United States v. Gonzalez-Aparicio

DATED: 9/27/10 Audrey B. Collins

/s/ COLLINS, B.

AUDREY UNITED

STATES DISTRICT JUDGE America,

UNITED STATES of

Plaintiff-Appellee, GONZALEZ-APARICIO,

Isaias

Defendant-Appellant.

No. 09-10447. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Dec. 8, 2011.

Filed June Lally (argued),

Robert Miskell Assistant Tucson, AZ, Attorney, appel- U.S. for the lee. CJA, amended; (argued), imposing Buchella Sentence condition

Jeffrey Glenn year jail Tucson, AZ, replaced by vacated and condi- appellant. for the (Id.) days jail.” imposing

tion Gon- zalez-Aparicio deported to Mexico on 23, February that: The PSR went on state represented by The defendant was COWEN,* A. Before: ROBERT E. pleaded counsel. Court records show he and BARRY G. WALLACE TASHIMA guilty charg- to Count of indictment SILVERMAN, Judges. Circuit ing “engaged that in November 1998 he in sexual intercourse or oral sexual con- COWEN; by Judge by Dissent Opinion tact with a minor under [victim] Judge TASHIMA. years, of fifteen this refers to the first Three additional counts intercourse^]” OPINION charging the defendant with sexual con- COWEN, Judge. Circuit duct with the same victim were dis- missed. Gonzalez-Aparicio appeals Isaías from imposed by

the sentence the District Court received, reports Arrest were not following guilty plea to one count of his only court documents indicate that from attempted reentry deportation. after Re- through August November 1998 error, viewing we will affirm. engaged defendant in intercourse

with the victim on at least four occa- I. sions. The defendant was released to immigration deported authorities and on Gonzalez-Aparicio was born in Mexico 23, above, February 2000. As noted 24, January According on to the defendant’s sentence was amended the (“PSR”) presentence investigation report day following deportation. his A Mari- September he dated moved to the copa County Adult Probation official in- family States with his when he was proceedings dicated revocation will be teenager. still a initiated on the defendant’s com- based In “Part B—Defendants’ Criminal His- mission of the instant offense. tory,” Gonzalez-Apar- stated that PSR (Id.) August icio was on arrested following Following deportation, and then convicted on the this first Gonza- charge: leznAparieio Conduct with a reentered the “Count 1—Sexual United States. (felony) again Minor Arizona Revised Statutes He was in March 2009. removed 13-1405, 1, 2009, § Maricopa County Superior April agents On Border Patrol (PSR Court, Phoenix, Arizona, Nogales, CR19992981.” observed Gonzalez- ¶ 21.) originally following He received in- Aparicio crawling through hole years probation, Although ternational fence. he at- sentence: border “02/02/2000—10 (credit year jail probation tempted away, apprehended as condition to run he was served).” (Id.) days agents that he for 167 time The sen- admitted was legal tence was then amended: Mexican citizen without authorization “02/24/2000— * Cowen, sitting by designation. The Honorable Robert E. Senior Unit- Circuit, Judge ed States Circuit for the Third Aparicio A then indicated on the record that country. grand federal in this

to be services, illegal with his counsel’s attempted him for he was satisfied jury indicted attorney any ques- under 8 able to answer deportation U.S.C. reentry after had, attorney might enhanced U.S.C. tions he have and the 1326 as 1326(b)(2). 20, 2009, August Gonza- On discussed the PSR and its recommendation pled guilty. lez-Aparicio accordingly with him. The District Court “presentence report ordered the offense level under the Calculating part expressly made a of the record” and Guidelines, Sentencing began the PSR adopted its factual assertions because “the offense level of 8 and ultimate- with base report accurately describes the offense total level of 22. ly up ended with a offense (ER25.) It the conduct.” then reviewed things, 16 levels Among other added calculation, stating, inter PSR’s Guideline previously “because the defendant was de- alia, accurately that it calculated a 16-level ported subsequent to a conviction for sexu- Gonzalez-Aparicio enhancement because minor, the al conduct with elements of previously deported following “a con- equivalent to sexual abuse of a which are viction for sexual conduct with a minor as statutory rape, minor either of and/or (ER26.) in paragraph outlined 21.” which is an enumerated crime of violence 2L1.2(b)(l)(A)(ii).” (Id. under U.S.S.G. “a The defense counsel asked for more ¶ 10.) The also found that PSR Gonzalez- neighborhood realistic sentence the history criminal Aparicio catego- fell under (ER30.) Among 18 to months.” other end, ry range III. In the the sentencing things, significant he stated that “the most months, was 51 to 63 and the Probation felony prior we are for involved a here Office recommended a sentence of 56 being charged basically of him for case months. (ER27.) short, statutory rape.” he ex- 29, plained Gonzalez-Aparicio that had a con- September The addendum dated (unlike 6-month-long relationship sensual when 2009 indicated that the defense he was 26 with a distant cousin of his government) objections made no (at common-law wife a time he was However, when PSR. the defense counsel did approaching who was separated) anticipation submit documentation attorney 15. While the defense acknowl- sentencing hearing, including an un- edged that the crime “sounds” horrible Spanish allegedly translated letter from dangerous, and his client was convinced Gonzalez-Aparicio’s prior the victim of changed that sentence was to time his criminal conduct. part family served in because the did not sentencing hearing At the conducted on want the State of Arizona to pursue (with November the assistance of (Id.) charges. The defense counsel added an interpreter), initially the District Court prosecute that the State often will such attorney Gonzalez-Aparicio’s asked wheth- in spite cases of the victim’s own wishes any legal why they er there was reason fact that emphasize and went on go sentencing. could not forward with actually “the so-called victim” wrote “a attorney indicated that there were you to le- touching asking letter consider none. He further noted that he had re- (ER28.) niency mercy.” his client “the presentence viewed with report including Gonzalez-Aparicio sec- After made a brief recommendation own, report” prosecutor tion and the addendum to the and statement of his con- sentencing Probation Office’s adequately believed his client under- curred (ER24.) Among things, the documents. Gonzalez- recommendation. other stood range mitigating low end of the due to the noted that she was unable prosecutor factors) reports imprisonment on the statu- of 51 months of police obtain “the (ER31.) However, she case.” tory rape by supervised be followed re- adversary’s characteriza- challenged her lease. alia, matter, stating, inter

