United States v. Bertan-Manguia

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-30118

v.

 D.C. No.

CR-05-00169-LRS

CANDELARIO SILVESTRE BELTRAN-

MUNGUIA, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

Argued and Submitted

November 14, 2006—Seattle, Washington

Filed June 7, 2007

Before: Pamela Ann Rymer, Marsha S. Berzon, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Rymer;

Concurrence by Judge Tallman

6873

UNITED STATES v. BELTRAN-MUNGUIA 6877

COUNSEL

Kathleen Moran, Federal Defenders of Eastern Washington &

Idaho, Spokane, Washington, for the defendant-appellant.

James A. McDevitt, Acting United States Attorney for the

Eastern District of Washington, Spokane, Washington;

Pamela J. Byerly, Assistant United States Attorney, Spokane,

Washington, for the plaintiff-appellee.

OPINION

BERZON, Circuit Judge:

Candelario Silvestre Beltran-Munguia pleaded guilty, under

8 U.S.C. § 1326, to unlawful reentry into the United States.

Sentences for that offense are governed by United States Sen-

tencing Guideline § 2L1.2. This case presents the question

whether a prior felony conviction under Oregon Revised Stat-

ute (ORS) section 163.425 for sexual abuse in the second

degree qualifies as a “crime of violence” for purposes of that

guideline. We hold that it does not, both because the state

statute does not make force — be it used, attempted, or threat-

ened — an element of the crime and because the crime does

not constitute a “forcible sex offense” within the meaning of

the applicable guideline. Because the district court concluded

otherwise, we vacate Beltran-Munguia’s sentence and remand

for resentencing.

Beltran-Munguia also contends that his sentence violates

his Fifth and Sixth Amendment rights because the district

judge found facts about his prior conviction that allowed him

to increase his sentence beyond the two-year maximum

allowed under 8 U.S.C. § 1326(a). This argument is fore-

closed by Supreme Court and Ninth Circuit precedents.

6878 UNITED STATES v. BELTRAN-MUNGUIA

I

The base offense level for a violation of § 1326 is eight.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a). Where the

defendant was previously deported after being convicted of a

felony that constitutes a “crime of violence,” the offense level

goes up by sixteen levels. Id. § 2L1.2(b)(1)(A)(ii).

The presentence report (“PSR”) on Beltran-Munguia noted

that he had been previously convicted for sexual abuse in the

second-degree under ORS section 163.425 and recommended

that the district court impose the sixteen-level enhancement

on the basis of that conviction. Beltran-Munguia objected to

this recommendation, arguing that his prior conviction did not

constitute a “crime of violence” as defined for purposes of

§ 2L1.2(b)(1)(A)(ii), because the Oregon statute criminalizes

nonconsensual sex and can be committed without the use of

force. The district court disagreed, increased Beltran-

Munguia’s offense level by the recommended sixteen levels,

and sentenced him to a 57-month prison term. Beltran-

Munguia timely appealed.1

1

The Sentencing Guidelines are, of course, now advisory rather than

mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005). This

court has twice suggested that there are circumstances in which determin-

ing the precise Guidelines sentence may be more complicated than it is

worth, and so may not be required. See United States v. Jennings, 439 F.3d

604, 606 n.3 (9th Cir. 2006); United States v. Cantrell, 433 F.3d 1269,

1279 n.3 (9th Cir. 2006); see also United States v. Crosby, 397 F.3d 103,

112 (2d Cir. 2005) (noting situations where “precise calculation of the

applicable Guidelines range may not be necessary”), abrogation on other

grounds recognized by United States v. Lake, 419 F.3d 111, 113 n.2 (2d

Cir. 2005). We leave that possibility open again. Here, however, the dis-

trict court did not follow that procedure but calculated a specific Guideline

level and then followed it. We therefore review the Guideline determina-

tion made and followed by the district court, in accord with our post-

Booker precedents. See, e.g., United States v. Gonzalez-Perez, 472 F.3d

1158, 1159 (9th Cir. 2007); United States v. Baza-Martinez, 464 F.3d

1010, 1013 (9th Cir. 2006).

UNITED STATES v. BELTRAN-MUNGUIA 6879

We review de novo the district court’s decision that a

defendant’s prior conviction qualifies for a sentencing

enhancement under U.S.S.G. § 2L1.2(b). See United States v.

Gonzalez-Perez, 472 F.3d 1158, 1159 (9th Cir. 2007).

II

For the purpose of § 2L1.2(b)(1)(A)(ii), a “crime of vio-

lence” is defined as:

any of the following: murder, manslaughter, kidnap-

ping, aggravated assault, forcible sex offenses, statu-

tory 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. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii)

(emphases added). Applying this definition, second-degree

sexual abuse in Oregon constitutes a “crime of violence” only

if: (1) the crime qualifies as a “forcible sex offense,” a term

left undefined by the guidelines; or (2) conviction of the crime

requires proof of “the use, attempted use, or threatened use of

physical force against the person of another.”2

A

We begin with the latter possibility.

[1] In Taylor v. United States, 495 U.S. 575, 600-02 (1990),

the Supreme Court instructed that in determining whether a

2

Because ORS section 163.425 makes no mention of the age of the vic-

tim, it is clear from the face of the statute that second-degree sexual abuse

cannot be categorically classified as “sexual abuse of a minor” or “statu-

tory rape.”

