapacitated; or Mentally circumstances, those a perpetrator would (d) Physically helpless. necessarily attempt have to 163.315(1). OR. ORS section Rev. Stat. or threaten to use force above and 163.305, turn, defines the terms “men- beyond the force inherent the act of defective,” tally “mentally incapacitated,” penetration, p. see to commit infra “physically helpless.” Id. second-degree sexual abuse. other 163.305(3)-(5). “mentally To defec- words, circumstances, under such perpe- tive,” example, for “means that a trator categorically would not have com- suffers from a mental disease or defect violence,” mitted a “crime of as the term is incapable appraising renders[her] defined person.” the nature of the conduct of the 2L1.2(b)(l)(A)(ii). 163.305(3). “mentally Id. To be incapac- itated,” the victim must have been sure, To be a victim second-degree of incapable appraising rendered or con- could, reality, sexual abuse have been trolling the the person conduct of at the subjected to force during the commission alleged time of the offense because of of the crime. In defining the term “with- the influence of a controlled or other consent,” out legis- [her] the state intoxicating substance administered to lature only included not victims “consid- person without the consent of the ered to be incapable consenting as a person any or because of other act com- law,” matter of but also who victims were upon person mitted without [her] “forcibly compelled to submit” and victims consent. acquiesce who did “not in the actor’s con- 163.305(4). Finally, Id. to “physically duct.” Stamper, 106 (citing P.3d at 176 to helpless,” the victim must have been “un- the Commentary to Criminal Law Revision any or for conscious other reason [was] Proposed Commission Oregon Criminal physically unable to communicate unwill- Code, §§ Final Draft and Report 163.305(5). ingness to an act.” Id. 1971)). (July But the possibility that ex- applicability

Given the of ORS section trinsic force was used in some fashion in 163.425, 163.315 to ORS section a perpe- the commission of the crime does not make trator could commit second-degree sexual it an essential “element” of second-degree abuse surreptitiously adding to vic- his sexual way, abuse. Put another even if a tim’s drug drink a that affects judg- one’s defendant did use force to commit his of- ment, thereby rendering “mentally fense, her in- prosecution bore no burden to statute, A commits the crime of sexual abuse abuse codified as ORS section 163.425, degree subjects in the second if he specific contains more definition of contact; type to sexual and of "sexual contact” at issue and has (a) (a) (b) The replaced subparts victim does not consent to the also and with the contact; sexual general language or "the victim does not consent (b) incapable The victim is Despite change, consent thereto.” this Landino re- defective, law, being mentally reason of good men- mains language the new re- tally incapacitated physically helpless. garding encompasses consent still the four 163.415(1) (1971). Or. Rev. categories The cur- legal incapacity listed in section Stat.

rent Oregon’s second-degree version of Stamper, 163.315. See 106 P.3d at 176. fact, necessarily government that as the could involves the use or prove threatened crime, in some other use of force as an lack of consent element of the establish burden, por- “rape”— fashion. Absent such this Yanez-Saucedo held that 2L1.2(b)(l)(A)(ii)’s an “aggravated felony,” tion of “crime of vio- which is but not a categorically ap- per definition does not se “crime of lence” violence”—need not in- clude such ply- element. As the wording careful of Yanez-Sauce B indicates, do this circuit has never held otherwise, government argues

The and that a sex crime can be considered to circuit’s doing, support so claims this force,” require the “use of as an element of that agree prece- case law. We do not our crime, simply because it involves the support proposition dents penetration. act of While we have never 2L1.2(b)(l)(A)(ii) applies pos- where it is expressly possibility, ruled out that accomplish will be used sible force majority of other circuits have. See Unit sex prosecution crime but the need not Sarmiento-Funes, ed States v. prove it was. Cir.2004) (rejecting that “the Yanez-Saucedo, penetration 295 act of enough sup itself is example, ply 2L1.2”); F.3d 991 in- required Meader, markedly question volved a different than United States v. (1st Cir.1997) There, presented

