United States v. Bolanos-Hernandez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30406

Plaintiff-Appellee,

v.  D.C. No.

CR 05-0183 WFN

JOSE BOLANOS-HERNANDEZ,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted

March 9, 2007—Seattle, Washington

Filed August 6, 2007

Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima

9389

UNITED STATES v. BOLANOS-HERNANDEZ 9391

COUNSEL

Tracy A. Staab, Assistant Federal Public Defender, Spokane,

Washington, for the defendant-appellant.

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

Washington, for the plaintiff-appellee.

OPINION

TASHIMA, Circuit Judge:

Jose Bolanos-Hernandez (“Bolanos”) appeals the sentence

imposed after he pleaded guilty to illegal re-entry into the

United States following deportation, in violation of 8 U.S.C.

§ 1326. He contends that his sentence should be reversed

because: (1) his prior conviction for assault with intent to

commit rape is not a crime of violence; and (2) the district

court improperly found that he was subject to a prior convic-

tion and that he had been deported subsequent to that convic-

tion. We have jurisdiction pursuant to 18 U.S.C. § 3742 and

28 U.S.C. § 1291.

We hold that Bolanos’ prior California crime of assault

with intent to commit rape, in violation of Cal. Penal Code

§§ 220 and 261(a)(2), is a crime of violence under United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

§ 2L1.2(b)(1)(A)(ii). We therefore affirm the sixteen-level

enhancement imposed by the district court. We also reject

Bolanos’ contention that he was sentenced based on facts

improperly found by the district court.

STANDARD OF REVIEW

We review the district court’s interpretation of the Guide-

lines, including its determination whether a prior conviction

9392 UNITED STATES v. BOLANOS-HERNANDEZ

is a “crime of violence” for purposes of U.S.S.G. § 2L1.2, de

novo. United States v. Rodriguez-Rodriguez, 393 F.3d 849,

856 (9th Cir. 2005). We also review the constitutionality of a

statute de novo, as it is a pure question of law. See United

States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002).

FACTUAL AND PROCEDURAL BACKGROUND

Bolanos, an alien, was indicted on October 18, 2005, on

one count of being an alien found in the United States follow-

ing deportation, in violation of 8 U.S.C. § 1326. He pleaded

guilty. During the plea colloquy, the district court asked

Bolanos if he had been deported on October 9, 2002, and

Bolanos answered that he had. The district court also asked if

he had subsequently entered the country without permission,

and Bolanos answered that he had.

Bolanos’ presentence investigation report (“PSR”) recom-

mended increasing his base offense level by sixteen levels

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR asserted

that Bolanos had been deported following a conviction for

assault with intent to commit rape, a crime of violence, com-

mitted in 2000 in California. Based on the adjusted offense

level, the PSR recommended a sentencing range of forty-one

to fifty-one months.

At sentencing, the government provided several documents

related to Bolanos’ prior conviction, including: (1) the crimi-

nal complaint charging assault with intent to commit rape; (2)

Bolanos’ plea of no contest; (3) the minute order and commit-

ment; and (4) the transcript of Bolanos’ sentencing hearing.

The documents established that Bolanos was charged and

convicted of violating Cal. Penal Code §§ 220 and 261(a)(2).

Section 220 provides that “[e]very person who assaults

another with intent to commit . . . rape . . . is punishable by

imprisonment in the state prison for two, four, or six years.”

UNITED STATES v. BOLANOS-HERNANDEZ 9393

Cal. Penal Code § 220 (1999). Section 261(a) defines “rape”

as follows:

Rape is an act of sexual intercourse accomplished

with a person not the spouse of the perpetrator, under

any of the following circumstances: . . . (2) Where

it is accomplished against a person’s will by means

of force, violence, duress, menace, or fear of imme-

diate and unlawful bodily injury on the person or

[sic] another.

Cal. Penal Code § 261(a)(2) (1999).