tion of the case,” that it “wasn’t Romeo/Juliet II. 14,” at oldest 26” and “[s]he’s “[h]e’s Gonzalez-Aparicio contends “very difficult” for victims who that it is proce District Court committed reversible may family members and who are also by applying dural 16-level increase pur- pressured then be others into pursuant to the offense level to U.S.S.G. a letter ask- suing charges writing or even 2L1.2(b)(l)(A)(ii).1 (ER32) spe This Guideline leniency. ing cifically provides for such an increase if determination, In its final previously deported the defendant was fol took into Court consideration District lowing a conviction for a “crime of vio calculations, sen- Guideline The Sentencing lence.” Commission’s factors, mitigating and the factors tencing commentary states that: of a lesser sentence support offered Gonzalez-Apari- respect (especially any “Crime of violence” means of the circumstances). family federal, state, The District following cio’s under offenses Murder, the section specifically noted local law: manslaughter, Court or kid- Paragraph assault, described in napping, aggravated 13-1405 conviction forcible sex ag- does not constitute an (including PSR offenses where consent to the felony conviction “because the gravated given legally conduct is not or is not (Id.) year.” valid, at least sentence was not one such as where consent to the con- observed, alia, that been It inter involuntary, incompetent, “[t]here’s duct is or objection guideline coerced), calculations” statutory rape, no sexual abuse of “basically adopted minor, arson, extortion, what the robbery, and that it a ex- credit, probation department proposed.” has burglary tortionate extension of (ER33.) Declining grant departure “to a any of a or other offense dwelling, under paragraph federal, state, the fact that 21 is not based on or local law that has as an felony,” use, use, the District aggravated attempted an Court or element appropriately found “that it is expressly physical against threatened use of force violence, treated as a crime of sexual con- person of another. (Id.) duct with a minor under 15.” l(B)(iii). turn, § 2L1.2 cmt. n. U.S.S.G. that: District Court then observed “We currently § Ariz.Rev.Stat. states: summary para- of the

have the incident § mi- 13-1405. Sexual conduct with a graph appropriate 21. The court finds is nor; classification; definition. to treat that as a crime of to continue adju- person that it A. A commits sexual conduct appropriate violence and is by intentionally with a minor or know- purposes sentencing today dication for (ER33-ER34.) or ingly engaging of that conviction.” sexual intercourse any person oral sexual contact with who Ultimately, imposed the District Court eighteen years age. is under (although Guideline sentence one at the jurisdiction § had under 18 U.S.C. 3742 and 28 It is uncontested District Court subject jurisdiction pursuant to 18 § matter U.S.C. appellate U.S.C. 3231 and that we have ly they with a minor who is contest whether B. Sexual conduct have been satis years age specifically fifteen class fied. “When an offense is enu pursuant by felony punishable Application and is merated Notes as a violence,’ consistently conduct with a minor ‘crime of 13-705. Sexual we have years fifteen drawn the conclusion that the offense is a who is least felony. per class 6 Sexual conduct with se crime of violence under the Guide lines.” Rodriguez-Guz minor who is at least fifteen United States v. (9th Cir.2007) man, (cita felony if is a class is the person omitted). words, tions In other stepparent, adoptive we must parent, minor’s statutory determine “whether the defini parent, legal guardian, parent foster or comports tion used with the clergyman [Arizona] or or the minor’s teacher contemporary meaning priest person and the convicted is not statutory rape.” offense of Id. at 743. sentence, eligible suspension pro- bation, pardon or release from confine- inquiry requires This the courts to any except specifically ment on basis apply categorical approach or set test 31-233, by § A authorized subsection States, Taylor forth in v. United 495 U.S. imposed B until the sentence has been 110 S.Ct. 109 L.Ed.2d 607 “ served or commuted. (1990). ‘Under the approach, section, purposes C. For the of this “compare the elements of the “teacher” means a certificated teacher definition of the crime of conviction with a §in as defined 15-501 or other federal definition of the crime to determine person directly provides who academic proscribed by whether conduct the statute pupils any instruction to school dis than generic broader federal defini ’” trict, school, charter accommodation tion.” United States v. Valencia-Bar school, the Arizona state schools for the (9th Cir.2010) 1103, ragan, 608 F.3d 1107 private deaf and the blind or a school (quoting v. Mukasey, Cerezo 512 F.3d this state.2 — (9th 1163, 1166 Cir.2008)), denied, cert. U.S. -, 539, 131 S.Ct. 178 L.Ed.2d 396 Gonzalez-Aparicio The PSR found that (2010). egregious the least conduct “[E]ven was convicted of a “crime of violence” be- the statute covers [of conviction] must cause the elements the Arizona offense qualify.” Lopez-Solis, United States v. equivalent “are to sexual abuse of a minor (9th Cir.2006) 447 F.3d (citing ¶ (PSR 10.) statutory rape.” and/or Gonzales, Valencia v. 439 F.3d objection part Without on the of the (9th Cir.2006)). Furthermore, & n. 3 defense, writing whether in or at the sen- may only court look to the fact of convic itself, tencing hearing the District Court tion and the definition of the accepted prior this characterization of the See, prior e.g., offense. Valencia-Barra conviction as a “crime of violence” for sen- gan, 608 F.3d at 1107. tencing purposes. overarching