6880 UNITED STATES v. BELTRAN-MUNGUIA

prior conviction meets the requirements of a federal recidi-

vism provision, courts should ordinarily look only to the cov-

erage of the statute of conviction and not to the specific

conduct involved in the defendant’s conviction. This exami-

nation is necessarily limited to “the elements of the crimes of

which the defendant was previously convicted.” United States

v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). To constitute an

“element” of a crime, the particular factor in question needs

to be “a ‘constituent part’ of the offense [that] must be proved

by the prosecution in every case to sustain a conviction under

a given statute.” United States v. Hasan, 983 F.2d 150, 151

(9th Cir. 1992) (per curiam) (internal quotation marks omit-

ted).

[2] A plain reading of ORS section 163.425 makes clear

that force — used, attempted, or threatened — is decidedly

not an “element” of the crime of second-degree sexual abuse

in Oregon. Instead, the victim’s lack of consent is the crime’s

defining characteristic.

Specifically, under the state statute,

[a] person commits the crime of sexual abuse in the

second degree when that person subjects another

person to sexual intercourse, deviate sexual inter-

course, or . . . penetration of the vagina, anus or

penis with any object other than the penis or mouth

of the actor and the victim does not consent thereto.

OR. REV. STAT. § 163.425(1) (emphasis added). Thus, the gov-

ernment bears no burden of proving force extrinsic to the act

of penetration. By comparison, when prosecuting a defendant

for either rape in the first degree or sexual abuse in the first

degree under ORS sections 163.375(1)(a) and

163.427(1)(a)(B), respectively, the state bears the burden of

proving that the victim was “subjected to forcible compul-

sion.” Id. §§ 163.375(1)(a), 163.427(1)(a)(B) (emphasis

added).

UNITED STATES v. BELTRAN-MUNGUIA 6881

That the same “forcible compulsion” requirement does not

apply to second-degree sexual abuse is evident not only from

the language of ORS section 163.425 but also from its legisla-

tive history. That history makes clear that ORS section

163.425 was enacted to fill a specific “omission” in the Ore-

gon criminal code — namely, the failure to make criminal

“subject[ing] another to sexual intercourse without the vic-

tim’s consent — but not by forcible compulsion.” See State

v. Stamper, 106 P.3d 172, 177-78 (Or. Ct. App.) (discussing

a 1983 amendment to Oregon’s second degree sexual abuse

statute), review denied, 119 P.3d 790 (Or. 2005).3

That force, actual or inchoate, is not a required element of

ORS section 163.425 is further corroborated by the Oregon

appellate decisions that have interpreted the statute. Those

decisions make clear that a defendant can be convicted of

second-degree sexual abuse where the victim professed con-

sent but was legally incapable of giving it. See id. at 179;

State v. Mezick, 820 P.2d 849, 850 (Or. Ct. App. 1991); State

v. Landino, 590 P.2d 737, 739 (Or. Ct. App. 1979).

ORS section 163.315 delineates four types of legal incapac-

ity that apply to all sexual offenses listed in the Oregon crimi-

nal code, including second-degree sexual abuse. See OR. REV.

STAT. § 163.315; Landino, 590 P.2d at 739 (“That all four

types of legal incapacity set out in ORS 163.315 were

intended to apply to all sexual offenses is clear.”):4 Under

ORS section 163.315(1):

3

The original second-degree sexual abuse statute was adopted in 1971,

but treated the offense as only a Class A misdemeanor. See OR. REV. STAT.

§ 163.415 (1971). In 1983, the statute was codified as section 163.425 and

reclassified as a Class C felony. We note that Oregon now also criminal-

izes this exact “omission” as rape in the first degree. See OR. REV. STAT.

§ 163.375(1)(d).

4

Landino interpreted an earlier version of Oregon’s second-degree sex-

ual abuse statute, codified as ORS section 163.415, which defined the

offense, in relevant part, as follows:

6882 UNITED STATES v. BELTRAN-MUNGUIA

A person is considered incapable of consenting to a

sexual act if the person is:

(a) Under 18 years of age;

(b) Mentally defective;

(c) Mentally incapacitated; or

(d) Physically helpless.

OR. REV. STAT. § 163.315(1). ORS section 163.305, in turn,

defines the terms “mentally defective,” “mentally incapacitat-

ed,” and “physically helpless.” Id. § 163.305(3)-(5). To be

“mentally defective,” for example, “means that a person suf-

fers from a mental disease or defect that renders [her] incapa-

ble of appraising the nature of the conduct of the person.” Id.

§ 163.305(3). To be “mentally incapacitated,” the victim must

have been

rendered incapable of appraising or controlling the

conduct of the person at the time of the alleged

A person commits the crime of sexual abuse in the second degree

if he subjects another person to sexual contact; and

(a) The victim does not consent to the sexual contact; or

(b) The victim is incapable of consent by reason of being

mentally defective, mentally incapacitated or physically

helpless.

OR. REV. STAT. § 163.415(1) (1971). The current version of Oregon’s

second-degree sexual abuse statute, codified as ORS section 163.425, con-

tains a more specific definition of the type of “sexual contact” at issue and

has also replaced subparts (a) and (b) with the general language “the vic-

tim does not consent thereto.” Despite this change, Landino remains good

law, and the new language regarding consent still encompasses the four

categories of legal incapacity listed in section 163.315. See Stamper, 106

P.3d at 176.

UNITED STATES v. BELTRAN-MUNGUIA 6883

offense because of the influence of a controlled or

other intoxicating substance administered to the per-

son without the consent of the person or because of

any other act committed upon the person without

[her] consent.