the one here. the court 881-82 (concluding that a charged determining statutory rape was with whether offense did not involve the force,”' third-degree rape, as defined under “use meaning Wash- within the law, 4B1.2, ington “aggravated constituted an fel- though penetration U.S.S.G. even ony” crime); § 2L1.2. Id. at 992. Like the was involved in the United States here, (7th Oregon Shannon, Washing- statute at issue v. Cir.1997) (en banc) (same); ton statute Yanez-Saucedo criminalizes but see United (11th non-consensual sex.5 Ivory, Id. at 995. Un- States v. Cir.2007) like the “crime of violence” definition (concluding used that a state offense 2L1.2(b)(l)(A)(ii), 4B1.2(a)(l) purposes for howev- was a categorical match for er, aggravated felony, an under the same because the “nonconsensuaí act of sexual guideline, including “rape,” is defined as in penetration its nature involves at least general. at In holding physical Id. 993-94. that some level of pressure force and third-degree rape an aggravat- against person’s body”). constituted directed felony, ed only may Yanez-Saucedo concluded While the Eleventh approach Circuit’s that particular that crime a have common appeal, “fit[ ] within sense it does not generic, contemporary rape, satisfy statutory requirement definition of that an can, which but in- necessarily, does “element” of the crime involve “the an physical beyond physi clude element of force or threatened use that required penetration.” against person for Id. at 996 cal force of another.” added). words, Hasan, (emphasis In other far (explaining See indicating from that nonconsensuaí sex that an “element” be a “constituent must conduct, Washington pressed by 5. Under Revised Code section the victim’s words or or 9A.44.060(1), person guilty (b) [wjhere of third-de- there un- is threat of substantial gree rape engaged if he in sexual intercourse: property rights lawful harm to of the victim.” "(a) the victim did not ... [w]here consent 9A.44.060(1). Wash. Rev. Code clearly and such lack of consent was ex- (internal quotations mitted when the woman’s resistance is offense” part of the added)).6 omitted) fear, overcome force or or under other (emphasis added)). prohibitive (emphases conditions” Yanez-Saucedo, in Castro-Baez Like in A prior rape conviction for under Califor- Reno, Cir.2000), it 261(a)(3) nia Penal Code section therefore unnecessary to find force as a was also “rape” and an qualified “aggra- as thus as conviction. element of the requisite felony” immigration vated under the stat- There, to decide whether a we were asked Yanez-Saucedo, then, ute. Id. Like Cas- rape conviction under defendant’s tro-Baez held that a sexual offense 261(a)(3) section California Penal Code that covers nonconsensual sexual inter- felony” within qualified “aggravated as an “rape” can be for purposes course feder- 101(a)(43)(A) Im- meaning al provisions using term. Act, Nationality migration and U.S.C. 1101(a)(43)(A). Cortez-Arias, Id. at 1058. California “rape” inapplicable of section is also defines 261(a)(3) here, including “an act of sexual for a as albeit different reason. Cortez- accomplished per- Arias held that the “threatened use of “[w]here intercourse” any prevented resisting by physical against person son is from force of anoth- substance, intoxicating portion or anesthetic or er” U.S.S.G. 2L1.2(b)(l)(A)(ii)’s substance, and this condi- controlled “crime known, reasonably inherently should have encompasses tion was definition “acts by the accused.” Id. at 1059 that communicate person been known to another (alteration original) (quoting CAL. PE- intent to use (internal 261(a)(3)) quota- suggesting NAL CODE acts omitted). explained may tion in force that person impend- marks ordinary usage, ing.” Castro-Baez that Id. at 1116. The “[i]n second- rape degree is understood to include the act of sexual abuse does not statute es- engaging required in non-consensual sexual inter- tablish as a element such commu- ability to suggestive course with a whose resist nicative or acts. See also Unit- Anderson, substantially impaired by drugs ed has been “ (9th Cir.1993) Id.; or other see also id. (holding intoxicants.” that where a ‘vio- (citing Dictionary felony’ defini- lent that Black’s Law includes crime ‘has as use, use, rape tion of an “act of sexual inter- an element attempted as or physical course committed a man with a woman threatened use force ” consent, another,’ not his wife and without her com- threat of “[a] addition, battery the Eleventh Circuit case law tion for cannot be considered a crime violence, Ivory differently that underlies has evolved meaning within the of 18 U.S.C. Compare than similar case law in our circuit. 