The principles of law that if pure categorical Even test appear satisfied, must be followed here government may be well is not ask established, although parties vigorous- turn eategori- the court to to the modified Following Gonzalez-Aparicio's "§ tute 1999 arrest 13-705 for 13-604.01” in subsec- sentence, Legislature and 2000 the Arizona statutory renumbering. tion B because of provision amended this to include the lan- changes appear None of these to be relevant guage clergyman "or the minor’s teacher or appeal. to the current C, priest,” or to add subsection and to substi- analysis the modified because of convic the statute approach. Where cal 13-1405(A) inclusive, generally refers to sex- Supreme Court section overly tion is “ beyond go “any person court to who is under sentencing ual conduct allows ‘the ” Rodriguez- years age” of conviction.’ and this has eighteen mere fact Court Guzman, Taylor, (quoting at 746 age of consent for generic held that the 2143). short, However, 110 S.Ct. 495 U.S. “statutory rape” purposes is 16. otherwise whether may the court consider on emphasizes provision goes that the “ ‘judicially no proper 13-1405(B) documentation in section “[s]exual state ” unequivocally facts’ demonstrate ticeable conduct with a minor who is under fifteen fall under the offense does felony” is a class Id. federal definition. generic “[cjourt PSR, turn, asserted that Shumate, States v. guilty he to Count I pleaded records show (9th Cir.2003), by 341 as amended charging indictment that in Novem- of an Cir.2003)). modified “[T]he F.3d 852 intercourse ‘engaged ber 1998 he sexual appropriate when categorical approach or oral sexual contact with minor [victim] into of conviction is divisible the statute years, of fifteen this refers ” crimes, fall under some of which several ¶ (PSR 21). intercourse[.]’ to the first category, and some of which the relevant Gonzalez-Aparicio, part, for his takes issue 546 F.3d at Estrada-Espinoza, not.” do government’s application of the with the Ashcroft, 395 F.3d (citing Carty v. approach. modified (9th Cir.2005)). approach all when the statute of apply does Review A. The Standard Of generic lacks an element ap of this Under the circumstances See, end, In the e.g., id. at 1159. crime. applicable identification of the peal, the quali a conviction “can conclude that especially important. of review is standard of conviction ‘only ... if the record fies review criminal sentences for generally We found all of jury “necessarily” shows discretion, will not over elements, abuse of and we the defendant generic turn a district court’s determi admitted all of the “necessarily” ” v. error plea.’ procedural in a States nation in the absence of elements 1141, See, F.3d 1149 Espinoza-Morales, e.g., 621 unreasonableness. or substantive Cir.2010) (9th 984, v. (quoting Sandoval-Lua Carty, v. 520 F.3d 993 United States (9th 1121, Gonzales, banc). (9th Cir.2008) (en 499 F.3d 1131 Cir. A district court’s omitted). 2007)) (footnote usually of the Guidelines is interpretation See, e.g., de novo. United States reviewed ge- that the Gonzalez-Aparicio contends (9th Cantrell, 1269, 433 F.3d 1279 Cir. “statutory rape” definition of neric federal 2006) (en banc). However, it is uncontest elements, has, proof its as one of (who repre Gonzalez-Aparicio ed that 4-year age there is at least a difference counsel) objected never to sented and the victim. perpetrator between the charac question called into otherwise 13-1405 lacks undisputed It that section conviction as prior Arizona terization his The requirement. any such difference He failed to do so a “crime of violence.” least, that, very at the argues government writing or even either at plain no er- committed the District Court Understandably, gov hearing itself. respect to whether ror apply argues that this Court must ernment includes such element. federal definition standard plain error acknowledges the well-established further government respect alleged sentenc- case, turn to of review with that, necessary it is any 756 See, (and e.g., panels ultimately raised below. Unit- two of the

ing errors not held that Charles, 927, 932-33 there were no errors of in light ed States (9th Cir.2009). Gonzalezr-Aparicio Evans-Martinez, prior precedent). asserts See do so should not because we 611 F.3d at 638-42 (determining Court sua pure sponte confronted with a purportedly are the district court committed question opposing party procedural by using of law and the mandatory mini prejudice suffer no result of the mum sentence for one would count as Guideline counts); (although to raise the issue below sentence for all failure Saavedra-Ve that he lazquez, further contends satisfies the 578 at (following he F.3d 1106-10 case). Ninth plain precedent error standard Circuit to conclude that California’s attempt definition of is not in prior sentencing indicated We have broader than attempt definition of at com cases that we are not limited to this stan mon law and that accordingly attempted appeal presents dard of review where the robbery violence”); is “crime of Echavar pure question of law and there is no ria-Escobar, (follow 270 F.3d at 1267-71 prejudice opposing party. See ing every other circuit court to have con Evans-Martinez, United States v. 611 sidered issue to conclude that suspended (9th 635, Cir.2010), 642 F.3d cert. de may sentence aggravated felony constitute —nied, -, 131 U.S. S.Ct. 178 for sentencing purposes). enhancement (2011); L.Ed.2d 788 United States v. contrast, a reasoned decision from the Dis Saavedra-Velazquez, 578 F.3d Court, trict parties made after the have — denied, Cir.2009), U.S. -, cert. presented respective their positions, would (2010); 176 L.Ed.2d S.Ct. deciding assist us in legal the difficult Echavarria-Escobar, United States v. question of whether there is an differ (9th Cir.2001). F.3d In oth object, ence element. The failure to how words, possess er the .discretion to ever, means that we have been denied such applying refrain from the default er valuable assistance. We further note that ror standard of review in certain circum relatively recently Court applied the stances. Burgum, United States v. plain error standard to the defendant’s (9th Cir.2011) (“To F.3d 812 n. 2 claim, asserted for appeal, the first time on extent we have discretion not apply that he was not a career offender because review, plain error we decline to exercise his conviction did not categorically (citing discretion this instance.” constitute controlled substance offense. Evans-Martinez, 642; F.3d Echa Charles, 581 F.3d 932-36. varria-Escobar, 1267-68).) appropriate We find that it is not to exer Pursuant to the modified categorical ap- light cise this discretion in of specific proach, consider, the this Court must also circumstances of the appeal. current among things, acceptable other documen- regarding tation Gonzalez-Aparicio’s prior As explain further detail in the go beyond Arizona conviction. must We section, next there was at the time of legal abstract discussion of confusion, sentencing today and still exists terms and criminal elements. According- tension, and possibly even conflict in our ly, this appeal implicates merely more than own case law as to whether the pure question a of law. federal “statutory rape” definition of in- 4-year cludes a matter, difference element. practical As a the defense’s own panels in the decisions cited above provides conduct before the District Court were not confronted with such situation even support applying further for the well-

757 plain the error of review. Under error standard plain standard established making objection review, whatso- appellant to no addition the must show that: character- respect to the PSR’s (1) error; (2) ever with error there the commit “crime as a prior of the conviction ization (3) the plain; ted was error affected sub violence,” essentially took the defense (4) rights; seriously error stantial at the “given” as a this characterization fairness, integrity, or public affected far as hearing went so and even See, judicial reputation proceedings. his client was on the record that to admit Olano, 725, v. e.g., United States 507 U.S. offense, that old at the 26 time 1770, 113 S.Ct. 123 L.Ed.2d 508 age of “girlfriend” was under the his (1993); Charles, 581 F.3d at 933. To be a case prior felony “involved and that obvious, the error must clear or plain, be charged basically statuto- being of him “ plain and an error ‘cannot be where (ER27.) counsel ry rape.” The defense authority is no controlling point there on sentence, based, for a specifically asked closely analogous the most and where alia, facts and cir- purported inter on ” conflicting leads to results.’ precedent conviction, prior that cumstances of Charles, 581 F.3d Unit 933-34(quoting than the sen- significantly higher was still Fuente, La ed States v. De 353 F.3d tencing range applied would have Cir.2003)). (9th error, 769 “Plain as we the absence of “crime of violence” term, understand is error that is so (i.e., he for a sentence enhancement asked clear-cut, obvious, competent so district “neighborhood” of 18 to months able judge should be to avoid it without (ER32), though range applicable even objection.” States v. benefit United have the 16-level increase would without Turman, Cir. months). only 2 apparently been to 8 1997) (citing Frady, United States may such admissions and conduct While 152, 163, U.S. S.Ct. L.Ed.2d categorical satisfy insufficient be (1982)). When of the law is the state themselves, they modified tests unclear at the time trial and is then indicate that we should de- nevertheless by subsequent authority, clarified the dis apply our cline to exercise discretion trict court’s error is still not considered further de novo standard review. We See, Therefore, e.g., plain id. error plain. that, Gonzalez-Aparicio, in contrast note “normally means at the time Saavedra-Velazquez did the defendant alleged mis the district made the unsuccessfully argue before the district exception However is an take.” Id. there court, admittedly grounds on different general to this principle: “‘[W]here on appeal, than he raised at the time of trial was settled and not, ‘crime categorically, “was contrary to at the time of clearly the law the purposes of violence’ for of U.S.S.G. enough' it is that an error be appeal[,] upward ad- § 2L1.2 and that 16-level time “plain” appellate at the consider justment applied.” should be ” that, if de- further add at 1105. We ation.’ Id. Johnson objection, properly States, 461, 468, had raised this fense 520 U.S. 117 S.Ct. may obtained government have then (1997)). 137 L.Ed.2d 718 from further documentation and submitted proceeding that could clear-

