U.S. v. Lopez-Solis

• Decision Date: 19 May 2006
• Docket Number: No. 03-10059.,03-10059.
• Citation: 447 F.3d 1201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo LOPEZ-SOLIS, aka Alfredo Lopez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.3d 1201

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo LOPEZ-SOLIS, aka Alfredo Lopez, Defendant-Appellant.

No. 03-10059.

United States Court of Appeals, Ninth Circuit.

Argued March 11, 2004.

Submitted May 12, 2006.

Filed May 19, 2006.

COPYRIGHT MATERIAL OMITTED

Alfred Islas, Tucson, AZ, for the defendant-appellant.

Paul K. Charlton, United States Attorney, Christina Cabanillas, Deputy Chief, Appellate Section, and Jeffrey H. Jacobson, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-02-01265-RCC.

Before THOMAS G. NELSON, SUSAN P. GRABER, and WILLIAM A. FLETCHER, Circuit Judges.

T.G. NELSON, Circuit Judge.

Appellant Alfredo Lopez-Solis, a citizen of Mexico, was indicted for entering the United States illegally in violation of 8 U.S.C. § 1326, with a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2). The sentencing court subjected him to a sixteen-level sentencing enhancement under § 2L1.2 of the United States Sentencing Guidelines ("USSG") based on his prior conviction for statutory rape, a conviction the court deemed "sexual abuse of a minor," a "crime of violence" under the guideline.¹ On appeal, Lopez-Solis argues that his conviction for statutory rape was not for "sexual abuse of a minor," and therefore not a "crime of violence." For the reasons discussed below, we agree. Accordingly, we vacate Lopez-Solis's sentence and remand to the district court for resentencing.

BACKGROUND

In August 2002, a grand jury indicted Lopez-Solis for illegal entry into the United States after deportation, in violation of 8 U.S.C. § 1326, with an enhancement pursuant to 8 U.S.C. § 1326(b)(2) because of his 2001 conviction for statutory rape under title 39, chapter 13, section 506 of the Tennessee Code ("section 39-13-506").² Section 39-13-506 criminalizes sexual penetration of a minor under 18 years of age by an individual who is at least four years older.³

Lopez-Solis admitted to having entered the United States illegally but reserved his right to appeal the statutory enhancement as well as any sentence imposed. The presentence report recommended a sixteen-level sentencing enhancement based on the statutory rape conviction. The district court agreed with the presentence report and subjected Lopez-Solis to the enhancement after it concluded that statutory rape was "sexual abuse of a minor," and therefore a "crime of violence" under USSG § 2L1.2. The court sentenced Lopez-Solis to 46 months in prison, with 36 months of supervised release to follow.

Lopez-Solis now appeals, arguing that his Tennessee conviction for statutory rape is not a conviction for "sexual abuse of a minor," and is therefore not a "crime of violence" under USSG § 2L1.2. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's conclusion de novo.⁴

ANALYSIS

I.

One year after Lopez-Solis was sentenced, the Sentencing Commission amended the definition of "crime of violence" under the application note to USSG § 2L1.2(b)(1)(A) to include "statutory rape," in addition to "sexual abuse of a minor."⁵ Typically, we apply clarifying but not substantive amendments retroactively.⁶ We cannot do so if retroactive application would violate the ex post facto clause, however.⁷ As a threshold matter, then, we must determine whether we can apply the amended definition to Lopez-Solis's appeal.

In contrast to the dissent, we conclude that we cannot apply the amended definition retroactively. In this context retroactive application would violate the ex post facto clause.⁸ That clause is violated when: (1) a law is "appl[ied] to events occurring before its enactment," and (2) its application "disadvantage[s] the offender affected by it."⁹ Lopez-Solis's crime occurred before the amendment and, without the amendment, his crime did not satisfy the definition of "sexual abuse of a minor." Thus, we apply the 2002 version of § 2L1.2(b)(1)(A).¹⁰

II.

Section 2L1.2(b)(1)(A) provides a sixteen-level enhancement "[i]f the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence."¹¹ The application note to USSG § 2L1.2(b)(1)(A) defines "crime of violence" in the following manner:

"Crime of violence" —

(I) means an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and

(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.¹²

This circuit consistently has held that statutory rape laws prohibiting sexual contact with a minor under 16 proscribe conduct constituting "sexual abuse of a minor."¹³ We have never interpreted that phrase de novo with respect to a law such as Tennessee's that prohibits sexual contact with a minor between the ages of 17 and 18.¹⁴ As we discuss below, the age of the victim is material. The age affects whether the conduct the statutory rape law covers constitutes "abuse." Thus, this case requires us to "break new ground."¹⁵

III.

