United States v. Gomez-Mendez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50729

Plaintiff-Appellee,

v.  D.C. No.

CR-05-0041-TJW

ALEJANDRO GOMEZ-MENDEZ,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

Argued and Submitted

August 15, 2006—Pasadena, California

Filed May 14, 2007

Before: Alex Kozinski, Diarmuid F. O’Scannlain, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge O’Scannlain

5651

5654 UNITED STATES v. GOMEZ-MENDEZ

COUNSEL

Benjamin L. Coleman, San Diego, California, argued the

cause for the defendant-appellant, and filed briefs.

Joseph S. Green, Assistant U.S. Attorney, San Diego, Califor-

nia, 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.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide whether a defendant’s prior Califor-

nia conviction for unlawful sexual intercourse with a minor

qualifies as a “crime of violence” under the federal Sentenc-

ing Guidelines.

I

On March 1, 2005, a U.S. Border Patrol agent found Ale-

jandro Gomez-Mendez near the San Ysidro, California, Port

UNITED STATES v. GOMEZ-MENDEZ 5655

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 enhance-

ment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was appropri-

ate 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 recom-

mended a two-level downward adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a), but recom-

mended 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 sen-

tence, 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 respon-

sibility 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).

5656 UNITED STATES v. GOMEZ-MENDEZ

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 responsibil-

ity.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 sen-

tence 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

[1] Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing

Guidelines provides for a sixteen-level sentencing enhance-

ment upon conviction under 8 U.S.C. § 1326, where an alien

illegally reentered the United States after having been previ-

ously deported subsequent to a conviction for a felony “crime

of violence.”2 The Sentencing Guidelines fail to define a

1

The district court and the parties framed the inquiry as whether the

government violated an “abuse of discretion” standard. As discussed

below, we have recently held that the proper inquiry is whether the gov-

ernment acted “on the basis of an unconstitutional motive (e.g., racial dis-

crimination), or arbitrarily (i.e., for reasons not rationally related to any

legitimate governmental interest).” United States v. Espinoza-Cano, 456

F.3d 1126, 1136 (9th Cir. 2006) (internal quotation marks omitted).

2

While the Sentencing Guidelines are now advisory, see United States

v. Booker, 543 U.S. 220, 259 (2005); United States v. Ameline, 409 F.3d

UNITED STATES v. GOMEZ-MENDEZ 5657

“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, sex-

ual 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

1

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 (1990). Guerrero-

Velasquez, 434 F.3d at 1195. In cases involving nontraditional

offenses, as here,4 we must determine whether the full scope

1073, 1077 (9th Cir. 2005) (en banc), they remain “an important aid for

district judges seeking to determine the appropriate sentence for a defen-

dant and which help to maintain uniformity in sentencing throughout the

country,” United States v. Guerrero-Velasquez, 434 F.3d 1193, 1195 n.1

(9th Cir. 2006). Accordingly, we review de novo whether the district court

correctly interpreted and applied the Sentencing Guidelines. United States

v. Baza-Martinez, 464 F.3d 1010, 1013 (9th Cir. 2006).

3

“Commentary to the Guidelines binds us in interpreting their provi-

sions unless it violates the Constitution or federal statute, or is inconsistent

with the Guidelines.” United States v. Asberry, 394 F.3d 712, 716 n.5 (9th

Cir. 2005).

4

Although we have suggested that statutory rape is an extension of the

common law crime of forcible rape and that the offense is old enough to

be considered part of the common law in the United States despite its stat-

utory heritage, see United States v. Brooks, 841 F.2d 268, 269 (9th Cir.

1988) (per curiam), statutory rape is distinct from the common law offense

5658 UNITED STATES v. GOMEZ-MENDEZ

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 cate-

gorical 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).5

[2] 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 mis-

demeanor 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.

of forcible rape and not considered a “traditional” common law offense,

see United States v. Carlos-Colmenares, 253 F.3d 276, 279 (7th Cir.

2001); United States v. Rider, 282 F.2d 476, 477 & n.3 (9th Cir. 1960).