the state Categorical Approach B. The Pure categori- in any considered modified ly be assuming arguendo Even government analysis. Accordingly, cal “statutory rape” crime of includes prejudice generic here. has suffered (or 4-year age requirement difference We returned to the definition of “statu all), tory rape” in any age requirement Rodriguez- we United States v. difference Guzman, (9th Cir.2007). F.3d 738 The regarding determine that this challenged defendant the application of the element not be “so clear-cut” and would 16-level enhancement based on his competent “so that “a district obvious” 261(c) conviction under section of the Cali judge should able to avoid it without be fornia Penal Code. provi Id. 740. This Turman, objection.” benefit sion in part “[a]ny states relevant (and at 1170. There is has been since person engages who act of unlawful before the District Court sentenced Gonza- sexual intercourse with a minor who is confusion, tension, leznAparicio) some years more than three younger than the in our own possibly even conflict case law perpetrator guilty is of either a misde as to whether the crime includes felony,” meanor or a and California law particular element. then defines a “person minor as a begin ruling with our We age years.” of 18 Id. at 741. Gomez-Mendez, States v. 486 F.3d 599 Gomez-Mendez, went “[w]e on to define (9th Cir.2007). case, In this the defendant statutory rape as ‘ordinarily, contemporar argued that the district court improperly ily, and commonly understood to mean the applied the 16-level enhancement based on unlawful sexual intercourse with a minor 261.5(d) a prior conviction under section of under age specified by of consent ” Code, stated, the California Penal which state statute.’ (quoting Id. Go alia, “[a]ny inter person years of mez-Mendez, 603). 486 F.3d at But the age or engages older who in an act of panel Gomez-Mendez purportedly “did not unlawful sexual intercourse with a minor dispositive question answer the presented years who age guilty is under 16 of here: what ordinary, is the contemporary, felony.” either misdemeanor or a Id. at and common meaning of the term ‘minor’ 600-03. Affirming en- in the context of a statutory rape law hancement, stated, alia, inter relied on for a sentencing enhancement?” ‘statutory term rape’ ordinarily, “[t]he (footnote omitted). Id. Rodriguez- contemporarily, commonly understood panel majority, Guzman based on an ex to mean the unlawful sexual intercourse Code, amination of the Model Penal feder with a minor under of consent al criminal (specifically 18 U.S.C. specified by state statute.” Id. at 603 2243(a) (“Sexual abuse of a minor or (footnote omitted). In support of this defi- ward”)), and approach of the over nition, we specifically quoted the defini- whelming majority of the states to the “statutory tions of rape” Black’s Law (as of consent issue Judge addressed in Dictionary, id. at 603 n. 7 (quoting Black’s Thomas’s concurring opinion in the subse (8th ed.2004)), Dictionary Law as well quently panel vacated ruling Estrada- annotation, as in an ALR id. Su- Gonzales, Espinoza v. 498 F.3d 933 Kole, Annotation, san M. Statute Protect- Cir.2007)), concluded that “the term ‘mi ing Minors in a Specified Age Range nor’ in the context of a statutory rape law from Rape or Other Activity Applica- Sexual as person means a under sixteen ble to Minor Within (footnote omitted). Protected age.” 506 F.3d at 745 Defendant Age Group, 856, § 18 A.L.R. 5th specifically 2[a] We observe that both the Mod (1994)). It must be noted that none of 2243(a), el Penal Code and 18 U.S.C. these any age definitions contain quoted differ- in Rodriguez-Guzman, require requirement. ence Id. the victim younger be than 16 and 4-year congressional “that least a differ- confirm definition that there be at ordinary, comports the vic- with ‘the perpetrator contempo between the and ence case, rary, meaning further and In this common the words’ tim. Id. Court ... not the term.” at 1152-53 prior ruling “is Id. Unit explained Baron-Medina, 1144, because ed States v. in conflict with our decision here” F.3d (9th Cir.1999)). in In the process, addressed Go- 1146 we statutory provision turned, alia, in- only “statutory rape” criminalizes sexual inter to state mez-Mendez age of with a minor under the the Model Penal “statu provisions, tercourse Code’s definition, at tory rape” 16. Id. 745 n. 6. and case law (and frequently distinguished between sex 2008, In the en banc Court Estrada- activity younger ual with children and sex (9th v. Espinoza Mukasey, F.3d adolescents). activity with ual older Id. at (en Cir.2008) banc), specifically considered In explaining why 1153-55. there was no a con following question: “[WJhether aggravated felony need for the to provision any of four California statu viction under express statutory include an to reference tory rape provisions Penal —California 2243, specifically § we observed that “sex 261.5(c), 286(b)(1), 288a(b)(l), §§ Code abuse of a offenses ual minor” under fed 289(h) aggravated felony —constitutes would, and state eral law “define what minor,’ mean ‘sexual abuse of a within the common parlance, more be referred to as 1101(a)(43).”3 § of 8 Id. at ing U.S.C. statutory rape.” at 1156. Id. (in opinion This 1150. Court unanimous Thomas) by Judge written answered narrow “statutory Even outside of the question negative because each Cali context, rape” subsequent panel rulings statutory provision fornia defines conduct proceeded distinguish have to this en banc than the federal generic broader opinion. process, recog have definition of “sexual abuse of a minor.” nized that are now two generic there fed Id. 1150-60. eral definitions of “sexual a mi abuse of (1) in this nor” Circuit: the so-called began by analysis We our “statutory rape only” crimes an definition observing “[f]ortunately” that we were nounced the en banc Court in Estrada- specific confronted with an absence of con- and Espinoza covering understood of gressional guidance respect with older involving fenses both adolescents applicable “because elements crime (2) children; younger preex and and Congress has enumerated the elements isting dealing definition offense abuse minor’ at sexual crimes of ‘sexual of a children, § against younger which are con U.S.C. 2243.” Id. 1152. “Thus per offense of ‘sexual abuse of a minor’ sidered be se abusive. See (1) Farmer, requires a mens rea v. four elements: States 627 F.3d 417-22 (2) (3) (9th (Mar. act; Cir.2010), filed, knowingly; pet. level sexual cert. 2011) (No. 10-9620); ages Valencia-Barragan, with a minor between (4) 16; 1106-08; an difference of at least 608 F.3d United States v. (9th Castro, four and the 607 F.3d 567-70 Cir. between defendant 2010); Holder, engaged minor.” Id. then in a rather We Rivera-Cuartas (if Cir.2010); lengthy unnecessary) Pelayo- dis- purportedly 701-02 Holder, cussion current criminal law order Garcia 1101(a)(43)(A) Estrada-Espinoza “de- was found removable as F.3d at 1151. 8 U.S.C. 'murder, aggravated 'aggravated felony' rape, felon 8 U.S.C. fines as " 1227(a)(2)(A)(iii). Estrada-Espinoza, abuse a minor.' Id. at 1151. sexual (9th Cir.2009); States v. Castro, Medina- In United States v. 607 F.3d 566 (9th Villa, (9th Cir.2010), Cir.2009), the challenged defendant — denied, 16-level U.S. -, enhancement cert. because S.Ct. prior of his (2010). conviction under section 176 L.Ed.2d 138 288(c)(1) Code, of the California Penal example, For determined in we Rivera- “which criminalizes or lewd lascivious acts Holder, (9th Cuartas v. 605 F.3d 699 Cir. on a child of 14 years by or 15 a person at 2010), that the statutory provision Arizona years least ten child,” older than the id. at satisfy issue here does not either of Applying 567. generic the two federal def- definitions, these “sexual abuse of a minor” minor,” initions of “sexual of a abuse id. at immigration id. In proceed 567-70, 288(c)(1) we held that “section ing, we held that “section 13-1405 does not broader than generic offense of sexual meet for statutory rape definition abuse of a minor and it therefore is crimes set forth in Estrada-Espinoza categorically a crime of violence.” Id. (1) two reasons: age lacks difference at 567-68. In this amended opinion, we (2) requirement; and is broader than the explained also that “[w]e do not address generic 288(c)(1) respect offense with whether section