At the district court sentencing hearing, the court found that

the California offense of assault with intent to commit rape is

categorically a crime of violence, holding it to be a “forcible

sex offense.” Consequently, the district court imposed the

sixteen-level enhancement. The court sentenced Bolanos to

forty-one months’ imprisonment, a three-year period of super-

vised release, and a $100 special assessment.

ANALYSIS

I. Assault with Intent To Commit Rape Is a Crime of

Violence.

Even though the Guidelines were made advisory in United

States v. Booker, 543 U.S. 220 (2005), the district court’s

Guidelines calculation is still subject to appellate review, as

district courts must utilize the Guidelines, along with the sen-

tencing goals, when fashioning a sentence. United States v.

Reina-Rodriguez, 468 F.3d 1147, 1150 n.1 (9th Cir. 2006)

(quoting Booker, 543 U.S. at 259).

[1] Section 2L1.2 of the Guidelines applies to a violation

of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2 cmt. statutory pro-

visions (2005). The Guidelines provide a base offense level of

eight, with the possibility of various increases in offense level

9394 UNITED STATES v. BOLANOS-HERNANDEZ

if the defendant previously was deported after certain qualify-

ing convictions. See U.S.S.G. § 2L1.2. Pursuant to

§ 2L1.2(b)(1)(A), an enhancement of sixteen levels applies if

Bolanos was deported after committing a crime of violence.

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

According to the Commentary, a “crime of violence” is

defined as:

murder, manslaughter, kidnapping, aggravated

assault, forcible sex offenses, statutory rape, sexual

abuse of a minor, robbery, arson, extortion, extor-

tionate extension of credit, burglary of a dwelling, or

any offense under federal, state, or local law that has

as an element the use, attempted use, or threatened

use of physical force against the person of another.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added). “Forc-

ible sex offenses” are thus enumerated crimes of violence.

Attempts to commit such offenses are also counted as crimes

of violence. See id. § 2L1.2 cmt. n.5.

To determine whether a defendant’s particular prior offense

qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii), we

look to the framework established by Taylor v. United States,

495 U.S. 575 (1990). See United States v. Pimentel-Flores,

339 F.3d 959, 968 (9th Cir. 2003). Taylor requires that the

court analyze the statutory definition of the offense rather

than the defendant’s underlying conduct. Taylor, 495 U.S. at

602. We compare the elements of a forcible sex offense with

the statutory elements of Bolanos’ prior offense of assault

with intent to commit rape. Cf. id. at 598-602. If the elements

of a forcible sex offense encompass California’s definition of

assault with intent to commit rape, assault with intent to com-

mit rape is “categorically” a crime of violence.1 See id. at 588.

1

If the statutory elements of Bolanos’ crime of conviction criminalize

both conduct that would qualify as a forcible sex offense and conduct that

UNITED STATES v. BOLANOS-HERNANDEZ 9395

In conducting this analysis, we read the state statutes accord-

ing to their interpretation by California state courts. See

Reina-Rodriguez, 468 F.3d at 1152.

We first consider what conduct is encompassed by the term

“forcible sex offense.” We ascribe traditional crimes, such as

burglary or theft, their “generic, contemporary meaning,” by

reference to the definitions employed by most states as well

as guidance from LaFave’s treatise and the Model Penal

Code. See, e.g., Taylor, 495 U.S. at 598 (burglary); United

States v. Corona-Sanchez, 234 F.3d 449, 452-55 (9th Cir.

