U.S. v. Rodriguez-Guzman

• Citation: 506 F.3d 738
• Decision Date: 22 October 2007
• Docket Number: No. 06-10585.,06-10585.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javier RODRIGUEZ-GUZMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

506 F.3d 738

UNITED STATES of America, Plaintiff-Appellee, v. Javier RODRIGUEZ-GUZMAN, Defendant-Appellant.

No. 06-10585.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 2007.

Filed October 22, 2007.

Franny Forsman, Federal Public Defender, Michael K. Powell (argued), Assistant Public Defender, Reno, NV, for the defendant-appellant.

Daniel G. Bogden, United States Attorney, Brian L. Sullivan, Robert A. Bork (argued) Assistant United States Attorneys, and Robert L. Ellman, Appellate Chief, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Brian E. Sandoval, District Judge, Presiding. D.C. No. CR-05-00203-BES.

Before: B. FLETCHER, EUGENE E.

SILER,^* and MICHAEL D. HAWKINS, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Defendant-Appellant Javier Rodriguez-Guzman challenges his sentence on the ground that the district court improperly applied a 16-level enhancement based on a prior conviction for statutory rape under section 261.5(c) of the California Penal Code. The district court held that Guzman's conviction under section 261.5(c) qualified as a per se "crime of violence" as defined by United States Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003). The district court did not, however, go on to consider whether the particular definition of statutory rape in section 261.5(c) — which sets the age of consent at eighteen — comports with the common understanding of that crime.

Under Taylor v. United States, the sentencing court must look to the "generic, contemporary meaning" of an offense when evaluating prior convictions for the purpose of applying enhancements. 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The laws of the vast majority of the states, federal law, and the Model Penal Code all set the age of consent at sixteen years old when defining statutory rape. We therefore hold that although statutory rape qualifies as a per se "crime of violence" under the Guidelines, section 261.5(c) is overly inclusive, exceeding the common and accepted definition of statutory rape, and so cannot be categorically applied to enhance a sentence under § 2L1.2(b)(1)(A)(ii). We VACATE Guzman's sentence and REMAND for re-sentencing.

BACKGROUND

The facts below are straightforward and materially undisputed. Javier Rodriguez-Guzman ("Guzman") was indicted on a single-count of violating 8 U.S.C. § 1326(a), Unlawful Reentry by a Deported Alien. He was arrested on September 30, 2005, having been deported several prior times. Guzman entered a guilty plea on December 15, 2005, reserving the right to challenge his sentence. Guzman's Presentencing Report ("PSR") revealed a conviction in April 2002 for "Unlawful Sexual Intercourse With a Minor," under Cal.Penal Code section 261.5(c) (2000).

Relying on that conviction, the district court determined that section 261.5(c) constituted statutory rape, a per se "crime of violence" under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. The district court imposed an automatic 16-level enhancement to the sentence, without examining the underlying facts of Guzman's conviction under section 261.5(c). Similarly, the district court did not consider whether the age of consent in section 261.5(c) — eighteen years old — was consistent with a generic and uniform definition of statutory rape. The sole issue on appeal is whether Guzman's conviction under section 261.5(c) was a proper basis for his 16-level enhancement.

ANALYSIS

I.

A district court's interpretation of the Guidelines is reviewed de novo. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). A district court's determination that a prior conviction qualifies as a "crime of violence" under the Guidelines is also reviewed de novo. United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc).

II.

Guzman first argues that section 261.5(c) is not a per se "crime of violence" under the Guidelines. To address this contention, we start with the relevant language of section 261.5(c) and the Guidelines. Section 261.5(c) of the California Penal Code provides:

Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator 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.