16), (citing § and id. at a 1016-18 series of that, Ivory, (explaining 475 F.3d at 1235 un- proposition Ninth Circuit cases for the that precedent, der Eleventh Circuit crime of battery, as criminalized under various state element, "simple battery” has "as the use statutes, categorical cannot be a "crime of attempted or use of force” because it violence”), (explaining and id. at 1016 insulting "physical involves of an or contact 'squarely "we have held that the force neces- nature”), provoking Ortega-Mendez with sary a [under to be crime of violence Gonzales, Cir. 16(a)] § actually U.S.C. must be violent in 2006) (explaining held that have "[w]e ” (citing Singh Ashcroft, nature' involving touching conduct mere offensive (9th Cir.2004) (internal quotation does not rise to the level of a ‘crime of vio- omitted))). ” marks lence,’ that, result, a as a convic- n a is an element of a our force outcome. Cortez-Arias dictates this if conclusion, crime the crime must involve as it declined to transfer to the omitted) (emphasis (quot- 2L1.2(b)(l)(A) threat of force” § context a holding prem- 924(e)(2)(B)(i))). § ing 18 U.S.C. ised on the “serious risk” language 4B1.2(a): § Finally, Riley, support does Cortez-Arias sentencing received a en- government’s Riley submission either. hancement § under USSG 2L1.2. The concerned conviction under Louisi- commentary to that section defines a that, “simple rape” ana’s statute —a statute “crime of violence” somewhat differently 163.425, much like ORS section criminal- 4B1.2(a)_ § than does Nei- nonconsensual, necessarily izes but not commentary ther[§ nor its 2L1.2] ex- forceful, sexual intercourse. See id. at plicit words refer to crimes that “involve n. 2 La. (quoting Rev. Stat. ANN. presents conduct that a serious risk of (1998)). however, § Riley, 14:43 involved physical injury to another.” separate Sentencing Guideline from the Accordingly, we conclude that ... [a 4B1.2, § namely, one at issue which here — holding that case] California Penal Code materially defines “crime of violence” in section 246 ais “crime of violence” [for different terms than 2L1.2. §of because it 4B1.2] involves 4B1.2(a), Under a “crime of violence” presents conduct that a serious risk of felony is a federal or state that: physical injury to another does not nec- (1) has as an element the essarily resolve question of whether or threatened use of the same offense is a “crime of violence” another, against the person of or for purposes of USSG 2L1.2. (2) arson, burglary dwelling, of a or (citing extortion, explosives, involves use of Weinert, (9th Cir.1993) 1 F.3d 889 (per presents otherwise involves conduct that curiam)); Paxton, see also United States v. potential physical inju- serious risk of (10th Cir.2005) (ex ry to another. that, plaining as a result of the difference U.S. SENTENCING GUIDELINES MANUAL 2L1.2, §§ between 4B1.2 and an offense 4B1.2(a) added). (emphases Although is not a crime violence under part the first of this definition mirrors phys 2L1.2 because it the use of “laek[s] language some used the commen- ical force as an element” can nonetheless tary 2L1.2(b)(l)(A)(ii), part the second abe crime of violence under 4B1.2 “be particular, the words definition—in injury”), cause of an inherent risk of physical presents “otherwise involves conduct that , — —, rt. 126 S.Ct. denied ce potential a serious physical injury risk of 1403, (2006); 164 L.Ed.2d 103 United § unique to another” —are to 4B1.2. It Jaimes-Jaimes, States v. 406 F.3d Riley upon