2000) (theft). Non-traditional offenses, on the other hand, are

defined according to their “ordinary, contemporary, and com-

mon meaning.” United States v. Lopez-Solis, 447 F.3d 1201,

1207 (9th Cir. 2006) (internal quotation marks omitted); see,

e.g., Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (interpreting

“crime of violence” under 18 U.S.C. § 16 by referencing the

natural connotation and ordinary meaning of the statutory lan-

guage setting forth the definition); Fernandez-Ruiz v. Gon-

zales, 466 F.3d 1121, 1125, 1132 (9th Cir. 2006) (en banc)

(following Leocal to interpret the meaning of “crime of

domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i)); Lopez-

Solis, 447 F.3d at 1207 (defining “sexual abuse of a minor”

under U.S.S.G. § 2L1.2 employing the dictionary definition of

“abuse” and the common understanding of the words “sexual”

would not, a court may additionally consider the terms of the plea agree-

ment or transcript of the colloquy between the judge and the defendant

confirming the plea’s factual basis in order to determine whether the prior

conviction was for a crime of violence. Shepard v. United States, 544 U.S.

13, 21, 26 (2005); see, e.g., Reina-Rodriguez, 468 F.3d at 1153-57 (apply-

ing so-called “modified categorical approach” to prior conviction for bur-

glary). In this case, however, there is no submitted plea colloquy, and the

terms of the plea agreement reveal no additional information regarding

Bolanos’ offense. As we may not rely on facts contained in the PSR,

United States v. Contreras-Salas, 387 F.3d 1095, 1098 (9th Cir. 2004), we

are limited to evaluating Bolanos’ offense using only “the fact of convic-

tion and the statutory definition of the prior offense,” derived in this case

from the criminal minute order and commitment. Taylor, 495 U.S. at 602.

9396 UNITED STATES v. BOLANOS-HERNANDEZ

and “minor”); United States v. Trinidad-Aquino, 259 F.3d

1140, 1145 (9th Cir. 2001) (interpreting “crime of violence”

under 18 U.S.C. § 16 by referencing the dictionary definition

and “ordinary, contemporary, and common parlance” of the

statutory language setting forth the definition).

A “forcible sex offense” is not a traditional crime. The term

appears in the codes of only three states. See Cal. Welf. &

Inst. Code § 602(b)(2)(C); Cal. Penal Code § 264.1 (referring

to sexual intercourse or penetration by force or violence); Me.

Rev. Stat. Ann. tit. 17-a, §§ 108 cmt., 253(1)(A) (referring to

sexual intercourse compelled by force); N.H. Rev. Stat. Ann.

§ 627:4(II) (offering no additional description of the term). It

is not discussed at all by the Model Penal Code or LaFave’s

treatise. See generally Model Penal Code §§ 213.0-.6 (1981)

(discussing sexual offenses); Wayne R. LaFave, Substantive

Criminal Law 604-64 (2d ed. 2003) (discussing rape). “Forc-

ible sex offenses,” therefore, are defined according to the

ordinary, contemporary, and common meaning of the term.

[2] But we need not formulate a comprehensive definition

of “forcible sex offenses” in order to resolve this appeal, as

we are satisfied that assault with intent to commit rape would

satisfy the ordinary, contemporary, and common meaning of

a “forcible sex offense.” First, rape is a “sex offense,” as the

term is commonly understood. See Black’s Law Dictionary

1112 (8th ed. 2004) (a “sexual offense” “involv[es] unlawful

sexual conduct”); cf. United States v. Beltran-Munguia, No.

06-30118, 2007 WL 1630165 (9th Cir. June 7, 2007) (in con-

sidering whether defendant’s conviction for second-degree

sexual abuse required force, assuming without discussion that

criminal acts of sexual intercourse or penetration would qual-

ify).

[3] As the Sentencing Commission has indicated that

attempt crimes carry the same weight as completed crimes,

attempted rape would also qualify as a sex offense. See

U.S.S.G. § 2L1.2 cmt. n.5. Assault with intent to commit

UNITED STATES v. BOLANOS-HERNANDEZ 9397

rape, in violation of California Penal Code §§ 220 (prohibit-

ing assaults with intent to commit certain felonies) and 261

(prohibiting rape), is considered by the California courts to be

an aggravated form of attempted rape. See People v. Holt, 937

P.2d 213, 248-49 (Cal. 1997) (stating that assault with intent

to commit rape would be the appropriate charge where there

has been an attempted but unsuccessful rape which included

an assault). As a form of attempted rape, assault with intent

to commit rape is a “sex offense.”