Id. § 163.305(4). Finally, to be “physically helpless,” the vic-

tim must have been “unconscious or for any other reason

[was] physically unable to communicate unwillingness to an

act.” Id. § 163.305(5).

Given the applicability of ORS section 163.315 to ORS

section 163.425, a perpetrator could commit second-degree

sexual abuse by surreptitiously adding to his victim’s drink a

drug that affects one’s judgment, thereby rendering her “men-

tally incapacitated.” She would then be legally incapable of

consent even if she participated fully in the sex act. Similarly,

the victim could be “mentally defective,” yet fully physically

cooperative. Under both those circumstances, a perpetrator

would not necessarily have to use, attempt to use, or threaten

to use any force above and beyond the force inherent in the

act of penetration, see infra pp. 6885, to commit second-

degree sexual abuse. In other words, under such circum-

stances, a perpetrator would not have categorically committed

a “crime of violence,” as the term is defined for purposes of

§ 2L1.2(b)(1)(A)(ii).

[3] To be sure, a victim of second-degree sexual abuse

could, in reality, have been subjected to force during the com-

mission of the crime. In defining the term “without [her] con-

sent,” the Oregon state legislature included not only victims

“considered to be incapable of consenting as a matter of law,”

but also victims who were “forcibly compelled to submit” and

victims who did “not acquiesce in the actor’s conduct.”

Stamper, 106 P.3d at 176 (citing to the Commentary to Crimi-

nal Law Revision Commission Proposed Oregon Criminal

Code, Final Draft and Report §§ 105, 106 (July 1971)). But

the possibility that extrinsic force was used in some fashion

6884 UNITED STATES v. BELTRAN-MUNGUIA

in the commission of the crime does not make it an essential

“element” of second-degree sexual abuse. Put another way,

even if a defendant did use force to commit his offense, the

prosecution bore no burden to prove that fact, as the govern-

ment could establish lack of consent in some other fashion.

Absent such a burden, this portion of § 2L1.2(b)(1)(A)(ii)’s

“crime of violence” definition does not categorically apply.

B

[4] The government argues otherwise, and in so doing,

claims support in this circuit’s case law. We do not agree that

our precedents support the proposition that

§ 2L1.2(b)(1)(A)(ii) applies where it is possible that force will

be used to accomplish the sex crime but the prosecution need

not prove that it was.

United States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir.

2002), for example, involved a markedly different question

than the one presented here. There, the court was charged

with determining whether third-degree rape, as defined under

Washington law, constituted an “aggravated felony” under

§ 2L1.2. Id. at 992. Like the Oregon statute at issue here, the

Washington statute in Yanez-Saucedo criminalizes noncon-

sensual sex.5 Id. at 992, 995. Unlike the “crime of violence”

definition used for purposes of § 2L1.2(b)(1)(A)(ii), however,

an aggravated felony, under the same guideline, is defined as

including “rape,” in general. Id. at 993-94. In holding that

third-degree rape constituted an aggravated felony, Yanez-

Saucedo concluded only that that particular crime “fit[ ]

within a generic, contemporary definition of rape, which can,

5

Under Washington Revised Code section 9A.44.060(1), a person is

guilty of third-degree rape if he engaged in sexual intercourse: “(a)

[w]here the victim did not consent . . . and such lack of consent was

clearly expressed by the victim’s words or conduct, or (b) [w]here there

is threat of substantial unlawful harm to property rights of the victim.”

WASH. REV. CODE § 9A.44.060(1).

UNITED STATES v. BELTRAN-MUNGUIA 6885

but does not necessarily, include an element of physical force

beyond that required for penetration.” Id. at 996 (emphasis

added). In other words, far from indicating that nonconsensual

sex necessarily involves the use or threatened use of force as

an element of the crime, Yanez-Saucedo held only that “rape”

— which is an “aggravated felony,” but not a per se “crime

of violence” — need not include any such element.

[5] As the careful wording of Yanez-Saucedo indicates, this

circuit has never held that a sex crime can be considered to

require the “use of force,” as an element of the crime, simply

because it involves the act of penetration. While we have

never expressly ruled out that possibility, the majority of other

circuits have. See United States v. Sarmiento-Funes, 374 F.3d

336, 340 (5th Cir. 2004) (rejecting that “the act of penetration

itself is enough to supply the force required under § 2L1.2”);

United States v. Meader, 118 F.3d 876, 881-82 (1st Cir. 1997)

(concluding that a statutory rape offense did not involve the

“use of force,” within the meaning of U.S.S.G. § 4B1.2, even

though penetration was involved in the crime); United States

v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc)

(same); but see United States v. Ivory, 475 F.3d 1232, 1236

(11th Cir. 2007) (concluding that a state offense was a cate-

gorical match for § 4B1.2(a)(1) because the “nonconsensual

act of sexual penetration by its nature involves at least some

level of physical force and pressure directed against another

person’s body”). While the Eleventh Circuit’s approach may

have common sense appeal, it does not satisfy the statutory

requirement that an “element” of the crime involve “the use,

attempted use, or threatened use of physical force against the

person of another.” See Hasan, 983 F.2d at 151 (explaining

that an “element” must be a “constituent part of the offense”