was those words that relied (7th Cir.2005) (explaining that “simple rape” when it held that constituted ‘“crime of violence’ is defined nar more violence, a crime of emphasizing poten- the §in rowly 2L1.2 than in other contexts tial risk of violence inherent in all sexual because the definition does not encompass crimes. at See 183 F.3d 1157-58. merely acts ... that harm pose risk of to § Because 4B1.2 contains the “serious person”). potential physical injury” risk of catchall provision applicable containing to There are cases in our circuit 2L1.2(b)(l)(A), which, context, Riley does not control language taken out of can

1050 tez-Arias, precisely concern “crime which does phrase that the suggest be read to that issue. carry to interpreted of must throughout guide the meaning the same holding that of Cortez- note the defining language in lines, the even when that supported by the fact Arias See, e.g., differs. particular guidelines 1.2(a) un § 4B “crime of violence” defines Pereira-Salmeron, 337 United States encompassing, addi der that section as Cir.2003) (9th (writing that F.3d violence, of per tion to the list of se crimes that term “there is no indication that as an element “ha[ve] both offenses to mean is intended violence’] of [‘crime or threatened use provision for something [one] different of of physical elsewhere”); States v. it does than another,” in that “otherwise and offenses Cir.2004) (9th Granbois, F.3d presents conduct that serious volve[] Granbois, (same). and Pereira-Salmeron injury anoth physical risk of to potential however, equate 4B1.2’s “serious do not er,” to applicable while the definition injury” prong 2L1.2(b)(l)(A)(ii) physical of potential only risk the for contains Sentencing as an element of the with 2L1.2’s “force phrase. Compare mer 4B1.2(a), equate instead with id. prong, crime” but Guidelines Manual l(B)(iii). equate of the cmt. n. To per aspects crimes of violence 2L1.2 se Pereira-Salmeron, though phrase even one has a See two sections two definitions. length entirely of some absent from the discussing (noting, at 1154 after principles other would violate established in dicta results reached proscribing interpretations of construction guideline, of another provision catchall See, surplusage. e.g., that assume mere specific issue before us is that “[t]he Stevens, ... whether Pereira-Salmeron’s conviction (9th Cir.2006); United States Wen category of ‘sexual abuse of falls within the ” Cir.2003). (9th ner, In Granbois, minor,’ per category); se stead, it is that the catchall lan evident (noting at 995 that Pereira-Sal § 4B1.2 than the guage of is broader “explained involving meron that crimes provision language applicable catchall to per minor are sexual abuse of a se ‘crimes ” § 2L1.2. violence,’ following holding application consider the declining while Riley’s reliance on the Nor does words injury” physical risk of “serious injury potential physical “serious risk of 4B1.2); provision catchall second-degree another” mean Asberry, necessarily in Oregon abuse involves the Cir.2005) Granbois, (stating that we “[i]n force.” In ex- “threatened use interpreting ‘sexual held in the context “risk,” plicating Riley what it meant abuse a minor’ that ‘there is no indica rape, act whether reasoned tion that is intended [“crime violence”] overtly “merely” forceful or nonconsensu- something different’ in section to mean al, always atmosphere “creates an that fos- (sec 4B1.2 than it does in section 2L1.2” potential ters the confronta- original) (emphasis added) add ond alteration (emphasis at tion.” 183 F.3d ed) 996)). Granbois, (quoting how, (explaining involving simple in cases Because these cases did not concern the rape, point “if the victim realize[s] application of 4B1.2’s catchall “serious perpetrator that the not her husband [is] 2L1.2, language controlling stupor, risk” or if the out of her victim[comes] easily of this is Cor- escalate into a precedent purposes for case the situation could confrontation”). 243.4(a), qualifies But the “threat- as a conviction a violent for “forcible sex offense” and therefore as a physical use” of force is not the same ened conviction for a “crime of violence” under “potential physical use” of force. as not, 2L1.2. held that We does be use” it “Threatened 2L1.2(b)(l)(A)(ii) cause “under the California battery sexual an element of must be statute, touching may ‘ephemeral,’ be crime, a communi- specific and denotes or committed without the use of force.” cation, by explicit implicit, or the defen- Id. at 929.7 In so holding, we relied on may threat —not a risk that occur dant —a several other Ninth Circuit cases re of the action that constitutes as result quire degree some of force to label crime the offense. INS, (citing

