Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252) TATES OF A MERICA , No. 09-50164 Plaintiff-Appellee, (cid:253) D.C. No. v. 3:08-CR-00881-W-1 E DUARDO C ASTRO , OPINION (cid:254) Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Argued and Submitted January 13, 2010—Pasadena, California Filed March 26, 2010 Before: Alfred T. Goodwin, William C. Canby, Jr. and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin COUNSEL Anthony E. Colombo, Jr., San Diegо, California, for the defendant-appellant.
Steve Miller, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.
OPINION
GOODWIN, Senior Circuit Judge:
Eduardo Castro, convicted of attempted reentry into the United States after removal in violаtion of 8 U.S.C. § 1326, appeals his forty-six month sentence. Castro’s sentence includes a sixteen-level increase in offense level for a prior conviction under California Penal Code section 288(c)(1), which criminalizes lewd or lascivious аcts on a child of 14 or 15 years by a person at least ten years older than the child. Cal. Penal Code § 288(c)(1). Castro argues that a conviction under section 288(c)(1) does not constitute a “crime of vio- lence” warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A). U.S. Sentencing Guidelines Manual “U.S.S.G.” § 2L1.2(b)(1)(A) (2009). We have jurisdiction under 28 U.S.C. § 1291. We hold that a con- viction under California Penal Code section 288(c)(1) cate- gorically constitutes neither “sexual abuse of a minor” nоr “statutory rape” and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro’s sentence and remand for resentencing.
Castro also argues that the district court imposed an unrea- sonable sentence and that it erred by increasing the statutory maximum under 8 U.S.C. § 1326(b) because Castro’s prior conviction was neither alleged in the indictment nor admitted by him. Because we vacate Castro’s sentence, we do not address whether the sentence was reasonable. Nor do we reach his argument that the district court erred by increasing the statutory maximum because, as Castro concedes, that argument is foreclosed by precedent. See, e.g. , United States v. Garcia-Cardenas , 555 F.3d 1049, 1050 (9th Cir. 2009).
FACTUAL AND PROCEDURAL BACKGROUND On March 12, 2008, immigration and border patrol agents arrested Castro while executing a search warrant at the home of his ex-wife, who had been arrested two or three weeks ear- lier for smuggling illegal aliens into the United States. Castro, а citizen of Mexico, had been deported in 2003 after pleading guilty to committing lewd or lascivious acts on a child of 14 or 15 years, a felony, under California Penal Code section 288(c)(1).
On March 23, 2009, Castro pleaded guilty to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. At sentencing, the district court concluded that Castro’s prior conviction under section 288(c)(1) constituted “sexual abuse of a minor” and was therefore a crime of vio- lence for purposеs of sentencing enhancement. The court found a base offense level of eight, U.S.S.G. § 2L1.2(a); a sixteen-level increase based on a prior conviction for a crime of violence, id. § 2L1.2(b)(1)(A)(ii); and a three-level decrease for acceptance of responsibility, id. § 3E1.1, and sentenced Castro to forty-six months in prison and three years of supervised release. Castro timely appealed.
DISCUSSION
[1] Castro contends that his prior conviction under Califor- nia Penal Codе section 288(c)(1) does not qualify as a crime of violence warranting a sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A). For a violation of 8 U.S.C. § 1326, the Sen- tencing Guidelines provide for a base offense level of eight and instruct that the offense level be increased by sixteen levels “[i]f the defendant previously was deported . . . after . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). For purposes of the Sentencing Guidelines, “crime of violence” includes, inter alia, “sexual abuse of a minor” and “statutory rаpe.” Id. at cmt. n.1(B)(iii). We hold that section 288(c)(1) is broader than the generic offenses of both statutory rape and sexual abuse of a minor and that it therefore is not categori- cally a crime of violence. To determine whether a conviction under section
288(c)(1) constitutes either “sexual abuse of a minor” or “stat-
utory rape,” we apply the categorical approach set forth in
Taylor v. United States
,
[3] The statute of conviction, California Penal Code sec- tion 288(c)(1), criminalizes the conduct of “[a]ny person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child.” Cal. Penal Code § 288(c)(1). Section 288(a), in turn, applies to “[a]ny person who willfully and lewdly commits any lewd or lasciviоus act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” Id. § 288(a). Section 288(c)(1) therefore contains the following four elements: (1) willfully and lewdly; (2) commit- ting any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendаnt must be at least ten years older than the child. Using the categorical approach, we first compare sec-
tion 288(c)(1) to the generic crime of sexual abuse of a minor.