We begin our analysis by defining the phrase "sexual abuse of a minor."¹⁶ Then, we determine whether the conduct proscribed by section 39-13-506 falls within that definition.¹⁷ We must make the latter determination categorically: the conduct punished by section 39-13-506 "qualifies as `sexual abuse of a minor' . . . if and only if the `full range of conduct' covered by that statute falls within the meaning of that term."¹⁸ Under the "categorical" approach, "[w]e look solely to the statutory definition of the crime, not to . . . the underlying circumstances of the predicate conviction."¹⁹ In this case, the "full range of conduct" that section 39-13-506 covers ranges from consensual²⁰ sexual intercourse between a minor aged 13 and an adult many years older to the "slight[est]" sexual penetration of a minor just under 18 by a 22 year old.²¹ In order for section 39-13-506 to satisfy the categorical test, even the least egregious conduct the statute covers must qualify as "sexual abuse of a minor."²² If that conduct does not qualify, then section 39-13-506 is overbroad. Thus, our categorical inquiry need focus only on the conduct falling at the least egregious end of section 39-13-506's "range of conduct": "slight" sexual penetration of a minor just under 18 by a 22 year old.²³

IV.

Our first task is to define the phrase "sexual abuse of a minor." In cases involving non-traditional offenses, such as "sexual abuse of a minor," we define the offense based on "the ordinary, contemporary, and common meaning" of the statutory words.²⁴ Specifically, we "couple[ ] the dictionary definition of `abuse' with the common understanding of `sexual' and `minor'. . . ."²⁵ The common understanding of the words "sexual" and "minor" encompasses the conduct prohibited by section 39-13-506.²⁶ The section prohibits "sexual penetration" of individuals who are under 18, the legal age of majority. Thus, this case turns on the definition of "abuse."

Employing the dictionary definition, we have defined abuse as "misuse . . . to use or treat so as to injure, hurt, or damage. . . to commit indecent assault on."²⁷ The Eleventh Circuit similarly has defined abuse in this context to mean "physical or nonphysical misuse or maltreatment."²⁸ Both definitions encompass behavior that is harmful emotionally and physically. With these definitions in mind, we now compare them with the range of conduct prohibited by section 39-13-506. If the full range of conduct prohibited by the statute completely encompasses our definition of "abuse," then section 39-13-506 satisfies the categorical approach. However, if section 39-13-506 covers conduct that does not satisfy our definition, the statute is overbroad.

V.

As discussed above, section 39-13-506 categorically proscribes consensual sexual penetration of a victim just under 18 by an individual who is 22. "Sexual penetration" includes "any [consensual] intrusion, however slight, of any part of a person's body" into the victim's body.²⁹ For the following reasons, we hold that the conduct the statute proscribes does not categorically constitute physical or psychological "abuse."

A. Physical abuse

Consensual sexual penetration of an individual between the ages of 17 and 18 by a 22 year old does not necessarily involve physical "misuse," "injur[y]," or "assault" for three reasons.³⁰ First, physical "misuse," "injur[y]," or "assault" is not necessarily involved in the commission of the act. We recently held that a statutory rape law nearly identical to the one at issue here does not "by its nature, involve[] a substantial risk that physical force may be used against the [victim] . . . in the course of committing the offense."³¹ Second, physical harm or injury is not necessarily a result of the act. While we have recognized that pregnancy and contraction of sexually transmitted diseases constitute injuries that may result from sexual intercourse,³² section 39-13-506 encompasses conduct far short of intercourse.³³ Such conduct may present no risk of pregnancy and very little risk of sexually transmitted diseases.³⁴ Thus, the risk of pregnancy and contraction of disease associated with sexual intercourse is not present with respect to some of the conduct that section 39-13-506 covers. Accordingly, our concern in Asberry with the "serious potential risks" of sexual intercourse to teens does not apply here.³⁵

Third, according to Tennessee courts, physical abuse is neither involved in nor a result of the conduct section 39-13-506 proscribes. Specifically, courts distinguish between section 39-13-506 and Tennessee's sexual assault crimes.³⁶ Whereas sexual assault crimes "require some form of [assaultive] contact...