(internal quotations omitted) (emphasis added)).6

6

In addition, the Eleventh Circuit case law that underlies Ivory has

evolved differently than similar case law in our circuit. Compare Ivory,

475 F.3d at 1235 (explaining that, under Eleventh Circuit precedent, the

crime of “simple battery” has “as an element, the use or attempted use of

6886 UNITED STATES v. BELTRAN-MUNGUIA

Like in Yanez-Saucedo, in Castro-Baez v. Reno, 217 F.3d

1057 (9th Cir. 2000), it was also unnecessary to find force as

a requisite element of the prior conviction. There, we were

asked to decide whether a defendant’s prior rape conviction

under California Penal Code section 261(a)(3) qualified as an

“aggravated felony” within the meaning of § 101(a)(43)(A) of

the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(A). Id. at 1058. California defines “rape” for

purposes of section 261(a)(3) as including “an act of sexual

intercourse” accomplished “[w]here a person is prevented

from resisting by any intoxicating or anesthetic substance, or

any controlled substance, and this condition was known, or

reasonably should have been known by the accused.” Id. at

1059 (alteration in original) (quoting CAL. PENAL CODE

§ 261(a)(3)) (internal quotation marks omitted). We explained

in Castro-Baez that “[i]n ordinary usage, rape is understood

to include the act of engaging in non-consensual sexual inter-

course with a person whose ability to resist has been substan-

tially impaired by drugs or other intoxicants.” Id.; see also id.

(citing the Black’s Law Dictionary definition of rape as an

“act of sexual intercourse committed by a man with a woman

not his wife and without her consent, committed when the

woman’s resistance is overcome by force or fear, or under

other prohibitive conditions” (emphases added)). A prior con-

viction for rape under California Penal Code section 261(a)(3)

physical force” because it involves “physical contact of an insulting or

provoking nature”), with Ortega-Mendez v. Gonzales, 450 F.3d 1010,

1017-18 (9th Cir. 2006) (explaining that “[w]e have held that conduct

involving mere offensive touching does not rise to the level of a ‘crime of

violence,’ ” and that, as a result, a prior conviction for battery cannot be

considered a crime of violence, within the meaning of 18 U.S.C. § 16),

and id. at 1016-18 (citing a series of Ninth Circuit cases for the proposi-

tion that battery, as criminalized under various state statutes, cannot be a

categorical “crime of violence”), and id. at 1016 (explaining that “we have

‘squarely held that the force necessary to be a crime of violence [under 18

U.S.C. § 16(a)] must actually be violent in nature’ ” (citing Singh v. Gon-

zales, 386 F.3d 1228, 1233 (9th Cir. 2004) (internal quotation marks omit-

ted))).

UNITED STATES v. BELTRAN-MUNGUIA 6887

therefore qualified as “rape” and thus as an “aggravated felo-

ny” under the immigration statute. Id. Like Yanez-Saucedo,

then, Castro-Baez held only that a sexual offense that covers

nonconsensual sexual intercourse can be “rape” for purposes

of federal provisions using that term.

United States v. Cortez-Arias, 403 F.3d 1111 (9th Cir.

2005), is also inapplicable here, albeit for a different reason.

Cortez-Arias held that the “threatened use of physical force

against the person of another” portion of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii)’s “crime of violence” definition inher-

ently encompasses “acts that communicate to another person

an intent to use physical force against that person and acts

suggesting that physical force against that person may be

impending.” Id. at 1116. The Oregon second-degree sexual

abuse statute does not establish as a required element such

communicative or suggestive acts. See also United States v.

Anderson, 989 F.2d 310, 311 (9th Cir. 1993) (holding that

where a “ ‘violent felony’ includes any crime that ‘has as an

element the use, attempted use, or threatened use of physical

force against the person of another,’ ” “[a] threat of force

against a person is an element of a crime only if the crime

must involve a threat of force” (emphasis omitted) (quoting

18 U.S.C. § 924(e)(2)(B)(i))).

Finally, United States v. Riley, 183 F.3d 1155 (9th Cir.

1999), does not support the government’s submission either.

Riley concerned a prior conviction under Louisiana’s “simple

rape” statute — a statute that, much like ORS section

163.425, criminalizes nonconsensual, but not necessarily

forceful, sexual intercourse. See id. at 1157 n.2 (quoting LA.

REV. STAT. ANN. § 14:43 (1998)). Riley, however, involved a

separate Sentencing Guideline from the one at issue here —

namely, § 4B1.2, which defines “crime of violence” in materi-

ally different terms than § 2L1.2.

Under § 4B1.2(a), a “crime of violence” is a federal or state

felony that:

6888 UNITED STATES v. BELTRAN-MUNGUIA

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (emphases

added). Although the first part of this definition mirrors some

of the language used in the commentary to

§ 2L1.2(b)(1)(A)(ii), the second part of the definition — in

particular, the words “otherwise involves conduct that pre-

sents a serious potential risk of physical injury to another” —

are unique to § 4B1.2. It was those words that Riley relied

upon when it held that “simple rape” constituted a crime of

violence, emphasizing the potential risk of violence inherent

in all sexual crimes. See 183 F.3d at 1157-58.

Because § 4B1.2 contains the “serious potential risk of

physical injury” catchall provision not applicable to

§ 2L1.2(b)(1)(A), Riley does not control our outcome. Cortez-

Arias dictates this conclusion, as it declined to transfer to the

§ 2L1.2(b)(1)(A) context a holding premised on the “serious

risk” language in § 4B1.2(a):

Cortez-Arias received a sentencing enhancement

under USSG § 2L1.2. The commentary to that sec-

tion defines a “crime of violence” somewhat differ-

ently than does § 4B1.2(a) . . . . Neither [§ 2L1.2]

nor its commentary in explicit words refer to crimes

that “involve conduct that presents a serious risk of

physical injury to another.”