“violent.” See id. Ye v. (9th Cir.2000), proposi F.3d 1128 for the tion that “the necessary to constitute short, because ORS section 163.425of a crime of violence actually must [] Oregon Revised Statutes not does nature,” Ashcroft, violent in and Singh v. make “the or threat- (9th Cir.2004), 386 F.3d 1228 declining as force” an element of ened use to make a conviction under an Oregon abuse, second-degree the crime of sexual categorical harassment statute a crime of Beltran-Munguia’s conviction does it, violence “because did not involve the qualify not as a “crime of (alteration requisite use of force” origi §, 2L1.2(b)(l)(A)(ii) of our anal- prong this nal) Ye, 1133) (inter (quoting 214 F.3d at ysis. omitted)). nal quotation marks itWhile circuit, recognized that other cases our C Granbois, like Pereira-Salmeron and had Beltran-Munguia’s prior conviction does held that “sexual abuse of minor” is a qualify as a “crime of violence” under 2L1.2, Lopez- “crime of violence” under 2L1.2(b)(l)(A)(ii)’s “forcible sex of- distinguished Montanez those cases fenses”, either. Not surprising- alternative concluding that our case law nor “[n]either ly, given language, interpreted its we have supports the statute ... the proposition phrase “forcible sex offenses” as re- that the commission of a ‘forcible sex of force, quiring interpretation the use of an against an fense[ individual who is not a ]’ that precludes application to the minor constitutes a if crime violence the crime here at issue. require statute of conviction does not (alteration Lopez-Montanez, States v. 421 use of force.” Id. at 930 original). “rejected] govern F.3d 926 concerned whether It thus a conviction under California’s sexual bat- ment’s invitation to read out ‘forcible’from ” statute, tery California Penal Code section ‘forcible sex offenses.’ Id.8 otherwise, 8. The Circuit Under the California statute: Third has concluded holding that a “forcible sex offense” does not Any person part who touches an intimate require "application direct some person while that is unlaw- Remoi, force.” See F.3d fully by the restrained accused or accom- (3d Cir.) curiam), (per denied cert. plice, touching and if the is the will U.S. -, - 126 S.Ct. 163 L.Ed.2d purpose touched and is for the are, however, (2005). bound Lo arousal, gratification, of sexual sexual Gammie, pez-Montanez. See Miller v. abuse, guilty battery. of sexual (9th Cir.2003) (en banc) (hold 243.4(a) added). (emphasis ing three-judge panel may that "a not over Cal. Penal Code unless the rule decision court”