Unlike “traditional” common law offenses that generally required mens

rea, see Staples v. United States, 511 U.S. 600, 605 (1994); Morissette v.

United States, 342 U.S. 246, 251(1952); United States v. Balint, 258 U.S.

250, 251 (1922), “statutory rape was universally regarded as a strict liabil-

ity offense until well into the twentieth century,” Brooks, 841 F.2d at 270

(emphasis added); see also infra note 8.

5

If the offense fails to qualify as a “crime of violence” under the cate-

gorical approach, we may “go beyond the mere fact of conviction” and

consider “documentation of judicially noticeable facts that clearly estab-

lish the conviction is a predicate conviction for enhancement purposes.”

United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en

banc) (internal quotation marks omitted). We need not employ the modi-

fied categorical approach in this case because the parties did not raise this

issue on appeal and because of our decision on the merits.

UNITED STATES v. GOMEZ-MENDEZ 5659

Cal. Penal Code § 261.5(d). This section is considered Cali-

fornia’s statutory rape law. See Michael M. v. Superior Court,

450 U.S. 464, 466 (1981); In re Jennings, 95 P.3d 906, 921

(Cal. 2004); People v. Osband, 919 P.2d 640, 712 (Cal. 1996).6

[3] The term “statutory rape” is ordinarily, contemporarily,

and commonly understood to mean the unlawful sexual inter-

course 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 vio-

lence.” 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.

2

[4] Gomez-Mendez nevertheless argues that a conviction

under Cal. Penal Code § 261.5(d) is overbroad under the cate-

6

Although Cal. Penal Code § 261.5 is titled “Unlawful Sexual Inter-

course,” “[w]e look solely to the statutory definition of the crime, not to

any name given to the offense.” United States v. Baron-Medina, 187 F.3d

1144, 1146 (9th Cir. 1999).

7

See Black’s Law Dictionary 1288 (8th ed. 2004) (defining “statutory

rape” as “[u]nlawful sexual intercourse with a person under the age of

consent (as defined by statute), regardless of whether it is against that per-

son’s will”); see also Susan M. Kole, Annotation, Statute Protecting

Minors in a Specified Age Range from Rape or Other Sexual Activity as

Applicable to Defendant Minor Within Protected Age Group, 18 A.L.R.

5th 856, § 2[a] (1994) (“In most states, the elements of statutory sex

offenses are simply sexual intercourse or engaging in some other pro-

scribed sexual act with a minor under the age of consent as specified in

the statute.”).

5660 UNITED STATES v. GOMEZ-MENDEZ

gorical 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 six-

teen is no defense to statutory rape in California.8 Under Cali-

fornia 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, 393

P.2d 673, 677 (Cal. 1964), but a reasonable belief that the vic-

tim was sixteen, the age under which the most severe punish-

ment attaches to the offense pursuant to Cal. Penal Code

§ 261.5(d), is no defense, see People v. Scott, 100 Cal. Rptr.

2d 70, 81-82 (App. Ct. 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 eigh-

teen, rather than sixteen like the Model Penal Code and cer-

tain other states. See Model Penal Code § 213.3(1)(a).

[5] This difference is of no consequence. Taylor stands for

the proposition that a state crime must include all of the ele-

ments of the generic federal crime. See Asberry, 394 F.3d at

715 (“Under the categorical approach, we consider only the

8

A mistake-of-age defense to statutory rape is the minority rule in the

United States. See Colin Campbell, Annotation, Mistake or Lack of Infor-

mation as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R. 5th

499, § 2[a] (1997) (“The majority rule in the United States is that a defen-

dant’s knowledge of the age of a victim is not an essential element of stat-

utory rape. . . . A defendant’s good faith or reasonable belief that the

victim is over the age of consent is simply no defense. . . . Statutory rape,

then, is commonly referred to as a strict-liability crime, meaning that the

mental intent of the defendant is not important.”); see also Brooks, 841

F.2d at 269 (explaining that “[s]tatutory rape in sum has been and is a rec-

ognized judicial exception to the general principle that mistake of fact is

a defense if it negatives the existence of a mental state essential to the

crime charged” (internal quotation marks omitted)); Catherine L. Carpen-

ter, On Statutory Rape, Strict Liability, and the Public Welfare Offense

Model, 53 Am. U. L. Rev. 313, 317, 385-91 (2003) (stating that “most

states have concluded that statutory rape is a strict liability offense”

(emphasis added)).