constitutes the generic the minor because the offense of applies ‘statutory statute rape’ persons violence,’ therefore eighteen years under constitutes ‘crime of age.” Id. see l(B)(iii), U.S.S.G. hand, On the 2L1.2 cmt. n. other “a be- crime that is not a cause parties have not raised that is- rape crime under Estrada-Espi sue.” Id. at 570 n. 2. may noza still meet generic the federal (1) offense of ‘sexual abuse a minor’ if Likewise, in United States v. Valencia- the conduct prohibited by criminal Barragan, Cir.), 608 F.3d 1103 cert. — (2) sexual, statute is the statute protects denied, U.S. -, 131 S.Ct. minor, (3) requires statute (2010), abuse.” L.Ed.2d 396 the defendant chal Medinar-Villa, (citing 513). Id. lenged 567 F.3d at a sentencing enhancement on the The abuse element basis of is met if conviction statute under section “ 9A.44.076(1) prohibits Washington behavior ‘physical that causes Revised Code, id. at provision psychological provides This light harm person guilty “[a] of rape of a the victim in child question.’” Id. in the second same). degree when the person has Applying definition, this other sexual intercourse another who is at held that section 13-1405 lacks the critical least years twelve old but less than four However, “abuse” element. Id. the Riv teen old and not married to the panel only era-Cuartas considered the perpetrator and the perpetrator is at least “aggravated statute, felony” which—unlike thirty-six months older than the victim.” commentary Guideline at issue here— Id. We concluded that this conviction fell does not include express “statutory under the “abuse” definition of “sexual rape” language. abuse of a minor.” Id. at 1106-08. Al date, To we have yet consider wheth- though the district court ruled that er—and how spinoza Estrada-E should be prior actually qualified as “stat applied in defining crime of utory rape,” we in our stated amended “statutory rape” U.S.S.G. ruling that, “[b]ecause we conclude that 2L1.2(b)(l)(A)(ii). fact, this Court ac- Valencia-Barragan’s conviction under sec tually amended two rulings 9A.44.076(1) recent to elimi- tion criminalizes conduct that nate such “statutory rape” discussions. satisfies the first federal generic definition ”). a ‘crime of violence.’ ‘statutory rape’ as minor,’ we do of a of ‘sexual abuse also never spinoza opinion The Estrada-E also satis- his conviction whether address prior to our “statu cited federal definition discussed even the second fies ” and in ‘statutory rape.’ tory rape” decisions Gomez-Mendez constitutes it or whether We further add Rodriguez-Guzman. at 1107. Id. of a that, limited “sexual abuse even the although he never Gonzalez-Aparicio, context, ruling banc and the minor” the en below, this Court now asks raised issue been the line of case have subsequent conviction prior his whether to determine special In a concur of criticism. target ‘statu- 13-1405 “constitutes section Farmer, 627 F.3d ” rence United States whether specifically and tory rape’ (Mar. (9th Cir.2010), filed, pet. cert. for “statutory definition of generic federal 2011) (No. 10-9620), Bybee, Judge ele- 4-year age difference rape” includes Noonan, seri by Judge expressed joined is a acknowledge that this ment. Id. We about, things, the among other ous doubts by our issue, complicated further difficult the same of definitions for existence two instance, our For prior case own law.. J., offense, (Bybee, specially at 424-26 id. and in Gomez-Mendez prior decisions concurring). to offer appear did Rodriguez-Guzman end, of “statuto- are confronted here In the applicable definition generally any age arguably merit en problems in turn lacks which serious ry rape,” However, that, very respec- at the consideration banc difference element. any least, only after the evidently raised be resolved never should tive defendants (and objection be- appeal issue on defendant raises properly difference ac- and the district court in Gomez-Mendez fore the district statutory provision opportunity thereby to be has a real perpetrator tually requires ruling to be and the victim an informed and reasoned years make least ultimate resolution. provision 16 while that could assist younger than least, a 3- it cannot be said very contains At the Rodriguez-Guzman issue under the requirement). Never- here was so obvious any error year age difference time of sentenc- conclude that law at the theless, governing unable we are still case (or now) dis- any plain competent that “a ing District Court committed even it with- be able to avoid judge trict here. should Turman, 122 objection.” out benefit of actual- spinoza Estrada-E particular, In omitted). (citation at 1170 F.3d abuse of phrase “sexual ly defined immigration in the as is used minor” Categorical Approach C. The Modified contrast, In felony” context. “aggravated 13-1405(A) prohibits section here While commentary at issue the Guideline “any person who is sexual conduct with of a abuse both “sexual expressly lists it well age,” eighteen rape” as under “statutory as minor” as well of consent generic age established that courts general, “crimes of violence.” See, is 16. “statutory rape” purposes for interpretation to avoid an attempt should at 743- 506 F.3d Rodriguez-Guzman, e.g., e.g., Cf., language superfluous. rendering to the modified turns government 46. The Medina-Villa, 515(stating the District to defend categorical approach abuse that, to define ‘sexual “if we were Gonzalez-Apar to Court’s characterization limited 21:1.2 as a minor’ U.S.S.G. “statutory rape” icio’s need for eliminate we would a “crime violence” and therefore example independent separate (9th Cir.2000); We determine States v. purposes. Potter, er- the District committed no Court Cir. . 1990)) application respect ror with approach. categorical modified Nevertheless, prepared in the PSR this Initially, it that the modified appears provide proceeding did more than a mere govern test is here because the applicable narrative. instead evidently factual It to seeking supply ment is not an otherwise from quoted by state court documentation See, e.g., absent element. Rivera-Cuar records show he stating “[c]ourt tas, 702; spinoza, 605 Estrada-E F.3d 1 pleaded guilty to of an Count indictment turn, was, at the 546 F.3d at 1159. that in charging November 1998 he ‘en least, very at the time of sen not obvious gaged sexual intercourse or oral sexual tencing state provision contact with a minor [victim] indivisible, especially given express was its years, of fifteen refers to the first 13-1405(B) of classification in section sexu ” (PSR 21.) ¶ It intercourse^]’ bears re al minor a conduct with a under 15 as class that, if peating the defense had raised See, e.g., 2 felony. spinoza, Estrada-E 546 objection, government sort of some 1159-60. presented could then have the sentenc certain ing proceeding There are restrictions on the actual documentation the kinds of that a court from the state documentation court. Under these circum stances, may categori See, plain consider under the modified there was no error. (“A See, e.g., cal approach. Shepard e.g., Kelly, United 422 presen F.3d at 895-96 States, 13, 26, (“PSR”) report U.S. S.Ct. tence is insufficient to es (2005); L.Ed.2d 205 v. Kel if States tablish elements of crime ‘all it (9th Cir.2005). ly, 422 F.3d 895-96 recite does is the facts the crime as instance, For alleged charging papers’ statements or admissions without indicating counsel at sentencing defendant’s whether the information came See, hearing judicially are not ‘from a previously noticeable. source that we have e.g., Rodriguez-Guzman, acceptable, signed plea 506 F.3d 747 deemed as a such Likewise, n. 9. may agreement, plea court a transcript hear ” turn description to the for a ing, judgment PSR narrative or of conviction.’ rona-Sanchez, 1211)); facts of underlying convic F.3d at Co See, Corona-Sanchez, (“We e.g., tion. United States v. Pimentel- 291 F.3d at 1212 Flores, (9th Cir.2003) 339 F.3d need not decide in whether this case infor where, alia, (finding plain error presentence inter dis mation contained in a report solely identified, trict court descrip relied on factual from acceptable source can tion government recited PSR and failed TayloPs constitute evidence under modi documentation); adequate submit approach”). Unit fied Corona-Sanchez, ed States v. 291 F.3d (9th Cir.2002) banc) (“In (en III.