1052 “subsequent prior occurred to” portation

D reject argument.10 conviction. this We already have determined Although we degree in the second that abuse Supreme recent Court and Under require the use of categorically does not jurisprudence, Ninth Circuit Almendarez- force, categorical ap modified under the States, 224, 523 118 Torres v. United U.S. consider whether proach separately we 1219, (1998), holding L.Ed.2d 350 S.Ct. that any judicially noticeable facts show prior that fact of a conviction need not the in fact convicted of Beltran-Munguia was beyond a proven jury to a reasonable abuse committing second-degree sexual doubt, good judge may law. So a remains of force. See through the use United prior find the fact of a conviction—includ Rivera-Sanchez, 905, v. F.3d apparent that conviction ing facts about (en (9th Cir.2001) banc); Lopez-Mon cognizable the docu from the face of so, tanez, Doing at 931-32.9 we Book ments —to enhance sentence. See the additional docu that none of conclude er, 738; 244, Appren at 125 S.Ct. U.S. by sentencing judge— ments examined 466, 489-90, 120 Jersey, di v. New 530 U.S. document, judgment, charging (2000); 2348, 147 L.Ed.2d 435 S.Ct. a court order for HIV plea agreement, Quintana-Quintana, States v. reg offender testing, and the notice sex (9th Cir.2004) (order); see also Beltran-Munguia istration —establish Beng-Salazar, United States involving a crime the use was convicted of (9th Cir.2006) (holding of force. nothing post-Apprendi Supreme in two States, cases, Shepard Court v. United result, Beltran-Munguia’s convic- As 13, 125 S.Ct. 161 L.Ed.2d 205 second-degree sexual abuse under tion of (2005), Haley, and Dretke v. 541 U.S. to a “crime of Oregon law does not amount (2004), 124 S.Ct. 158 L.Ed.2d 659 categorical violence” under the modified Almendarez-Torres). overrules approach. held, contrast, have that dis We Ill trict Apprendi courts do commit error argues finding prior on its own both the fact of Beltran-Munguia next prior his Fifth and Sixth removal and the fact of conviction. judge district violated finding Zepeda-Martinez, that his de- See rights by Amendment (9th Cir.2006). Given that none of the avail- "prior decision ... been undercut [has] higher authority an extent that it has to such able documents here make mention of overruled”). effectively force, been question today. we need not resolve this 9. decide whether the modified do not Although Beltran-Munguia’s we vacate categorical approach be used to decide if can sentence, current we reach this claim because constitutes a "crime of conviction likely again we it is to be raised if do not. On provision under the that defines remand, will have the district court to recal- 2L1.2(b)(l)(A)(ii) "any to include offense guidelines appropriate level. See culate use, attempted ... an element the that has as Cantrell, so, doing 1280. In threatened use of question of reliance on the sexual abuse in another.” We have degree again, second conviction will arise be- approach previously that this assumed both 2L1.2(b)(1)(C) eight- cause allows for an Compare apply not. does and that it does Martinez-Martinez, where a conviction level increase consti- "aggravated felony.” tutes an United States with U.S. Sentenc- ing Piccolo, 1084, 1086-86, 2L1.2(b)(l)(C). 1088 n. 7 Guidelines Manual (9th Cir.2006); Unit abandoning 912-13 are the role of common sense Covian-Sandoval, in fashioning ed States appropriate punishment (9th cert. de Cir.2006), repeat offenders like Beltran-Munguia. — nied -, yields Our current case law S.Ct. result (2007). case, minimizes a crime L.Ed.2d 355 But in this Bel effected exploiting a helplessness. victim’s For tran-Munguia pleading admitted when of a enhancement, “crime of violence” guilty that he I have was removed from the Unit conceptual characterizing difficulties April ed States “on or about 2005.” And the physical penetration “force” of imposed the date of his conviction under on ORS unwilling an victim as different April section 2000 — was kind 163.425 — from the imposed readily apparent judi from over- several come the unwillingness. victim’s cially noticeable documents to the From the available could, perspective, victim’s both district court. The district acts are “violent” court therefore, surely Nevertheless, and readily non-consensual. conclude that Beltran- say I cannot Munguia “subsequent was removed to” his offense re- quires conviction, prosecution prove making any without factu findings apparent physi- al from threatened use of the face of conviction. See cal force to sustain a documents. Almendarez- Unit- the conviction Hasan, ed States v. (9th Torres is therefore binding on us in this Cir.1992). case. slate, I writing Were on a clean I would

IV hold that the Oregon categori- conviction conclusion, In sentencing judge cally qualifies aas “crime of violence” be- erred Beltran-Mung- when he enhanced cause it a specifically enumerated of- levels, uia’s sentence sixteen namely,, a “forcible sex offense.” fense — 2L1.2(b)(l)(A)’s pro- “crime of violence” view, my In a sex offense committed result, vision. As a we vacate Beltran- against an unconscious victim is as much a Munguia’s sentence and remand for resen- “crime of violence” as a sex involv- offense tencing. ing physical force against committed a con- circumstances, scious In both victim.

