U.S. v. Gomez-Mendez

• Decision Date: 14 May 2007
• Docket Number: No. 05-50729.,05-50729.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro GOMEZ-MENDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 599

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro GOMEZ-MENDEZ, Defendant-Appellant.

No. 05-50729.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2006.

Filed May 14, 2007.

Benjamin L. Coleman, San Diego, CA, argued the cause for the defendant-appellant, and filed briefs.

Joseph S. Green, Assistant U.S. Attorney, San Diego, CA, argued the cause for the plaintiff-appellee; Carol C. Lam, U.S. Attorney, and Roger W. Haines, Jr., Assistant U.S. Attorney Chief, Appellate Section, Criminal Division, were on the brief.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-05-0041-TJW.

Before: ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, and JAY S. BYBEE, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We are asked to decide whether a defendant's prior California conviction for unlawful sexual intercourse with a minor qualifies as a "crime of violence" under the federal Sentencing Guidelines.

I

On March 1, 2005, a U.S. Border Patrol agent found Alejandro Gomez-Mendez near the San Ysidro, California, Port of Entry. Gomez-Mendez was arrested after admitting that he was a citizen and national of Mexico and present in the United States without any documents permitting him to enter the United States legally. A grand jury returned a one-count indictment charging Gomez-Mendez with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Gomez-Mendez pled guilty to the charge without the benefit of a plea agreement.

The probation officer filed a presentence report, which indicated that the maximum term of imprisonment was twenty years and recommended a sentence of ninety-four months. The presentence report computed the base offense level as eight and concluded that a sixteen-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was appropriate because of Gomez-Mendez's 2002 conviction for felony unlawful sexual intercourse with a minor under age sixteen by a person twenty-one years of age or older, in violation of Cal.Penal Code § 261.5(d). The presentence report further recommended a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), but recommended against the extra one-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) because the government failed to file the required motion.

Gomez-Mendez objected to the report's recommended sentence, arguing that the maximum statutory penalty was only two years imprisonment and one year of supervised release, because the California conviction was neither alleged in the indictment nor admitted at the plea colloquy. He also argued that a sixteen-level enhancement was inappropriate because his prior California conviction did not categorically qualify as a "crime of violence." Finally, Gomez-Mendez claimed that a three-level downward adjustment for acceptance of responsibility was appropriate because the government had no good faith basis for not filing the motion required for the additional one-level adjustment under U.S.S.G. § 3E1.1(b).

The district court refused to decide whether the government improperly declined to file the motion required for the extra one-level downward adjustment for acceptance of responsibility.¹ The district court sentenced Gomez-Mendez to eighty-four months in custody, three years of supervised release, and a $100 penalty. The sentence included a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for the prior felony conviction under Cal.Penal Code § 261.5(d). The sentence also reflected a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).

Gomez-Mendez appeals.

II

We consider as a matter of first impression Gomez-Mendez's argument that the district court erred in holding that his prior conviction under Cal.Penal Code § 261.5(d) was a "crime of violence."

A

Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines provides for a sixteen-level sentencing enhancement upon conviction under 8 U.S.C. § 1326, where an alien illegally reentered the United States after having been previously deported subsequent to a conviction for a felony "crime of violence."² The Sentencing Guidelines fail to define a "crime of violence" for such purposes. The Commission's commentary, however, defines a "crime of violence" to mean any of the following: "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened used of physical force against the person of another." U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (emphasis added).³

B

To determine whether a conviction constitutes "statutory rape" and therefore a "crime of violence," we employ the familiar categorical approach the Supreme Court crafted in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Guerrero-Velasquez, 434 F.3d at 1195. In cases involving nontraditional offenses, as here,⁴ we must determine whether the full scope of the conduct proscribed by Cal.Penal Code § 261.5(d) falls within "the ordinary, contemporary, and common meaning" of the term "statutory rape." United States v. Lopez-Solis, 447 F.3d 1201, 1206-07 (9th Cir.2006) (internal quotation marks omitted). When we make this determination under the categorical approach, we "do not examine the facts underlying the prior offense, but `look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).⁵

Section 261.5(d) of the California Penal Code, the offense at issue in this case, provides:

Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

Cal.Penal Code § 261.5(d). This section is considered California's statutory rape law. See Michael M. v. Superior Court, 450 U.S. 464, 466, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981); In re Jennings, 34 Cal.4th 254, 17 Cal.Rptr.3d 645, 95 P.3d 906, 921 (2004); People v. Osband, 13 Cal.4th 622, 55 Cal. Rptr.2d 26, 919 P.2d 640, 712 (1996).⁶

The term "statutory rape" is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute.⁷ This meaning of "statutory rape" covers the full range of conduct proscribed by Cal.Penal Code § 261.5(d). Moreover, we have recognized that the commentary to U.S.S.G. § 2L1.2 "lists statutory rape as per se a crime of violence." Valencia v. Gonzales, 439 F.3d 1046, 1053(9th Cir.2006). Therefore, the district court did not err in concluding that Gomez-Mendez's prior conviction for felony unlawful sexual intercourse with a minor under sixteen years of age in violation of Cal.Penal Code § 261.5(d) qualified categorically as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and warranted a sixteen-level sentencing enhancement.

Gomez-Mendez nevertheless argues that a conviction under Cal.Penal Code § 261.5(d) is overbroad under the categorical approach because, according to Gomez-Mendez, unlike "a large number of states" and the Model Penal Code, the reasonable belief that the victim was over the age of sixteen is no defense to statutory rape in California.⁸ Under California case law, a reasonable belief that the victim was eighteen or older, the age of consent established by Cal.Penal Code § 261.5(a), is a defense, see People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 677 (1964), but a reasonable belief that the victim was sixteen, the age under which the most severe punishment attaches to the offense pursuant to Cal.Penal Code § 261.5(d), is no defense, see People v. Scott, 83 Cal.App.4th 784, 100 Cal.Rptr.2d 70, 81-82 (2000). Thus, this affirmative defense to statutory rape in California essentially mirrors the Model Penal Code's position, see Model Penal Code § 213.6(1), in all ways but one: California sets the age of consent at eighteen, rather than sixteen like the Model Penal Code and certain other states. See Model Penal Code § 213.3(1)(a).

This difference is of no consequence. Taylor stands for the proposition that a state crime must include all of the elements of the generic federal crime. See Asberry, 394 F.3d at 715 ("Under the categorical approach, we consider only the statutory elements of the offense . . . ."). Assuming, without deciding, that Taylor also requires that a state crime incorporate widely accepted affirmative defenses in order to fall within the generic definition, the affirmative defense Gomez-Mendez points to would not be part of the generic federal definition of statutory rape. In most jurisdictions, statutory rape is a strict liability crime. See supra notes 7 & 8. Thus a state statute criminalizing unlawful sexual intercourse with a minor can fall within the generic definition even if it allows no mistake-of-age defense—much less one that is contingent on defendant believing his victim was at least sixteen.

Gomez-Mendez further contends that Cal.Penal Code § 261.5(d) is overbroad under the categorical approach because "promiscuity" or "unchaste character" provides no defense to statutory rape in California. Gomez-Mendez's only authority for this assertion is Model Penal Code § 213.6(3), which continues in spite of sharp criticism to promote a promiscuity defense. He cites no jurisdiction, and we are aware of none, that retains a promiscuity...