Accordingly, we conclude that . . . [a case] holding

that California Penal Code section 246 is a “crime of

violence” [for purposes of § 4B1.2] because it

UNITED STATES v. BELTRAN-MUNGUIA 6889

involves conduct that presents a serious risk of phys-

ical injury to another does not necessarily resolve the

question of whether the same offense is a “crime of

violence” for purposes of USSG § 2L1.2.

403 F.3d at 1114 (citing United States v. Weinert, 1 F.3d 889

(9th Cir. 1993) (per curiam)); see also United States v. Pax-

ton, 422 F.3d 1203, 1206 (10th Cir. 2005) (explaining that, as

a result of the difference between §§ 4B1.2 and 2L1.2, an

offense that is not a crime of violence under § 2L1.2 because

it “lack[s] the use of physical force as an element” can none-

theless be a crime of violence under § 4B1.2 “because of an

inherent risk of physical injury”), cert. denied, 126 S. Ct.

1403 (2006); United States v. Jaimes-Jaimes, 406 F.3d 845,

849-50 (7th Cir. 2005) (explaining that “ ‘crime of violence’

is defined more narrowly in § 2L1.2 than in other contexts

because the definition does not encompass acts . . . that

merely pose a risk of harm to another person”).

[6] There are cases in our circuit containing language

which, taken out of context, can be read to suggest that the

phrase “crime of violence” must be interpreted to carry the

same meaning throughout the guidelines, even when the

defining language in particular guidelines differs. See, e.g.,

United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th

Cir. 2003) (writing that “there is no indication that the term

[‘crime of violence’] is intended to mean something different

for [one] provision than it does elsewhere”); United States v.

Granbois, 376 F.3d 993, 996 (9th Cir. 2004) (same). Pereira-

Salmeron and Granbois, however, do not equate § 4B1.2’s

“serious potential risk of physical injury” prong with

§ 2L1.2’s “force as an element of the crime” prong, but

instead equate only the per se crimes of violence aspects of

the two definitions. See Pereira-Salmeron, 337 F.3d at 1154

(noting, after discussing in dicta the results reached under the

catchall provision of another guideline, that “[t]he specific

issue before us is whether Pereira-Salmeron’s conviction . . .

falls within the category of ‘sexual abuse of a minor,’ ” a per

6890 UNITED STATES v. BELTRAN-MUNGUIA

se category); Granbois, 376 F.3d at 995 (noting that Pereira-

Salmeron “explained that crimes involving the sexual abuse

of a minor are per se ‘crimes of violence,’ ” and following

that holding while declining to consider the application of the

“serious risk of physical injury” catchall provision in

§ 4B1.2); United States v. Asberry, 394 F.3d 712, 716 (9th

Cir. 2005) (stating that “[i]n Granbois, we held in the context

of interpreting ‘sexual abuse of a minor’ that ‘there is no indi-

cation that [“crime of violence”] is intended to mean some-

thing different’ in section 4B1.2 than it does in section 2L1.2”

(second alteration in original) (emphasis added) (quoting

Granbois, 376 F.3d at 996)). Because these cases did not con-

cern the application of § 4B1.2’s catchall “serious risk” lan-

guage to § 2L1.2, the controlling precedent for purposes of

this case is Cortez-Arias, which does concern precisely that

issue.

We note that the holding of Cortez-Arias is supported by

the fact that § 4B1.2(a) defines “crime of violence” under that

section as encompassing, in addition to the list of per se

crimes of violence, both offenses that “ha[ve] as an element

the use, attempted use, or threatened use of physical force

against the person of another,” and offenses that “otherwise

involve[ ] conduct that presents a serious potential risk of

physical injury to another,” while the definition applicable to

§ 2L1.2(b)(1)(A)(ii) contains only the former phrase. Com-

pare U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a), with

id. § 2L1.2 cmt. n.1(B)(iii). To equate the two sections even

though one has a phrase of some length entirely absent from

the other would violate established principles of construction

proscribing interpretations that assume mere surplusage. See,

e.g., United States v. Stevens, 462 F.3d 1169, 1171 (9th Cir.

2006); United States v. Wenner, 351 F.3d 969, 975 (9th Cir.

2003). Instead, it is evident that the catchall language of

§ 4B1.2 is broader than the catchall provision language appli-

cable to § 2L1.2.

Nor does Riley’s reliance on the words “serious potential

risk of physical injury to another” mean that second-degree

UNITED STATES v. BELTRAN-MUNGUIA 6891

sexual abuse in Oregon necessarily involves the “threatened

use of physical force.” In explicating what it meant by “risk,”

Riley reasoned that the act of rape, whether overtly forceful

or “merely” nonconsensual, always “creates an atmosphere

that fosters the potential for physical confrontation.” 183 F.3d

at 1159 (emphasis added) (explaining how, in cases involving

simple rape, “if the victim realize[s] at any point that the per-

petrator [is] not her husband or if the victim [comes] out of

her stupor, the situation could easily escalate into a violent

confrontation”). But the “threatened use” of physical force is

not the same as the “potential use” of physical force. “Threat-

ened use” for purposes of § 2L1.2(b)(1)(A)(ii) must be an ele-

ment of the crime, and denotes a specific communication,

explicit or implicit, by the defendant — a threat — not a risk

that may occur as a result of the action that constitutes the

offense.

