United States v. Zamorano-Ponce

• Decision Date: 16 September 2011
• Docket Number: No. 11CR01244–001–CKJ–JCG.,11CR01244–001–CKJ–JCG.
• Parties: UNITED STATES of America, Plaintiff, v. Raul ZAMORANO–PONCE, Defendant.
• Court: U.S. District Court — District of Arizona

817 F.Supp.2d 1108

UNITED STATES of America, Plaintiff,

v.Raul ZAMORANO–PONCE, Defendant.

No. 11CR01244–001–CKJ–JCG.

United States District Court, D. Arizona.

Sept. 16, 2011.

Jeffrey Daniel Martino, U.S. Attorneys Office, Tucson, AZ, for Plaintiff.

Andrea L. Matheson, Matheson Law Firm PC, Tucson, AZ, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING APPLICABILITY OF U.S.S.G. § 2L1.2(b)(1)(A) ENHANCEMENT

MARK W. BENNETT, District Judge.

+-----------------+
                ¦TABLE OF CONTENTS¦
                +-----------------+
                

                I. INTRODUCTION                                                      1110
                II. LEGAL ANALYSIS                                                    1112
                

 A. The Applicable Guideline                                        1112
                   B. Judicial Determinations Of “Crimes Of Violence”             1113
                

 1. The two approaches                                         1113
                        2. The categorical approach                                   1115
                        3. Modified categorical approach                              1117
                

III. CONCLUSION                                                        1118
                

This case is before me ¹ on an issue of first impression: Does a conviction for rape of a child in the third degree in violation of Revised Code of Washington (RCW) § 9A.44.079 constitute an enumerated “crime of violence” resulting in a 16–level enhancement, pursuant to U.S.S.G. § 2L1.2, of the sentence of a defendant who pleaded guilty to re-entry after deportation in violation of 8 U.S.C. § 1326(a)?

I. INTRODUCTION

According to the presentence investigation report (PSR), on March 13, 2011, U.S. border patrol agents apprehended a group of 11 people, including defendant Raul Zamorano–Ponce, near Lukeville, Arizona. Upon questioning, the group admitted being citizens of Mexico without legal documentation to be in the United States. During the presentence interview, Zamorano–Ponce indicated that his intention was to reside in Washington and to work in the fields. The group were taken to the Ajo border patrol station for processing. Zamorano–Ponce was eventually indicted on a charge of re-entry after deportation, in violation of 8 U.S.C. § 1326(a), with sentencing enhancement pursuant to 1326(b)(2), a Class C felony. Zamorano–Ponce faces a maximum possible sentence of 20 years of imprisonment and a maximum possible fine of $250,000.

Zamorano–Ponce pleaded guilty to the charge on May 12, 2011, pursuant to a “fast track” written plea agreement. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and U.S.S.G. § 5K3.1, the parties stipulate to a sentencing range of 33 to 41 months imprisonment based on a Criminal History Category II (down from the calculated guideline range of 41 to 51 months), if Zamorano–Ponce is subject to the 16–level enhancement for a prior “crime of violence” pursuant to U.S.S.G. § 2L1.2(a) and (b)(1)(A). However, if I find that such an enhancement is not applicable, only a 4–level increase for a prior felony conviction is applicable, resulting in a stipulated sentence of 2 to 8 months (down from the calculated guideline range of 8 to 14 months).

The PSR provided the following explanation for application of the 16–level enhancement:

8. Specific Offense Characteristic: Sixteen levels are added because the defendant was deported subsequent to an aggravated felony crime of violence conviction for statutory rape (Case 03–1–0095–0). U.S.S.G. § 2L1.2(b)(1)(A).

Although a definition of Revised Code Washington (RCW) § 9A.44.079 is overly broad, court records (including the charging instrument, plea agreement, and sentencing document) establish that the defendant, age 24, engaged in nonconsensual sexual intercourse with a minor, age 15. Accordingly, this conviction meets the definition of an aggravated felony and an enumerated crime of violence (statutory rape) pursuant to U.S.S.G. § 2L1.2, comment. (n. 1(.1(B)(iii)).

