U.S. v. Lopez-Montanez, 04-50260.

• Decision Date: 26 August 2005
• Docket Number: No. 04-50260.,04-50260.
• Citation: 421 F.3d 926
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David LOPEZ-MONTANEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 926

UNITED STATES of America, Plaintiff-Appellee, v. David LOPEZ-MONTANEZ, Defendant-Appellant.

No. 04-50260.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2005.

Filed August 26, 2005.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Kevin Mulcahy and Matthew Gardner, Assistant United States Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding. D.C. No. CR-03-03333-MJL.

Before: B. FLETCHER, RYMER and FISHER, Circuit Judges.

FISHER, Circuit Judge.

This case presents the question of whether a prior felony conviction under California's sexual battery statute, Cal.Penal Code, § 243.4(a), constitutes a "crime of violence" under the federal Sentencing Guidelines' provision governing sentences for unlawful reentry into the United States, U.S.S.G. § 2L1.2. The district court found that a conviction under the California statute was a "forcible sex offense" and thus a "crime of violence" for purposes of § 2L1.2. We disagree, and hold that a conviction under the California sexual battery statute is not a categorical crime of violence under § 2L1.2(b)(1)(A). Applying this circuit's modified categorical approach, we also hold that the government did not adequately prove that the appellant's California conviction in fact qualified as a crime of violence. Accordingly, we reverse the district court's judgment, vacate the sentence and remand for resentencing.¹

I.

In February 2004, a jury found the appellant, David Lopez-Montanez, guilty of illegally reentering the United States after having been previously removed, a violation of 8 U.S.C. § 1326. Prior to sentencing, Lopez-Montanez filed objections to the Presentence Report ("PSR"). Specifically, he argued that his 1993 conviction for sexual battery under Cal.Penal Code § 243.4(a) did not qualify as a crime of violence. The district court disagreed, and found that a conviction under Cal.Penal Code § 243.4(a) is categorically a crime of violence and, under the modified categorical approach, the documents submitted by the government demonstrated that Lopez-Montanez's offense in fact qualified as a crime of violence. Applying the Sentencing Guidelines' crime of violence enhancement, the district court sentenced Lopez-Montanez to 46 months' imprisonment, followed by three years of supervised release. Lopez-Montanez appeals this determination.²

II.

Following a conviction for illegal reentry, a 16-level increase in the offense level is required if the defendant was previously removed after conviction for a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A). According to the Application Notes to § 2L1.2: "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.

U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (2002) (emphasis added).³ We have explained that "the force necessary to constitute a crime of violence [] must actually be violent in nature." Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000) (internal quotation marks omitted).

Lopez-Montanez contends that his prior conviction under the California sexual battery statute does not fall within the Guidelines' definition of a crime of violence because it criminalizes conduct that does not involve the requisite use of physical force. The statute of conviction provides:

Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.

Cal.Penal Code § 243.4(a) (emphasis added).

In determining whether a prior conviction is a qualifying offense for sentencing enhancement purposes, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See, e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-68 (9th Cir.2003) (discussing this court's application of the Taylor analysis to the imposition of various sentencing enhancements in the Guidelines). Under Taylor's categorical approach, we "look only to the fact of conviction and the statutory definition of the prior offense," not to the underlying facts. United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (internal quotation marks and citation omitted).

We conclude that a conviction under the California sexual battery statute is not a categorical crime of violence because the statute is overly inclusive in two respects. First, the touching referred to in § 243.4(a) does not require the use of force. Under the statute, it is sufficient that the defendant initiate physical contact with an intimate body part of the victim. See Cal.Penal Code § 243.4(f) ("`[T]ouches' means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense."). In Singh v. Ashcroft, 386 F.3d 1228, 1233 (9th Cir.2004), we held that an offense under the Oregon harassment statute was not a categorical crime of violence because it did not involve the requisite use of force and "can be made out based on an ephemeral touching, so long as it is offensive." Similarly, under the California sexual battery statute, the touching may be "ephemeral," or committed without the use of force.

Second, although the statute requires that the victim be "unlawfully restrained," the restraint need not be physical and can be accomplished by words alone, including words that convey no threat of violence. For example, in People v. Grant, 8 Cal.App.4th 1105, 10 Cal.Rptr.2d 828, 830-33 (1992), the defendant came up to a car in which the victim and her boyfriend were parked, told them that he worked with the police and also for the owner of the property where the car was parked and ordered the victim to the rear of the vehicle, where he touched the victim, placing his hands inside her shirt and pants. The court rejected the defendant's argument that the "unlawfully restrained" element required an implied threat of physical force or violence, stating:

[o]nce again defendant posits a definition that is too restrictive. He equates force or threat of force with personal violence and threats of personal violence. There are many situations where one is compelled, i.e., forced, to do something against one's will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure.

10 Cal.Rptr.2d at 833 (emphasis added); People v. Arnold, 6 Cal.App.4th 18, 7 Cal.Rptr.2d 833, 840 (1992) (holding that "unlawful restraint" was established when a high school teacher blocked one exit to a gymnasium even though the victim was able to leave through an alternate exit).

The government relies on United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir.2003), and its progeny for the proposition that "forcible sexual offenses" need not involve force because there is a substantial potential for violence. This argument, however, is unavailing under our case law. In Pereira-Salmeron, we held that a Virginia statute that criminalized the sexual abuse of a minor without the use of force was a crime of violence because § 2L1.2 specifically listed sexual abuse of a minor as a per se crime of violence. We distinguished between sexual abuse of a minor, which does not require the use of force, and "forcible sex offenses," which do. Pereira-Salmeron, 337 F.3d at 1152 ("If the Sentencing Commission intended [the crime of violence definition] to apply to `sexual abuse of a minor' only when that crime involved the use of physical force, it would have been surplusage to include it in a parenthetical, because such a crime would have already have been covered by the term `forcible sex offenses.' "); see also United States v. Granbois, 376 F.3d 993, 996 (9th Cir.2004) ("[T]he phrase `sexual abuse of a minor' . . . was intended to include abuse that does not include the use of force: `Thus, an offense constituting "sexual abuse of a minor," whether it includes — or even explicitly excludes — "force" as an element, is deemed to be a "forcible sex offense" and thus a "crime of violence" for the purposes of this Guideline.' ") (citation omitted).

Pereira-Salmeron and its progeny thus stand for the proposition that the commission of sexual abuse of a minor constitutes a crime of violence even if the statute of conviction does not require the use of force. Neither our case law nor the statute, however, supports the proposition that the commission of a "forcible sex offense[]" against an individual who is not a minor constitutes a crime of violence if the statute of conviction does not require the use of force. We therefore reject the government's invitation to read out "forcible" from "forcible sex offenses."

We note that in Lisbey v. Gonzales, 04-70557, 420 F.3d 930, 2005 WL 2000975 (9th Cir.2005), we held that sexual battery was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony as that term is defined in 8 U.S.C. § 1101(a)(43)(F). Lisbey does not conflict with our reading of the Sentencing Guideline section at issue here, however. In Lisbey we were applying the definition of aggravated felony under a provision of the Immigration...