United States v. Acosta-Chavez, 12–10324.

• Decision Date: 14 August 2013
• Docket Number: No. 12–10324.,12–10324.
• Citation: 727 F.3d 903
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Facundo ACOSTA–CHAVEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

727 F.3d 903

UNITED STATES of America, Plaintiff–Appellee,

v.Facundo ACOSTA–CHAVEZ, Defendant–Appellant.

No. 12–10324.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 13, 2013.

Filed Aug. 14, 2013.

David W. Basham, Law Office of David W. Basham, Tucson, AZ, for Defendant–Appellant.

Erica L. Seger, Assistant United States Attorney, United States Attorney's Office, Tucson, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:11–cr–04125–CKJ–DTF–1.

Before: A. WALLACE TASHIMA and JAY S. BYBEE, Circuit Judges, and KIMBA M. WOOD, Senior District Judge.^*

OPINION

WOOD, Senior District Judge:

Facundo Acosta–Chavez appeals his thirty-month sentence of imprisonment for illegal reentry after deportation. Acosta–Chavez contends that the district court erred in deeming his 2005 Illinois conviction for Aggravated Criminal Sexual Abuse a “crime of violence” under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), which mandates a sixteen-level enhancement of his Sentencing Guidelines level. Acosta–Chavez contends that the alleged error was not harmless. He also seeks remand to a different district judge for resentencing.

Applying the Supreme Court's recent decision in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we conclude that the district court erred in holding Acosta–Chavez's crime to be a “crime of violence,” an error that resulted from the district court's application of the modified categorical approach when it compared the elements of Acosta–Chavez's offense with the elements of its federal analogue. This error was not harmless. We vacate Acosta–Chavez's sentence, and remand to the original district judge for resentencing.

I

Following his 2005 guilty plea to Illinois Aggravated Criminal Sexual Abuse, Acosta–Chavez was removed from the country. He reentered illegally in 2011 and was arrested in Arizona. On December 14, 2011, Acosta–Chavez was indicted for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). On March 28, 2012, he pled guilty without a plea agreement.

At sentencing, the district court calculated the applicable United States Sentencing Guidelines (“Guidelines”) range to be forty-six to fifty-seven months. The court based this determination on its conclusion that Acosta–Chavez's 2005 Illinois conviction qualified as a “crime of violence,” resultingin a sixteen-level enhancement. SeeU.S.S.G. § 2L1.2(b)(1)(A)(ii). The court held, however, that despite the seriousness of Acosta–Chavez's 2005 Illinois conviction, the forty-six to fifty-seven month Guidelines range “overstate[d] the nature of that particular conviction,” making a below-Guidelines sentence more appropriate. After evaluating the statutory sentencing factors, the court imposed a sentence of thirty months imprisonment.

Acosta–Chavez's 2005 Illinois conviction arose from conduct that occurred in 2001. The Criminal Indictment, filed in Illinois state court, charged that on February 20, 2001, twenty-three year old Acosta–Chavez “knowingly committed an act of sexual conduct with [the victim], who was at least 13 years of age but under 17 years of age, in that [Acosta–Chavez] placed his hand on the breast of [the victim] and [Acosta–Chavez] was at least five years older than [the victim]” in violation of chapter 720, section 5/12–16(d) of the Illinois Compiled Statutes. This provision defines Aggravated Criminal Sexual Abuse as “an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.” 720 Ill. Comp. Stat. 5/11–1.60. Illinois law defines “sexual conduct” as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused ... for the purpose of sexual gratification or arousal of the victim or the accused.” 720 Ill. Comp. Stat. 5/11–0.1.¹

On February 22, 2005, Acosta–Chavez, then age twenty-seven, appeared in Illinois state court for a change of plea hearing.² At the hearing, Acosta–Chavez, represented by counsel, pled guilty to Aggravated Criminal Sexual Abuse, in violation of 720 Ill. Comp. Stat. 5/11–1.60(d). Acosta–Chavez confirmed that he understood the nature of the charges and acknowledged that he had engaged in “physical conduct with a young girl.” The prosecutor provided the following factual basis for the plea:

Judge, if witnesses were called and exhibits introduced, we would show that [the victim] was born on January 31, 1987; we would show [that Acosta–Chavez] was born on November 27, 1977. We would show that sometime around February 20, 2001, the Defendant knowingly placed his hands on the breasts of [the victim], and the Defendant was more than five (5) years older than [the victim] and he did this for purposes of sexual arousal of himself and [the victim].

Defense counsel agreed with this statement of facts. The Illinois court accepted this factual basis for the plea, concluded that the plea was knowing and voluntary, and imposed a sentence of three months imprisonment, to be followed by three years probation. Acosta–Chavez was subsequently removed from the country.

As noted, Acosta–Chavez was then re-arrested in 2011, leading to his instant conviction for illegal reentry.

II

Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant convicted of illegal reentry receives a sixteen-level sentencing enhancement if the defendant “previously was deported,or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” There is no dispute that Acosta–Chavez was previously deported. The Guidelines Commentary states that a “crime of violence” includes any of the following offenses under federal, state, or local law:

Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other 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. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2012); see also United States v. Rodriguez–Guzman, 506 F.3d 738, 741 (9th Cir.2007).

The Government argued before the district court that Acosta–Chavez's Illinois crime constituted a “crime of violence” because it qualified as both “sexual abuse of a minor” and a “forcible sex offense.” SeeU.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2012). Acosta–Chavez objected. The district court ultimately adopted the Government's view, finding that the offense was both sexual abuse of a minor and a forcible sex offense.

On appeal, however, the Government abandons its position that Acosta–Chavez's Illinois offense constitutes sexual abuse of a minor. Accordingly, the sole issue before this Court is whether Acosta–Chavez's Illinois offense should be deemed a forcible sex offense and therefore a “crime a violence.” This Court reviews this question de novo.United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.2009).

III

A

In order to determine whether a crime qualifies as a “crime of violence,” courts apply the framework established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Taylor established a “formal categorical approach,” id. at 600, 110 S.Ct. 2143, whereby sentencing courts “compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.” United States v. Valencia–Barragan, 608 F.3d 1103, 1107 (9th Cir.2010) (internal quotation marks omitted). If the statute of conviction “sweeps more broadly than the generic crime, a conviction under that law cannot [categorically] count as [a qualifying] predicate, even if the defendant actually committed the offense in its generic form.” Descamps, 133 S.Ct. at 2283.

Where the categorical approach is not determinative, the sentencing court may, in a “narrow range of cases,” apply a “modified categorical approach.” See id. at 2283 (discussing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In Descamps, the Supreme Court clarified the proper application of the modified categorical approach.³ Before a sentencing court may use this approach, it must first determine that the defendant was convicted of violating a “ divisiblestatute.

” Id. at 2285 (emphasis added). A “divisible statute,” the Court explained, is one that “sets out one or more elements of the offense in the alternative” or “comprises multiple, alternative versions of the crime.” Id. at 2281, 2284. The modified categorical approach may be used only when one of those alternatives is an element of the generic offense, and another is not. In these narrow circumstances, the sentencing court may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id. at 2281. “The court can then do what the categorical approach demands: compare the elements of the crime of conviction ... with the elements of the generic crime.” Id.

B

In order to apply either approach, we must ascertain the generic federal definition of “forcible sex offense.” Although we have never comprehensively defined this crime, we have instructed that the term should be defined with reference to its “ordinary, contemporary, and common meaning.” United States v. Bolanos–Hernandez, 492 F.3d 1140, 1143–44 (9th Cir.2007). The parties' arguments in this case focus on whether Acosta–Chavez's...