The question remaining is whether the offense of assault

with intent to commit rape is “forcible.” Prior opinions of this

circuit provide a starting point for interpretation of this ele-

ment. Specifically, we have held that “forcible” connotes the

use of some force outside of the act of unwanted penetration.

In Beltran-Munguia, we recently held that the Oregon

crime of sexual abuse in the second degree, which criminal-

izes nonconsensual intercourse or penetration,2 is not categori-

cally a forcible sex offense. 2007 WL 1630165, at *7. We

first noted that the plain language of the term suggested a

requirement of force. Id. Relying on an earlier case, which

had declared that the California crime of sexual battery was

not a forcible sex offense because it merely required ephem-

eral touching of the victim, we held that there must be an ele-

ment of force within the state statute to qualify it as

“forcible.” Id. (citing United States v. Lopez-Montanez, 421

F.3d 926, 929-30 (9th Cir. 2005)). Elsewhere, the opinion

rejected the possibility that the requisite amount of force

inheres in an act of penetration. Id. at *4. Because the Oregon

2

Under the Oregon statute:

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

when that person subjects another person to sexual intercourse,

deviate sexual intercourse 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.

9398 UNITED STATES v. BOLANOS-HERNANDEZ

statute did not require an independent showing of force above

and beyond the force inherent to penetration, the conviction

could not qualify as a categorical forcible sex offense. Id. at

*7. Under Beltran-Munguia, therefore, “forcible” sex offenses

criminalize acts that necessitate the use of force.

On the other hand, “forcible” does not refer to the height-

ened level of force needed to qualify a crime under § 2L1.2’s

provision that a crime of violence includes “any offense under

federal, state, or local law that has as an element the use,

attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In con-

sidering whether an offense fits under this “catch-all” provi-

sion, we require that such force “ ‘must actually be violent in

nature.’ ” United States v. Ceron-Sanchez, 222 F.3d 1169,

1172 (9th Cir. 2000) (quoting Ye v. INS, 214 F.3d 1128, 1133

(9th Cir. 2000)), overruled on other grounds, Fernandez-Ruiz,

466 F.3d at 1132, 1134-35. It is a fundamental canon of statu-

tory construction that a text should not be construed so as to

render any of its provisions mere surplusage. See, e.g., TRW

Inc. v. Andrews, 534 U.S. 19, 31 (2001). Requiring forcible

sex offenses, one of the enumerated crimes of violence, to

contain the same level of force required to qualify a crime

under the catch-all provision would subsume “forcible sex

offenses” within the catch-all category, rendering the enumer-

ation superfluous. We reject this reading of the provision.

The Sentencing Commission has disavowed such a result.

Prior to November 1, 2003, the definition of “crime of vio-

lence” contained within the commentary to § 2L1.2 was as

follows:

(I) means an 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; and

(II) includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including

UNITED STATES v. BOLANOS-HERNANDEZ 9399

sexual abuse of a minor), robbery, arson, extortion,

extortionate extension of credit, and burglary of a

dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002) (amended 2003).

The preceding definition was amended in 2003 to its cur-

rent definition, which (among other changes) combines sub-

sections I and II, reverses their order, and changes the

connecting word from “and” to “or:”

“Crime of violence” means any of the following:

murder, manslaughter, kidnapping, aggravated

assault, forcible sex offenses, statutory rape, sexual

abuse of a minor, robbery, arson, extortion, extor-

tionate 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.

Id. § 2L1.2 cmt. n.1(B)(iii) (2005).