VACATED AND REMANDED. perpetrator commits act RYMER, Judge, Circuit with whom victim’s will. The law presumes were Judge joins, Circuit TALLMAN competent capable giving victim concurring. consent, not, she would and that she would resist the as best she could. assault slate, writing

If we were aon clean I would hold that pen- non-consensual Sentencing Neither Guidelines nor etration falls within plain meaning commentary their define “forcible sex of “physical force.” See United v. Ivo- States fenses.” I Were not confined (11th Cir.2007). ry, 475 F.3d 1232 Lopez-Montanez, F.3d 926 interpret I would the unde TALLMAN, Judge, Circuit with whom fined term-—-“forcible sex offenses” —to en Judge joins, Circuit concurring. RYMER compass noneonsensual In sex crimes. I am by precedent bound to concur. I “ordinary, con-temporary, and common however, write separately, United States v. Trinidad- parlance,” because of the injustice precedents. Aquino, resulting 1140, 1145 Cir.2001), from our technicians, good legal our zeal to be person’s we “forcible” denotes an act previously crimes deemed inher- encompass all acts sent—to should

will. “Forcible” violent); will, ently Ivory, re- United States v. 475 against the victim’s undertaken (11th Cir.2007) 1232, (recogniz- in- F.3d 1236 perpetrator gardless of whether “in- force, penetration that nonconsensual ing threat- physical flicts the assault force, physical the victim’s volves at least some level of cripples or physical ens against per- directed pressure and ability to consent. Bashaw, 50, body”); 296 Or. son’s State language and the Com The Guidelines’ (1983) 48, (considering rape 672 P.2d 49 interpretation. this compel mission’s intent violence”). as “degradation crime of well as offenses,” like other listed “Forcible sex statutory language In addition to the Guidelines’ e.g., rape, offenses — intent, minor, a fundamen extortionate extension of and the Commission’s abuse of a statutory credit, dwelling supports tal rule of construction burglary and —auto violence,” offenses” to en matically qualify interpreting as “crimes of “forcible sex compass an all sex acts taken a vic of whether force is essential regardless Specifically, v. Pereira- tim’s will. courts should not States element. See United (9th Salmeron, interpret provision way one in a that ren 337 F.3d Cir. 2003). part The Commission amended the ders another same statute su Fish, commentary perfluous. November 2003 United States v. 368 F.3d Guidelines’ (9th Cir.2004). Along need clarify that enumerated offenses these “ lines, completely ‘no definition should not involve the actual ” another.’ or threatened use of force. See subsumed within (9th Stevens, 1169, 1171 Asberry, States v. United States Cir.2005) Cir.2006) (9th lan (tracking evolving (quoting Lopez- 2L1.2) Solis, (9th n. guage (citing of section U.S. Sen Cir. 2006)). Commission, By defining Guidelines Manual “forcible offenses” tencing sex Amend., C, only a app. encompass group amend. Reason for narrower (2003)). offenses, i.e., a “forc 397-402 those offenses with element, compulsion” ible the “has as an Sentencing selected The Commission element” definition section treatment as certain offenses deserve 2L1.2(b)(l)(A)(ii) subsumes “forcible sex se, per probably crimes of violence because offenses,” renders the phrase mean inherently im- pose the selected crimes reason, ingless. For this we would be plicit “threatened use of force.” Pereirar- interpret better advised to the term as did Salmeron, at 1152. Further- the Third Circuit in United v. Re States more, language “indicates the Guidelines’ (3d Cir.2005). moi, 404 F.3d 789 intent to cover crimes Commission’s Remoi, implicit that involve an use of force or a the court concluded that a potential Jersey substantial for violence.” Id. defendant’s New conviction offenses fall penetration against physically help- 1153. Nonconsensual sex less, defective, category mentally mentally within crimes. See this inca- Yanez-Saucedo, 991, pacitated victim constituted a “forcible sex (9th Cir.2002) offense,” (rejecting the notion and thus a “crime of violence.” that rape compulsion explained absent a forcible ele- Id. at 794. The court that the force); ment any degree lacks United Commission “did not mean to limit ‘forc- v. Riley, involving ible sex offenses’ to those Cir.1999) force, (likening simple rape application of direct op- as —inter- posed type compulsion,” course without the victim’s lawful con- to some other discussion, provision interesting su- academic does no doing so renders where The court fur- sentencing Id. at 794-95. real harm to discretion. Nev- perfluous. considers ertheless, that the Commission ther noted there is confusion in our case per minors “forcible se law, sex crimes urge and I our court to revisit because a minor lacks offenses” sex precludes classify- us from precedent relations, to sexual capacity to consent ing nonconsensual sex as “crime of vio- Id. the relations “forcible.” which makes 2L1.2(b)(l)(A)(ii). lence” under section equally logic applies Because the at 795.1 join should the Third Circuit and de- We victims, the types of vulnerable to other fine sex offenses” to include “forcible concluding had no trouble Third Circuit act against sexual committed the victim’s against “physically a penetration Remoi, will or consent. See 404 F.3d at mentally mentally defective or helpless, Judge correctly ap- Because Berzon 796. constituted a “forc- incapacitated” victim here, I plies existing precedent circuit re- 404 F.3d at ible sex offense.” Remoi luctantly concur. Finally, recognized the court 795. November 2003 Sentencing Commission’s clarifying that an enumer-