UNITED STATES v. GOMEZ-MENDEZ 5661

statutory elements of the offense . . . .”). Assuming, without

deciding, that Taylor also requires that a state crime incorpo-

rate 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 def-

inition 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.

3

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 pro-

miscuity defense. He cites no jurisdiction, and we are aware

of none, that retains a promiscuity defense to a charge of stat-

utory rape.

4

Gomez-Mendez also argues that Cal. Penal Code

§ 261.5(d) is overbroad according to our decision in Corona-

Sanchez, 291 F.3d at 1207-08, because a conviction under that

statute could be based on aiding and abetting, or accessorial

liability. In Corona-Sanchez, we explained that “[u]nder Cali-

fornia law, aiding and abetting liability is quite broad, extend-

ing even to promotion and instigation.” 291 F.3d at 1207-08.

Thus, we held in Corona-Sanchez that a conviction for the

petty theft of cigarettes and beer under Cal. Penal Code § 484,

which could have followed from aiding and abetting liability,

does not constitute an “aggravated felony” under 8 U.S.C.

§ 1101(a)(43)(G) because that statute criminalized conduct

5662 UNITED STATES v. GOMEZ-MENDEZ

that would not constitute a theft offense under federal sen-

tencing law. 291 F.3d at 1207-08.

[6] Like all other states and the federal government, Cali-

fornia has expressly abrogated the common law distinction

among principals, “aiders and abettors present at the scene of

the crime” (i.e., second-degree principals), and “aiders and

abettors who helped the principal before the basic criminal

event took place” (i.e., accessories before the fact). Gonzales

v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007); see also Cal.

Penal Code §§ 31, 971; People v. Mitten, 112 Cal. Rptr. 713,

715 (1974). Thus, under California law Gomez-Mendez could

indeed have been convicted for statutory rape under Cal.

Penal Code § 261.5(d) as a principal, as an aider and abettor

present at the scene of the crime, or as an accessory before the

fact.

[7] Gomez-Mendez’s reliance on Corona-Sanchez, how-

ever, is misplaced because that case was decided under Sen-

tencing Guidelines that have since been amended. Unlike the

1997 version of U.S.S.G. § 2L1.2 we construed in Corona-

Sanchez, the amended version of the application notes accom-

panying that section now expressly provide that “[p]rior con-

victions of offenses counted under Subsection (b)(1) include

the offenses of aiding and abetting, conspiring, and attempt-

ing, to commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5; see

also Guerrero-Velasquez, 434 F.3d at 1196 (recognizing that

Corona-Sanchez was superseded by U.S.S.G. § 2L1.2 cmt.

n.5). Moreover, the Supreme Court’s recent decision in

Duenas-Alvarez, 127 S. Ct. 815, supports our conclusion.

There, the Court held in the immigration context that, because

“criminal law now uniformly treats” principals, second-

degree principals, and accessories before the fact alike, “the

criminal activities of these aiders and abettors of a generic

theft must themselves fall within the scope of the term ‘theft’

in the federal statute.” Id. at 820. Thus, Gomez-Mendez’s

argument that Cal. Penal Code § 261.5(d) is overbroad

because a defendant could be convicted of statutory rape for

UNITED STATES v. GOMEZ-MENDEZ 5663

aiding and abetting or for participating as an accessory before

the fact is unpersuasive.