stead, held presentence we have that a report reciting reasons, the facts of the crime is the foregoing For Gonzalez- insufficient that the Aparicio satisfy applicable evidence establish fails to pled guilty defendant of a respect elements error standard of review with crime when the statute of District Court’s determination that he definition.”) (cit broader than the of a previously convicted “crime of Franklin, violence,” ing namely “statutory rape,” United States 235 F.3d pursu- (9th Cir.2008) 2L1.2(b)(l)(A)(ii).4 520 F.3d Carty, § We v. ant to U.S.S.G. (en banc). It did so. not do Defendant- District Court conclude further (“Gonzalez”) Gonzalez-Aparicio or appellant discretion abuse its did not otherwise illegal to one proee guilty entry count pled was either impose a sentence 1326(b)(2). substantively unrea under 8 U.S.C. sentenc durally erroneous See, Carty, at 993. e.g., applied 16-point “crime vio ing sonable. enhancement, Gonzalez-Aparicio’s assertions Contrary to lence” U.S.S.G. 2L1.2(b)(l)(A)(ii), provided the District appeal, on Court that raised Gonzalez’s determination, explanation for its thorough level 6 to 22.1 At Crimi total offense from ar responded III, to the various appropriately History this raised Category nal his defense, give the did not guments by made from corresponding range Guidelines Guidelines, the and rea weight to undue to 51-63 months. The months district Gonzalez-Apari into account sonably took a of imposed sentence 51 months. miti as well as several cio’s record majority acknowledges, the As correct gating factors. that on ness of sentence turns the follow generic does definition ing issue: of will affirm the sentence We therefore statutory rape age contain an difference the District Court. entered Maj. Op. element? See at 756. AFFIRMED. BY APPELLANT THE MOTION II. OF THE RECORD FOR CORRECTION IS DENIED. majority error plain The invokes review answering key question, to avoid even TASHIMA, dissenting: Judge, Circuit question pure question though is of majority a new Today the announces generic law. If the definition an includes selecting of a stan- startling method element, age difference then Gonzalez’s review, panel, one which the dard of statutory conviction constitute state cannot of option, its selects which standard sole because, concedes, rape, majority as the of this standard apply. review to Because 754, Maj. Op. the Arizona statute see all, respectfully I review is no standard convicted, he under which was Ariz.Rev. our majority applied dissent. If the had 13-1405, not include an Stat. does review, long-established of standard element. v. difference Rivera-Cuartas to and remand required would be reverse (9th Cir.2010) ( Holder, F.3d 605 702 resentencing. “ ‘[Wjhen missing conviction is crime of altogeth generic crime an element I. er,’ approach categorical the modified is ‘can in all because the court never sentencing inapposite case. As This is jury actually required court was first find that sentencings, the district advisory generic all required calculate find elements the correct crime.”) Navarro-Lopez v. guidelines range. See Gall Gon (9th Cir.2007)). States, zales, 38, 49, F.3d 1073 552 U.S. 128 S.Ct. United (2007); analyze we must the statute un- States Because L.Ed.2d govern- 16-point was based an accordingly The enhancement on 4. We need not reach the theory the statute ment alternative state for sexual conduct Arizona conviction of- constitutes "forcible sexual conviction under Ariz.Rev.Stat. 13-1405. with a minor commentary. fense[ under Guideline ]” categorical Taylot2 analysis, categorical approach apply der the does not at all not matter. underlying facts do when the statute an lacks Maj. element of the crime.” Op. majority’s application Again, at 755. issue is ge- whether our contrary to well-established review is neric rape contains dif- law, if pure question rule that a even ference If the yes, element. answer is unpreserved, de novo absent is reviewed then qualify Gonzalez’s conviction does not prejudice opposing party. to the See as a matter of law Evans-Martinez, United States v. approach, and he must be resentenced ac- Cir.2010); United States cording advisory range correct Saavedra-Velazquez, (9th Cir.2009) 2-8 months. (holding “Further documentation of “whether ‘attempt’ proceeding”