PSR at ¶ 8.

Zamorano–Ponce objected to this enhancement. Specifically, he pointed out that the PSR acknowledged that the definition of RCW § 9A.44.079 is overly broad, so that it does not fit the categorical definition of “statutory rape” or “sexual abuse of a minor,” enumerated crimes of violence in U.S.S.G. § 2L1.2, n. 1.B.iii. He argues that the statute at issue here does not meet the generic definition of “sexual abuse of a minor” under either framework identified in Ninth Circuit law, nor does it meet the definition for “statutory rape” set forth in Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) ( en banc ) for two reasons: (1) it lacks the mens rea element of “knowingly engaged,” and (2) it is broader than the generic offense with respect to the age of the minor because the statute applies to persons between fourteen and sixteen years of age. As a result, he contends that the conduct proscribed in RCW § 9A.44.079 exceeds the generic offense. He also argues that, because the statute lacks the mens rea and age difference requirements, and any element of “abuse,” a modified categorical approach also does not apply.

The prosecution counters that RCW § 9A.44.079 does fall squarely within the generic description of “statutory rape” in the Ninth Circuit, that is, it is an offense involving sexual intercourse with an individual under the age of 16. The prosecution points out that the decision in Estrada–Espinoza did not discuss the definition of “statutory rape” for purposes of U.S.S.G. § 2L1.2, but for purposes of determination of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A). Thus, the prosecution contends that, for purposes of a “statutory rape” offense within the meaning of § 2L1.2, there is no mens rea requirement. In the alternative, the prosecution argues that the Washington statute at issue here defines a “forcible sex offense” crime of violence within the meaning of U.S.S.G. § 2L1.2, as “forcible sex offenses” were more broadly defined in an amendment to the Sentencing Guidelines effective November 1, 2008, because the victim was incapable of legally valid consent.

The probation officer rejected Zamorano–Ponce's objection, reasoning that, under a modified categorical approach, which allows analysis of available judicially-noticeable documents, Zamorano–Ponce's prior conviction qualified as a crime of violence pursuant to U.S.S.G. § 2L1.2 as a “statutory rape” conviction. The probation officer noted that the enhancement was not premised on a prior conviction for “sexual abuse of a minor.” Specifically, the probation officer pointed out that Model Penal Code § 213(1)(a) defines “statutory rape” as “[a] male [having] sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse, ... if: (a) the other person is less than [16] years old and the actor is at least [four] years older than the other person ...” Similarly, RCW § 9A.44.079 defines “rape of a child in the third degree” as a person having sexual intercourse with another who is at least 14 years old but less than 16 years old, not married to the perpetrator, and where the perpetrator is at least 48 months older than the victim. The probation officer points out that available judicially-noticeable documents, that is, the plea agreement, show that, in Zamorano–Ponce's prior offense, the victim was 15 years old, Zamorano–Ponce had sexual intercourse with her, he and the victim were not married, the victim did not consent, and Zamorano–Ponce was 24 years old at the time of the offense. Therefore, the probation officer did not change the PSR.

Zamorano–Ponce came on for sentencing before me on September 12, 2011, while I was serving as a visiting judge in the District of Arizona. After hearing initial arguments of the parties, I continued the hearing until September 15, 2011, so that I could consider the matter further. The parties additional arguments on September 15, 2011, were spirited and informative.

On September 13, 2011, I received by e-mail the defendant's Points In Support Of Sentencing Argument. In his Points, the defendant reiterated his contention that, pursuant to Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) ( en banc ), the federal generic definition of “statutory rape” has four essential elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor, and reiterating his argument that the offense defined by RCW § 9A.44.079 lacks the required mens rea element. Under these circumstances, he reiterates that the state offense is not “statutory rape” under the “categorical approach” and that the “modified categorical approach” is inapplicable. Moreover, he asserts that he did not admit in any judicially-noticeable documents any of the elements of the federal generic offense of “statutory rape,” and clearly could not have admitted the first, because it is not an element of the state offense.

II. LEGAL ANALYSIS

A. The Applicable Guideline

The applicable guideline provision provides as follows:

§ 2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels; or

(E) three or...