****

[7] In short, because ORS section 163.425 of the Oregon

Revised Statutes does not make “the use, attempted use, or

threatened use of physical force” an element of the crime of

second-degree sexual abuse, Beltran-Munguia’s prior convic-

tion does not qualify as a “crime of violence” under this prong

of our § 2L1.2(b)(1)(A)(ii) analysis.

C

[8] Beltran-Munguia’s prior conviction does not qualify as

a “crime of violence” under § 2L1.2(b)(1)(A)(ii)’s “forcible

sex offenses” alternative either. Not surprisingly, given its

language, we have interpreted the phrase “forcible sex

offenses” as requiring the use of force, an interpretation that

precludes application to the Oregon crime here at issue.

[9] United States v. Lopez-Montanez, 421 F.3d 926 (9th

Cir. 2005), concerned whether a conviction under California’s

sexual battery statute, California Penal Code section 243.4(a),

6892 UNITED STATES v. BELTRAN-MUNGUIA

qualifies as a conviction for a “forcible sex offense” and

therefore as a conviction for a “crime of violence” under

§ 2L1.2. We held that it does not, because “under the Califor-

nia sexual battery statute, the touching may be ‘ephemeral,’

or committed without the use of force.” Id. at 929.7 In so hold-

ing, we relied on several other Ninth Circuit cases that require

some degree of force to label a crime “violent.” See id. (citing

Ye v. INS, 214 F.3d 1128 (9th Cir. 2000), for the proposition

that “the force necessary to constitute a crime of violence [ ]

must actually be violent in nature,” and Singh v. Ashcroft, 386

F.3d 1228 (9th Cir. 2004), as declining to make a conviction

under an Oregon harassment statute a categorical crime of

violence “because it did not involve the requisite use of force”

(alteration in original) (quoting Ye, 214 F.3d at 1133) (internal

quotation marks omitted)). While it recognized that other

cases in our circuit, like Pereira-Salmeron and Granbois, had

held that “sexual abuse of a minor” is a “crime of violence”

under § 2L1.2, Lopez-Montanez distinguished those cases by

concluding that “[n]either our case law nor the statute . . . sup-

ports the proposition that the commission of a ‘forcible sex

offense[ ]’ against an individual who is not a minor consti-

tutes a crime of violence if the statute of conviction does not

require the use of force.” Id. at 930 (alteration in original). It

thus “reject[ed] the government’s invitation to read out ‘forc-

ible’ from ‘forcible sex offenses.’ ” Id.8

7

Under the California statute:

Any person who touches an intimate part of another person while

that person is unlawfully restrained by the accused or an accom-

plice, 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).

8

The Third Circuit has concluded otherwise, holding that a “forcible sex

offense” does not require some “application of direct physical force.” See

United States v. Remoi, 404 F.3d 789, 794 (3d Cir.) (per curiam), cert.

denied 126 S. Ct. 467 (2005). We are, however, bound by Lopez-

Montanez. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en

banc) (holding that “a three-judge panel may not overrule a prior decision

of the court” unless the “prior decision . . . [has] been undercut by higher

authority to such an extent that it has been effectively overruled”).

UNITED STATES v. BELTRAN-MUNGUIA 6893

D

[10] Although we have already determined that sexual

abuse in the second degree does not categorically require the

use of force, under the modified categorical approach we sep-

arately consider whether any judicially noticeable facts show

that Beltran-Munguia was in fact convicted of committing

second-degree sexual abuse through the use of force. See

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

2001) (en banc); Lopez-Montanez, 421 F.3d at 931-32.9 Doing

so, we conclude that none of the additional documents exam-

ined by the sentencing judge — the charging document, the

judgment, the plea agreement, a court order for HIV testing,

and the notice of sex offender registration — establish that

Beltran-Munguia was convicted of a crime involving the use

of force.

[11] As a result, Beltran-Munguia’s conviction of second-

degree sexual abuse under Oregon law does not amount to a

“crime of violence” under the modified categorical approach.

III

Beltran-Munguia next argues that the district judge violated

his Fifth and Sixth Amendment rights by finding that his

deportation occurred “subsequent to” a prior conviction. We

reject this argument.10

9

We do not decide whether the modified categorical approach can be

used to decide if a prior conviction constitutes a “crime of violence” under

the provision that defines § 2L1.2(b)(1)(A)(ii) to include “any offense . . .

that has as an element the use, attempted use, or threatened use of physical

force against the person of another.” We have previously assumed both

that this approach does apply and that it does not. Compare United States

v. Martinez-Martinez, 468 F.3d 604, 613-14 (9th Cir. 2006), with United

States v. Piccolo, 441 F.3d 1084, 1086-86, 1088 n.7 (9th Cir. 2006). Given

that none of the available documents here make any mention of force, we

need not resolve this question today.

10

Although we vacate Beltran-Munguia’s current sentence, we reach

this claim because it is likely to be raised again if we do not. On remand,

6894 UNITED STATES v. BELTRAN-MUNGUIA

[12] Under recent Supreme Court and Ninth Circuit juris-

prudence, Almendarez-Torres v. United States, 523 U.S. 224

(1998), holding that the fact of a prior conviction need not be

proven to a jury beyond a reasonable doubt, remains good

law. So a judge may find the fact of a prior conviction —

including facts about that conviction apparent from the face

of the cognizable documents — to enhance a sentence. See

Booker, 543 U.S. at 244; Apprendi v. New Jersey, 530 U.S.