California’s definition broad state court could not af- definition, er than the common such fect the analysis. Gonzalez’s failure robbery attempted not a ‘crime of object prejudice government. did not ” purely legal question violence’ is a to however, perplexingly, Most majori- plain which error review does not apply); ty justifies also plain its of application 883, Ashcroft, Huerta-Guevara v. 321 F.3d error review as an exercise of purport- its (9th Cir.2003) (declining apply plain to ed “discretion” select the appropriate to error purely legal question review to the of Maj. standard of Op. review. at 756. whether a conviction constitutes an “ag The idea that we have discretion to choose gravated felony” categorical under the ap between standards review is anti- proach); United States Echavarria-Es cobar, thetical 1265, (9th very concept of a standard 270 F.3d Cir. 2001) If (declining apply plain pick to review. we can error review whatever stan- “argue[d] us, where the defendant for the first dard suits free from the direction of appeal time on imposed sentence binding principles, then there is no stan- for his Nevada theft offense [could state dard at all. apply Our cases that aggravated not] constitute an felony for “pure question exception of law” to plain purposes enhancing his [ ] sen error engage any review do not such ....”).3 tence Rather, discretionary selection. the cases limit asking themselves to whether

The majority plain contends that error relevant purely legal issue is and whether applies review because Gonzalez’s failure the opposing party prejudice. suffers no object government to prejudice caused the If questions the answer to yes, both is our by depriving opportunity it of the to sub- cases invariably applied de have novo re- mit “further documentation of the state Evans-Martinez, view. See proceeding that could clearly be 642; Saavedra-Velazquez, considered in modified 578 F.3d at 1106; Huerta-Guevara, analysis.” Maj. But, atOp. 886; 764. as the 321 F.3d at majority Echavarria-Escobar, recognizes, itself “the modified 270 F.3d at 1267-68. States, Taylor v. United 495 U.S. trolled substance offense.” But Charles never (1990). S.Ct. 109 L.Ed.2d 607 question "pure considered excep- of law” review, plain apparently tion to because Charles, In United States v. the defendant did not raise it. See id. at 932- (9th Cir.2009), upon majority which the 33. Charles does not therefore conflict with relies, plain applied the court error review to authority. the above legal question of whether the defendant's state “categorically conviction was a con- legal question on which purely novo recognizing these cases than

Rather up appeal turns. majority comes this binding, grants under which it rule newly-minted III. standard of over which

itself discretion by seizing It apply. to does review law, Turning question to that al slender reed of one-sentence upon the though squarely have decided never analysis of the that contains no footnote generic statutory rape includes an whether to exception of law” “pure question element, we have come age difference Bur United States v. error review. See spinoza Mukasey, close. Estrada-E Cir.2011) (9th 812 n. gum, 633 F.3d Cir.2008) (en banc), F.3d 1147 held (“To not to extent we have discretion minor” an requires that “sexual abuse of a review, we decline apply plain error element. Id. at 1152 age difference instance.”). in this exercise that discretion (“[T]he generic of ‘sexual abuse of offense language, from its plainly As clear (1) requires minor’ four elements: appel state that actually does not footnote (2) knowingly; rea a sexual mens level be late discretion choose courts have (3) act; ages awith minor between the And foot of review. tween standards (4) 16; 12 and an difference certainly not overrule our earlier does note four between the defendant least discretion granting courts decisions minor.”). The court relied on than de novo review apply anything other “statutory rape,” sources that defined id. unpreserved question purely where it determined of because op to legal prejudice is no the and there of minor” in titled “sexual abuse a fenses this majority The overrides posing party. and federal criminal codes “define state fiat, precedent simple line of clear would, in parlance, what more common be not to exer “finding] appropriate that it is statutory Id. at rape.” referred to as specific light this discretion cise words, Estradar-ESpino In other appeal.” the circumstances of current that of a holding za’s “sexual abuse minor” Maj. Op. at 756. age element contains an difference generic on the that statu newly-minted giv- rule based conclusion announcing its age elem tory rape which contains an difference ing discretionary option the of itself subsequently majority emphasized the ent.4 We apply, to standard review by declaring Estradar-Espinoza point case that ignores long-established our simply statutory to rape law an “was define pure questions law are intended separate generic only,” and that a to Because laws exception review. a dictates, de of “sexual abuse of minor” our I would review definition case so Requirements,” statutory Reporting The generic Laws and conclusion about This Group, prepared Department comports prevailing Lewin rape with the definition Osborne, (Dec. 15, 2004), Health Human Services United States and of the crime. See Cir.2009) (“Many http://www.lewin.com/conten1/publications/ ("In states, laws, statutory 3068.pdf legality engag- rape which criminal is, ing example, a in sexual intercourse with minors on a belief that best-known rest circumstances, on youth age pre- least in based and some combination of difference conduct.”) age parties.”); difference in between two vents an effective consent to sexual Children, Adults, added); Phillips, Sex § Charles A. and (emphasis Model Penal Code 213.3 Reason, (2001) Law: In Search (defining "Corruption of and the Criminal Minors (“An (1997) Legis. J. element require Seton Hall that the "actor is Seduction” to age an difference per- present most states is years older than the other [four] least son”); parties.”). Rape: "Statutory A Guide State between the to require 515(“/7//we to applies to laws that abuse. United were define ‘sexual abuse Medina-Villa, States v. 515 of a minor’ in as U.S.S.G. 2L1.2 limited (9th Cir.2009); also States definition], see to we Estrada-Espinoza [the Valencia-Barragan, 608 F.3d 1107 n. separate would eliminate the need for the (9th Cir.2010) (“Although Estrada-Espi independent example ‘statutory ‘sexual abuse [purported to] defin[e] noza ”) rape’ (emphasis ‘crime of violence.’ generally, subsequently of a minor’ we added). words, In other context of Estrada-Espinoza defini clarified which, in contrast U.S.S.G. to 2L1.2— ‘encompassed statutory rape tion crimes immigration provision that Estrada- (citation ”) omitted). only.’ Espinoza interprets, enumerates Although issue, to refuses decide terms “sexual of a abuse minor” “stat majority suggests generic utory rape” separately generic two —the statutory rape might crime of not contain definitions of “sexual abuse of minor” requirement, difference Estradar correspond separate to terms. The Medi Espinoza notwithstanding, because the corresponds nar-Villa definition to “sexual Sentencing Guidelines enumerate “sexual Estrada-ESpi abuse of minor” and the “statutory rape” abuse of minor” and corresponds noza definition “statutory 760; separately. Maj. Op. at see Medina- rape.” overlap.5 There is no 515(“When Villa, interpreting 567 F.3d at majority implies also that United Guidelines, give we must meaning to Gomez-Mendez, States v. 486 F.3d 599 all superflu its words and render none (9th Cir.2007), predates which Estrada- ous.”). The implication is that because Espinoza, suggests Estrada-Espinoza defines “sexual abuse rape does not an age contain difference of a minor” to “statutory rape,” mean Maj. Op. element. See at 757-58. But “statutory should define rape” mean something Gomez-Mendez did address the “statutory rape” other than avoid difference issue. The case concerned a rendering superfluous. the term anyone state reasoning Moreover, prohibiting That is law 21 or backwards. older having from recognizes any- Medinar-Villa with that the exis sexual intercourse tence the one Although of second definition of “sexual under 16. the de- abuse of covering statutory rape laws that re clared that “ordinarily, is minor” — quire abuse-avoids the rendering contemporarily, commonly term understood “statutory rape” redundant. See 567 the F.3d mean unlawful sexual intercourse government argues law, 5. briefly The that even if nor’s consent is invalid under state then § statutory rape, why 13-1405 does not constitute commentary statutory rape does the list Moreover, it separately? is still a of "crime violence” because it Sentencing when the offense,” the of parenthetical meets definition "forcible language sex Commission added the commentary defining which the Guidelines lists as a "forcible sex offenses” to include consent, separate qualifying involving legally offense. U.S.S.G. 2L1.2 crimes it invalid did l(B)(iii) (2009) (" cmt. n. 'Crime of violence' so to overrule that had cases excluded from following means of generic rapes mentally the ... forcible sex the definition im- (including paired persons rapes offenses where to the consent con- or intoxicated ac- valid, given not legally complished by duct is not is or such coercive non-violent threats as (e.g., employer's where consent to the conduct is involun- threat "to fire a subor- tary, coerced), dinate”). incompetent, statutory rape, See Notice of submission Con- ”). gress sentencing guide- sexual abuse of a minor.... But this read- to the of amendments 1, 2008, ing “statutory rape” Fed.Reg. would render the term lines effective November 73 superfluous: 9, 2008). statutory rape parentheti- if (May crimes are 26935 The simply sex language target statutory rape. "forcible offenses” because the cal mi- does not