[8] Finally, a conviction for statutory rape under § 261.5(d)

does not run afoul of our decision in United States v. Innie,

7 F.3d 840 (9th Cir. 1993). In that case, we held that “the

offense of being an accessory after the fact is clearly different

from aiding and abetting” and therefore that a conviction as

an accessory after the fact to murder for hire was not a crime

of violence under the Sentencing Guidelines. Id. at 852-53.

Acting as an accessory after the fact to statutory rape, how-

ever, is punishable not as statutory rape under Cal. Penal

Code § 261.5(d), but as a separate and distinct criminal

offense under Cal. Penal Code § 32. People v. Prado, 136

Cal. Rptr. 521, 523-24 (1977); Mitten, 112 Cal. Rptr. at 715.

Accordingly, a prior conviction under Cal. Penal Code

§ 261.5(d) could not be based on liability for acting as an

accessory after the fact.

III

[9] There is one other related sentencing issue to be

resolved. Gomez-Mendez claims that the district court erred

by increasing his sentence based on a prior conviction that

was not alleged in the indictment, proven beyond a reasonable

doubt to a jury, or admitted at the time of the guilty plea.

Aliens who return to the United States after removal and with-

out permission are subject to two years incarceration pursuant

to 8 U.S.C. § 1326(a). Under 8 U.S.C. § 1326(b)(2), a prison

term of up to twenty years may be imposed for aliens “whose

[prior] removal was subsequent to a conviction for commis-

sion of an aggravated felony.” In Almendarez-Torres v.

United States, 523 U.S. 224 (1998), the Supreme Court con-

cluded that 8 U.S.C. § 1326(b) “simply authorizes a court to

increase the sentence for a recidivist . . . [and] does not define

a separate crime” and therefore held that a prior conviction

need not be charged in the indictment and proved beyond a

reasonable doubt. Id. at 226-27.

5664 UNITED STATES v. GOMEZ-MENDEZ

[10] Gomez-Mendez asserts that according to principles of

statutory construction, a prior conviction is an element of the

offense under the current version of 18 U.S.C. § 1326(b)(2),

rather than a sentencing factor, because a 1996 amendment

changed the structure of that section and added a title to sub-

section (b). But 18 U.S.C. § 1326(b)(2), the provision consid-

ered in Almendarez-Torres and at issue in this case, remains

virtually unchanged after the 1996 amendment.9 We do not

believe that the 1996 amendment transformed subsection

(b)(2) from a sentencing factor, as the Supreme Court held in

Almendarez-Torres, to a new criminal offense, as Gomez-

Mendez claims, simply because that amendment modified the

title of subsection (b) and added subsections (b)(3) and (b)(4).

In the pith of his claim, Gomez-Mendez essentially argues

that we are no longer bound by the Supreme Court’s holding

in Almendarez-Torres, because it interpreted a prior version

of 18 U.S.C. § 1326. We have repeatedly rejected the argu-

ment that Almendarez-Torres is no longer good law and have

held that the current version of 18 U.S.C. § 1326(b)(2) consti-

tutes a sentencing factor under Almendarez-Torres. See, e.g.,

United States v. Ochoa-Gaytan, 265 F.3d 837, 840 n.1, 845-

46 (9th Cir. 2001); United States v. Pacheco-Zepeda, 234

F.3d 411, 413-14 (9th Cir.), cert. denied, 532 U.S. 966 (2001).10

9

The 1996 amendment to subsection (b)(2) simply replaced the term

“deportation” with “removal” to reflect new terminology introduced by

Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.

No. 104-208, § 309(d)(2), 110 Stat. 3009, 3009-627 (1996). We have held

that “any distinction between deportation and removal is legally insignifi-

cant for purposes of § 1326.” United States v. Lopez-Gonzalez, 183 F.3d

933, 935 (9th Cir. 1999). The subsection is otherwise identical to the lan-

guage considered in Almendarez-Torres.

10

Gomez-Mendez filed a letter of supplemental authorities under Fed.