“Sexual abuse of a minor” contains three elemеnts: (1) sexual
conduct; (2) with a minor; (3) that constitutes abuse.
United
States v. Medina-Villa
,
[5]
Section 288(c)(1), however, is categorically broader
than the generic definition of “sexual abuse of a minor.”
Although it contains two elements of the generic crime—(1)
sexual conduct; (2) with a minor—it is brоader than the
generic crime because it criminalizes conduct that does not
necessarily constitute abuse. Section 288(c)(1) does not
expressly include physical or psychological abuse as an ele-
ment of the crime. Moreover, unlike section 288(a), which
applies only where the minor is younger than 14, section
288(c)(1) does not address conduct that is per se abusive.
See
Pelayo-Garcia v. Holder
, 589 F.3d 1010, 1015-16 (9th Cir.
2009) (concluding that sexual conduct with a 15-year-old
child is not per se abusive). Section 288(c)(1) is thеrefore
broader than the generic crime of sexual abuse of a minor.
We next compare section 288(c)(1) to the generic
crime of statutory rape. “Statutory rape,” as set forth by an en
banc panel in
Estrada-Espinoza
, contains four elements: “(1)
a mens rea level of knowingly; (2) a sexual act; (3) with a
minor between the ages of 12 and 16; and (4) an age differ-
ence of at least four years between the defendant and the minor.”
[1]
Although
Estrada-Espinoza
addressed whether a statute of conviction
cоnstituted an “aggravated felony” in the immigration context, 8 U.S.C.
§ 1101(a)(43), and the present case concerns whether the statute of convic-
tion constitutes a “crime of violence” in the sentencing context, U.S.S.G.
§ 2L1.2, the analysis is the same.
See Pelayo-Garcia
, 589 F.3d at 1013
n.1;
Medina-Villa
,
Section 288(c)(1) is broader than the generic definition of
“statutory rape.” It contains three of the required four ele-
ments: it applies to minors within the generic crime’s dеsig-
nated age range; it requires an age difference greater than the
generic crime’s required four years; and it contains the mens
rea requirement because, in this context, a defendant cannot
act “willfully” without also acting “knowingly.” This is so
bеcause the mens rea requirement of “knowingly” applies
only to the defendant’s act of engaging in a sexual act,
Pelayo-Garcia
,
than “statutory rape” because it is missing one element of the generic crime, a “sexual act.” For purposes of the generic offense of statutory rape set out in 18 U.S.C. § 2243, “sexuаl act” is defined as follows:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subpara- graph contact involving the penis occurs upon pene- tration, however slight;
(B) contact bеtween the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or аrouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the cloth- ing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arоuse or gratify the sexual desire of any person.
18 U.S.C. § 2246(2). Thus, for purposes of statutory rape, “sexual act” requires, at a minimum, an intentional touching, not through the clothing, of a minor’s genitalia. Section 288(c)(1), however, contains no such require-
ment; it requires only a “lewd or lascivious” act. Lewd touch-
ing, for purposes of section 288, can occur through a victim’s
clothing and can involve any part of the victim’s body.
People
v. Martinez
,
Where, as here, the government has not asked us to apply
the modified categorical approach, we do not do so.
See Latu
v. Mukasey
,
VACATED and REMANDED for resentencing.