466, 489-90 (2000); United States v. Quintana-Quintana, 383

F.3d 1052, 1053 (9th Cir. 2004) (order); see also United

States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006)

(holding that nothing in two post-Apprendi Supreme Court

cases, Shepard v. United States, 544 U.S. 13 (2005), and

Dretke v. Haley, 541 U.S. 386 (2004), overrules Almendarez-

Torres).

[13] We have held, in contrast, that district courts do com-

mit Apprendi error by finding on its own both the fact of prior

removal and the fact of prior conviction. See United States v.

Zepeda-Martinez, 470 F.3d 909, 912-13 (9th Cir. 2006);

United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98

(9th Cir. 2006), cert. denied ___ S. Ct. ___ (2007). But in this

case, Beltran-Munguia admitted when pleading guilty that he

was removed from the United States “on or about April 8,

2005.” And the date of his prior conviction under ORS sec-

tion 163.425 — April 25, 2000 — was readily apparent from

several of the judicially noticeable documents available to the

district court. The district court could, therefore, readily con-

clude that Beltran-Munguia was removed “subsequent to” his

prior conviction, without making any factual findings not

apparent from the face of the conviction documents.

Almendarez-Torres is therefore binding on us in this case.

the district court will have to recalculate the appropriate guidelines level.

See Cantrell, 433 F.3d at 1280. In doing so, the question of reliance on

the sexual abuse in the second degree conviction will arise again, because

§ 2L1.2(b)(1)(C) allows for an eight-level increase where a prior convic-

tion constitutes an “aggravated felony.” U.S. SENTENCING GUIDELINES

MANUAL § 2L1.2(b)(1)(C).

UNITED STATES v. BELTRAN-MUNGUIA 6895

IV

[14] In conclusion, the sentencing judge erred when he

enhanced Beltran-Munguia’s sentence sixteen levels, under

§ 2L1.2(b)(1)(A)’s “crime of violence” provision. As a result,

we vacate Beltran-Munguia’s sentence and remand for resen-

tencing.

VACATED AND REMANDED.

RYMER, Circuit Judge, with whom Circuit Judge Tallman

joins, concurring:

If we were writing on a clean slate, I would hold that non-

consensual penetration falls within the plain meaning of

“physical force.” See United States v. Ivory, 475 F.3d 1232

(11th Cir. 2007).

TALLMAN, Circuit Judge, with whom Circuit Judge Rymer

joins, concurring:

I am bound by precedent to concur. I write separately, how-

ever, because of the injustice resulting from our precedents.

In our zeal to be good legal technicians, we are abandoning

the role of common sense in fashioning appropriate punish-

ment for repeat offenders like Beltran-Munguia. Our current

case law yields a result that minimizes a crime effected by

exploiting a victim’s helplessness. For purposes of a “crime

of violence” enhancement, I have conceptual difficulties char-

acterizing the “force” of physical penetration imposed on an

unwilling victim as different in kind from the physical force

imposed to overcome the victim’s unwillingness. From the

victim’s perspective, both acts are “violent” and surely non-

consensual. Nevertheless, I cannot say that the Oregon

6896 UNITED STATES v. BELTRAN-MUNGUIA

offense requires the prosecution to prove the use, attempted

use, or threatened use of physical force to sustain a convic-

tion. See United States v. Hasan, 983 F.2d 150, 151 (9th Cir.

1992).

Were I writing on a clean slate, I would hold that the Ore-

gon conviction categorically qualifies as a “crime of violence”

because it is a specifically enumerated offense—namely, a

“forcible sex offense.” In my view, a sex offense committed

against an unconscious victim is as much a “crime of vio-

lence” as a sex offense involving physical force committed

against a conscious victim. In both circumstances, the perpe-

trator commits an act against the victim’s will. The law pre-

sumes that were the victim competent and capable of giving

consent, she would not, and that she would resist the assault

as best she could.

Neither the Sentencing Guidelines nor their commentary

define “forcible sex offenses.” Were I not confined by United

States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. 2005), I

would interpret the undefined term—“forcible sex offenses”

—to encompass nonconsensual sex crimes. In “ordinary, con-

temporary, and common parlance,” United States v. Trinidad-

Aquino, 259 F.3d 1140, 1145 (9th Cir. 2001), “forcible”

denotes an act against a person’s will. “Forcible” should

encompass all acts undertaken against the victim’s will,

regardless of whether the perpetrator inflicts the assault by

physical force, threatens physical force, or cripples the vic-

tim’s ability to consent.

The Guidelines’ language and the Commission’s intent

compel this interpretation. “Forcible sex offenses,” like other

listed offenses—e.g., statutory rape, sexual abuse of a minor,

extortionate extension of credit, and burglary of a dwelling—

automatically qualify as “crimes of violence,” regardless of

whether force is an essential element. See United States v.

Pereira-Salmeron, 337 F.3d 1148, 1152 (9th Cir. 2003). The

Commission amended the Guidelines’ commentary in

UNITED STATES v. BELTRAN-MUNGUIA 6897

November 2003 to clarify that enumerated offenses need not

involve the actual use, attempted use, or threatened use of

physical force. See United States v. Asberry, 394 F.3d 712,

716 (9th Cir. 2005) (tracking evolving language of section

2L1.2 (citing U.S. Sentencing Commission, Guidelines Man-

ual app. C, amend. 658, Reason for Amend., 397-402 (2003)).