The term "minor" is defined in the same section as "a person under the age of 18 years." See section 261.5(a). Although section 261.5(c) is contained within a section titled "Unlawful sexual intercourse with person under 18," courts have recognized that section 261.5 is California's codification of statutory rape. See, e.g., Michael M. v. Superior Court, 450 U.S. 464, 466, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality opinion); People v. Osband, 13 Cal.4th 622, 55 Cal.Rptr.2d 26, 919 P.2d 640, 712 (1996) ("`Statutory rape' is commonly understood to be the offense of unlawful sexual intercourse with a minor (§ 261.5)....").

Next, a "crime of violence" in § 2L1.2(b)(1)(A)(ii) of the Guidelines is defined in the Application Notes and includes a number of specifically enumerated offenses, among them statutory rape.

"Crime of violence" means 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 use of physical force against the person of another.

U.S.S.G. § 2L1.2, Application Note 1(B)(iii) (2003) (emphasis added).

When an offense is specifically enumerated by the Application Notes as a "crime of violence," we have consistently drawn the conclusion that the offense is a per se crime of violence under the Guidelines. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) ("The fact that arson is specifically enumerated as a crime of violence in § 2L1.2(b)(1)(A)(ii) indicates that it is a crime of violence."); United States v. Pereira-Salmeron, 337 F.3d 1148, 1152 (9th Cir.2003) ("If the list of crimes[in the Application Notes] was intended by the Commission to have any meaning at all, it must have been to highlight certain crimes as deserving treatment as per se crimes of violence."); id. (and noting that every Circuit to address the question has reached the same conclusion). We reach the same result here. Based on the specific and deliberate inclusion of statutory rape within the definition of "crime of violence" in § 2L1.2(b)(1)(A)(ii), we conclude that section 261.5(c) is a per se crime of violence under the Guidelines.

Guzman nonetheless argues, counter-intuitively and counter-textually, that statutory rape is somehow not a "crime of violence." He does so by pointing out that statutory rape is not a "crime of violence" as that term is defined by 8 U.S.C. § 1101(a)(43)(F), and it is not enumerated as an "aggravated felony" in 8 U.S.C. § 1101(a)(43) generally. These two arguments are variations on the same incorrect theme, ignoring the fact that § 1101(a)(43)'s definition of "crime of violence" is materially different from the definition of "crime of violence" in § 2L1.2(b)(1)(A)(ii).

Section 1101(a)(43) does not independently define or categorize offenses for purposes of imposing sentencing enhancements under the Guidelines. Rather § 1101(a)(43), a section of the Aliens and Nationality code, defines the term "aggravated felony" for purposes of determining what is a deportable offense, and to fix criminal penalties for reentry after commission of an "aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); id. § 1326(b)(2) (establishing penalties for reentry by an alien "whose removal was subsequent to a conviction for commission of an aggravated felony"); Randhawa v. Ashcroft, 298 F.3d 1148, 1151-52 (9th Cir. 2002) (cross-referencing the definition of an "aggravated felony" in § 1101(a)(43) as the deportable offense for § 1227(a)(2)(A)(iii)). Section 1101(a)(43)(F) includes a "crime of violence" in that list of aggravated felonies. See § 1101(a)(43)(F) ("a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year" (emphasis added)). The relevant statute, 18 U.S.C. § 16, in turn defines a "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (2007). Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines, meanwhile, contains the substantively different definition of "crime of violence" set forth above, one that includes a number of specifically identified offenses. The Guidelines' definition of a "crime of violence" is thus separate and distinct from the definition of "crime of violence" in § 1101(a)(43)(F).¹

Accordingly, in United States v. Pimentel-Flores, we considered and rejected the contention that the definition of a "crime of violence" in § 1101(a)(43)(F) controls what may be considered a "crime of violence" under § 2L1.2(b)(1)(A)(ii). 339 F.3d 959, 963-64 (9th Cir.2003). Relying on the difference between the "plain language" of the statute and the Guidelines, we said

Although the phrase "crime of violence" appears in both the statute and the new guideline, the new guideline takes care to include its own definition. Significantly, the guideline definition is different from the statutory definition of that...