767 PSR, on reliance the majority’s consent,” it The the under minor awith In precedent. clear contravenes again, whether to consider have clearly not did Corona-Sanchez, held we v. States dif included an definition generic had defendant stating that a PSR the state element, because ference charg- contained in to facts guilty pleaded Gomez- See requirement. satisfied to establish not suffice did ing papers In Estrada-Es Mendez, at 603. F.3d for the defendant’s elements hand, age differ other on the pinoza, ap- categorical of the modified purposes F.3d dispositive. element ence Cir.2002) (9th 1201, 1212 F.3d proach. banc) (“Corona-Sanchez’s (en presentence § 13- spinoza, sum, Estrada-E under all it because evidence report insufficient generic definition not meet 1405 does as the crimes the facts of recite does not con- it because does statutory rape That charging papers. in the alleged This requirement. age difference tain an charged’ does that he qualifies Corona-Sanchez, states Gonzalez’s holds that the PSR unlike be rec overinclusiveness from “court statute’s comes despite the that its information involving perplexing. a crime this pled guilty to I find distinction cause he ords.” (without hold only suggests factual But the year-old victim. our case While might support application from ing) conclusion comes PSR support for (“PSR”), if it approach Report Investigation of the modified Presentence its information records it draws “Court makes clear as follows: which reads source,” “identified, acceptable Count guilty to from pleaded [Gonzalez] show a tran plea agreement, signed “a that in Novem such as charging of an indictment hearing, judgment plea of the script in sexual intercourse ‘engaged he ber Corona-Sanchez, conviction,” a minor with [victim] contact or oral sexual rec to “court cryptic reference years....’” fifteen under the obviously does PSR ords” Gonzalez’s documen no other submitted government pre- cannot discern One fit that bill. of the conviction. tation of the cise source information. The dis- plain rely-

trict court committed (“The

ing exclusively. on the PSR Id. idea categorical approach is to modified unequivocally

determine if the record es-

tablishes that the defendant was convicted crime....”) (em-

of the generieally defined Pimentel-Flores,

phasis added); (“We can understand the frustration judges

of district who a defen- sentence objection

dant on a record to which no was only

made have to later revisit Relying solely

matter.... on the factual PSR, however,

description in the

error.”).

V. above,

For all of the reasons discussed I

respectfully dissent. LLC,

PRUDENTIAL LOCATIONS liability company,

Hawaii limited

Plaintiff-Appellant,

U.S. DEPARTMENT OF HOUSING DEVELOPMENT,

AND URBAN

Defendant-Appellee.

No. 09-16995.

United States Appeals, Court of

Ninth Circuit.

Argued and Submitted Feb.

Filed June notes also ‘P/G resentencing be remanded should case situation, it does because remedy the of 2-8 range correct Guidelines under the this informa- the source not indicate months. grounds by tion.”), other on superseded (2002). 2L1.2, n. 4 Simi- cmt. U.S.S.G. PimenteUFlores, States larly, United IV. court committed a district held that unnecessary to reach PSR to solely it is on the by relying Although I also I analysis, note that conviction consti- my that the defendant’s issue under find modi- application under the majority’s a “crime of violence” disagree with tuted The approach. categorical approach. fied modified Cir.2003). (9th it defines is over-inclusive: Arizona statute while under persons minors as “a presen recognizes majority The persons minors as defines generic crime of the crime the facts reciting report tence § 13- Ariz.Rev.Stat. Compare under establish that evidence is insufficient Rodriguez- United States elements pled guilty defendant Cir.2007) Guzman, F.3d Maj. of a crime....” definition of a (“[T]he in the context Corona-Sanchez, ‘minor’ term at 762 Op. person rape law means 1212). affirms it nonetheless But majority here, of age.”). sixteen PSR sentence because Gonzalez’s

Case Details

Case Name: United States v. Gonzalez-Aparicio

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 8, 2011

Citation: 648 F.3d 749

Docket Number: 09-10447

Court Abbreviation: 9th Cir.