The Sentencing Commission selected certain offenses that

deserve treatment as crimes of violence per se, probably

because the selected crimes inherently pose an implicit

“threatened use of force.” Pereira-Salmeron, 337 F.3d at

1152. Furthermore, the Guidelines’ language “indicates the

Commission’s intent to cover crimes that involve an implicit

use of force or a substantial potential for violence.” Id. at

1153. Nonconsensual sex offenses fall within this category of

crimes. See United States v. Yanez-Saucedo, 295 F.3d 991,

995-96 (9th Cir. 2002) (rejecting the notion that rape absent

a forcible compulsion element lacks any degree of force);

United States v. Riley, 183 F.3d 1155, 1159 (9th Cir. 1999)

(likening simple rape—intercourse without the victim’s law-

ful consent—to crimes previously deemed inherently violent);

United States v. Ivory, 475 F.3d 1232, 1236 (11th Cir. 2007)

(recognizing that nonconsensual penetration “involves at least

some level of physical force and pressure directed against

another person’s body”); State v. Bashaw, 672 P.2d 48, 49

(Or. 1983) (considering rape a crime of “degradation as well

as violence”).

In addition to the Guidelines’ language and the Commis-

sion’s intent, a fundamental rule of statutory construction sup-

ports interpreting “forcible sex offenses” to encompass all sex

acts taken against a victim’s will. Specifically, courts should

not interpret one provision in a way that renders another part

of the same statute superfluous. United States v. Fish, 368

F.3d 1200, 1205 (9th Cir. 2004). Along these lines, “ ‘no defi-

nition should be completely subsumed within another.’ ”

United States v. Stevens, 462 F.3d 1169, 1171 (9th Cir. 2006)

(quoting United States v. Lopez-Solis, 447 F.3d 1201, 1205

6898 UNITED STATES v. BELTRAN-MUNGUIA

n.10 (9th Cir. 2006)). By defining “forcible sex offenses” to

encompass only a narrower group of offenses, i.e., those

offenses with a “forcible compulsion” element, the “has as an

element” definition in section 2L1.2(b)(1)(A)(ii) subsumes

“forcible sex offenses,” and renders the phrase meaningless.

For this reason, we would be better advised to interpret the

term as did the Third Circuit in United States v. Remoi, 404

F.3d 789 (3d Cir. 2005).

In Remoi, the court concluded that a defendant’s prior New

Jersey conviction for penetration against a physically helpless,

mentally defective, or mentally incapacitated victim consti-

tuted a “forcible sex offense,” and thus a “crime of violence.”

Id. at 794. The court explained that the Commission “did not

mean to limit ‘forcible sex offenses’ to those involving the

application of direct physical force, as opposed to some other

type of compulsion,” where doing so renders the provision

superfluous. Id. at 794-95. The court further noted that the

Commission considers sex crimes against minors per se “forc-

ible sex offenses” because a minor lacks the capacity to con-

sent to sexual relations, which makes the relations “forcible.”

Id. at 795.1 Because the logic applies equally to other types of

1

In 2001, the Commission amended section 2L1.2 by defining “crime

of violence” with the parenthetical “(including sexual abuse of a child)”

after “forcible sex offenses.” Asberry, 394 F.3d at 716. In 2003, the Com-

mission further amended the definition of “crime of violence” to list “sex-

ual abuse of a minor” separately. Id. The 2002 version applied in Remoi.

Though the 2004 edition of the Guidelines applies in this case, the reason-

ing in Remoi is persuasive. That the Commission once cited “sexual abuse

of a minor” as an example of a “forcible sex offense” supports extending

the term to all sex acts taken against a victim’s will, not just those involv-

ing forcible compulsion. The Commission revised the definition in 2003

to list “sexual abuse of a minor” only because the previous definition led

to confusion about whether the specified offenses, particularly sexual

abuse of a minor, had to include as an element “the use, attempted use, or

threatened use of physical force against the person of another.” Asberry,

394 F.3d at 716 (citing U.S. Sentencing Guidelines Manual app. C,

amend. 658, Reason for Amendment, 397-402 (2003)). Had the Commis-

sion intended that “forcible sex offenses” involve physical force or a threat

of force, it could have said so at the same time.

UNITED STATES v. BELTRAN-MUNGUIA 6899

vulnerable victims, the Third Circuit had no trouble conclud-

ing that penetration against a “physically helpless, mentally

defective or mentally incapacitated” victim constituted a

“forcible sex offense.” Remoi, 404 F.3d at 795. Finally, the

court recognized the Sentencing Commission’s November

2003 Amendment as clarifying that an enumerated offense

always qualifies as a “crime of violence,” regardless of

whether the perpetrator employed physical force. Id.; see also

United States v. Luciano-Rodriguez, 442 F.3d 320, 329 (5th

Cir. 2006) (Owen, J., dissenting) (concluding that sexual

intercourse without legally effective consent falls within the

scope of “forcible sex offenses” based on the history behind

the definition).

We may find under this post-Booker/Fanfan advisory

Guidelines regime that district judges can nonetheless dis-

pense justice in fashioning an appropriate sentence for recidi-

vist offenders like Beltran-Munguia. If so, then the mental

gymnastics of the panel’s opinion here, though an interesting

academic discussion, does no real harm to sentencing discre-

tion. Nevertheless, there is confusion in our case law, and I

urge our court to revisit any precedent that precludes us from

classifying nonconsensual sex as a “crime of violence” under

section 2L1.2(b)(1)(A)(ii). We should join the Third Circuit

and define “forcible sex offenses” to include any sexual act

committed against the victim’s will or consent. See Remoi,

404 F.3d at 796. Because Judge Berzon correctly applies

existing circuit precedent here, I reluctantly concur.