Amendment as always as a “crime qualifies

ated offense violence,” regardless of whether Id.; employed physical force. perpetrator America, UNITED STATES Luciano-Rodri- see also United States v. Plaintiff-Appellee, (5th Cir.2006) guez, (Owen, J., dissenting) (concluding legally intercourse without effective Kyulle Jay STRONG, Defendant- scope of consent falls within the “forcible Appellant. history offenses” based on the behind sex No. 06-10566. definition). Appeals, States Court of post-Boofc- this may find Ninth Circuit. advisory regime that Guidelines

er/Fanfan judges dispense can nonetheless district Argued and Submitted Feb. 2007. an sen- justice fashioning appropriate Filed June like Beltran- tence for recidivist offenders so, gymnas- If then the mental Munguia. here, panel’s opinion though

tics of the compulsion. The Commission re- 1. In the Commission amended section forcible by defining of violence” with 2L1.2 “crime vised the definition in 2003 to list "sexual "(including parenthetical sexual abuse of previous because the abuse of a minor” child)” offenses.” Asber- after “forcible sex definition led to confusion about whether ry, the Commission 716. In offenses, particularly specified sexual abuse of of “crime of further amended the definition minor, had to include as an element "the to list “sexual abuse of minor” phys- threatened use of applied separately. Id. The 2002 version another.” As- ical force Though Remoi. the 2004 edition of (citing Sentencing berry, at 716 case, reasoning applies Guidelines in this C, app. amend. Rea- Guidelines Manual persuasive. That the Commission in Remoi is Amendment, (2003)). Had son for a minor” as an once cited "sexual abuse of intended that "forcible sex the Commission supports example offense” “forcible sex physical force or a threat of offenses” involve extending the term to all sex acts taken force, at the same time. it could have said so will, involving just a victim’s those

Case Details

Case Name: United States v. Candelario Silvestre Beltran-Munguia

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 7, 2007

Citation: 489 F.3d 1042

Docket Number: 06-30118

Court Abbreviation: 9th Cir.