R. App. 28(j) contending that the district court committed Apprendi error

by enhancing his sentence based on his prior removal, a fact which was

never admitted nor proven to a jury beyond a reasonable doubt. See United

States v. Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006). But he

has not properly raised this issue. In the 39-page opening brief filed by his

counsel, Gomez-Mendez’s only reference to the district court’s finding of

UNITED STATES v. GOMEZ-MENDEZ 5665

IV

[11] Finally, we consider Gomez-Mendez’s argument that

the district court erred in failing to apply an additional one-

level reduction for timely acceptance of responsibility under

U.S.S.G. § 3E1.1(b)11 because the government improperly

refused to file a motion under that provision. The district

court expressly refused to make a finding whether the govern-

a subsequent removal appeared in a footnote, which states: “[S]ections

1326(b)(1) and (2) do not simply require a finding that a defendant suf-

fered a prior conviction. There must also be a finding that the conviction

was before the defendant’s deportation and that it falls into a certain cate-

gory: (1) a misdemeanor involving drugs or crimes against the person; (2)

a felony; or (3) an aggravated felony.” Gomez-Mendez did not enumerate

this as a separate claim. Indeed, he made no effort whatsoever to connect

this general observation about the law to the facts of his case. See Officers

for Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726 (9th Cir. 1992) (“We

will not ordinarily consider matters on appeal that are not specifically and

distinctly raised and argued in appellant’s opening brief.”) (internal quota-

tion marks and alteration omitted)).

Moreover, an issue raised for the first time in a letter of supplemental

authorities under Fed. R. App. 28(j) is ordinarily deemed waived. See,

e.g., Pawlyk v. Wood, 248 F.3d 815, 821-22 n.5 (9th Cir. 2001) (holding

that an attempt to raise an issue “by submitting a supplemental citation,

pursuant to Federal Rule of Appellate Procedure 28(j) . . . . is too late; the

issue is waived”). There is an exception to this rule when failure to con-

sider an issue first raised in a 28(j) letter would result in “substantial ineq-

uity.” United States v. Sterner, 23 F.3d 250, 252 n.3 (9th Cir. 1994),

overruled on other grounds by United States v. Keys, 95 F.3d 874, 879 n.6

(9th Cir. 1997). Gomez-Mendez has failed to meet that standard.

11

U.S.S.G. § 3E1.1(a) requires a sentencing court to reduce by two

levels the offense level of a defendant who “clearly demonstrates accep-

tance of responsibility for his offense.” Under U.S.S.G. § 3E1.1(b), a

defendant whose offense level is 16 or greater prior to the adjustment

authorized by U.S.S.G. § 3E1.1(a) could receive an additional one-level

reduction “upon motion of the government stating that the defendant has

assisted authorities . . . by timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the government to avoid prepar-

ing for trial and permitting the government and the court to allocate their

resources efficiently.”

5666 UNITED STATES v. GOMEZ-MENDEZ

ment improperly declined to file the motion. We have recently

held that the government cannot refuse to file a motion under

this provision “on the basis of an unconstitutional motive

(e.g., racial discrimination), or arbitrarily (i.e., for reasons not

rationally related to any legitimate governmental interest).”

Espinoza-Cano, 456 F.3d at 1136 (internal quotation marks

omitted). In its brief, the government concedes that remand is

appropriate on this issue. We agree and remand this case to

the district court to determine under Espinoza-Cano whether

the government refused to file the motion for an additional

one-level reduction arbitrarily or on the basis of an unconsti-

tutional motive.

V

Thus, we affirm the district court’s determination that

Gomez-Mendez’s prior conviction for unlawful sexual inter-

course by a person at least twenty-one years old with a minor

under sixteen years old under Cal. Penal Code § 261.5(d)

qualifies as a “crime of violence” under U.S.S.G. § 2L1.2(b)

(1)(A)(ii). We further conclude that the district court did not

err in increasing Gomez-Mendez’s sentence under 18 U.S.C.

§ 1326(b)(2). We remand this case to the district court for fur-

ther proceedings to determine whether the government

improperly refused to file a motion under U.S.S.G.

§ 3E1.1(b).

AFFIRMED IN PART AND REMANDED IN PART.