The Commission explained that the reason for the commen-

tary amendment was to

clarif[y] the meaning of the term “crime of violence”

by providing that the term “means any of the follow-

ing: . . . .” The previous definition often led to confu-

sion over whether the specified offenses listed in that

definition, particularly sexual abuse of a minor and

residential burglary, also had to include as an ele-

ment of the offense “the use, attempted use, or

threatened use of physical force against the person of

another.” The amended definition makes clear that

the enumerated offenses are always classified as

“crimes of violence,” regardless of whether the prior

offense expressly has as an element the use,

9400 UNITED STATES v. BOLANOS-HERNANDEZ

attempted use, or threatened use of physical force

against the person of another.

Id. app. C, vol. II, amd. 658, at 401-02 (Nov. 1, 2003);3 cf.

Asberry, 394 F.3d at 716-17 (citing Amendment 658 as evi-

dence of the Sentencing Commission’s intent that the Oregon

offense of statutory rape, which contains no requirement of

force, should be treated as a per se crime of violence).

Forcible sex offenses therefore require more force than that

inherent to penetration but need not require violent force.

After examining California’s interpretation of assault with

intent to commit rape in light of the above considerations, we

conclude that it is “forcible” because California courts require

a showing that the defendant has used or attempted at least

some level of force on the victim.

[4] A conviction for assault with intent to commit rape, in

violation of Cal. Penal Code §§ 220 and 261(a)(2), requires

proof of the elements of attempted rape plus those of assault.

People v. Pierce, 128 Cal. Rptr. 2d 397, 401 (Ct. App. 2002);

3

We recognize the tension between this statement by the Sentencing

Commission and our holdings in Beltran-Munguia and Lopez-Montanez,

which do require forcible sex offenses to contain an element of force.

Generally, we must follow the Commentary to the Guidelines in interpret-

ing Guidelines provisions, unless the Commentary “violates the Constitu-

tion or a federal statute, or is inconsistent with the Guidelines.” United

States v. Asberry, 394 F.3d 712, 716 n.5 (9th Cir.) (citing Stinson v. United

States, 508 U.S. 36, 38 (1993)), cert. denied, 126 S. Ct. 198 (2005). On

the other hand, of course, we are bound to follow our circuit’s precedent

in the absence of en banc action or a clearly irreconcilable ruling by a

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

banc). Moreover, we note that the commentary to the Amendment is not

fully consistent with the plain language of “forcible sex offenses,” whose

ordinary and common meaning would almost certainly include the use of

some species of force. In any event, because we conclude that assault with

intent to commit rape does qualify as a forcible sex offense, Beltran-

Munguia and Lopez-Montanez do not dictate a result contrary to the Sen-

tencing Commission’s expressed intent in this case.

UNITED STATES v. BOLANOS-HERNANDEZ 9401

see also Comm. on Cal. Crim. Jury Instructions, California

Jury Instructions: Criminal (“CALJIC”) § 9.09 (2006) (jury

instructions for “Assault With Intent to Commit Certain Felo-

nies,” requiring proof that a person was assaulted and that the

assault was made with the specific intent to commit the asso-

ciated felony, such as rape). The jury instructions for assault

require the prosecution to prove the following elements:

1. A person willfully [and unlawfully] committed

an act which by its nature would probably and

directly result in the application of physical force on

another person;

2. The person committing the act was aware of

facts that would lead a reasonable person to realize

that as a direct, natural, and probable result of this

act that physical force would be applied to another

person; and

3. At the time the act was committed, the person

committing the act had the present ability to apply

physical force on the person of another.

CALJIC 9.00 (2006).4 Each of these elements specifically dis-

cusses the application of actual or attempted physical force on

the victim. Assault with intent to commit rape therefore

requires at least the attempted application of some physical

force.5

4

These instructions track Cal. Penal Code § 240, which defines “as-

sault” as “an unlawful attempt, coupled with a present ability, to commit

a violent injury on the person of another.” Bolanos was not charged with

violating § 240, but, as noted above, § 220 incorporates the elements of

assault.

5

Caselaw similarly focuses on the defendant’s intent to apply force,

holding that assault with intent to commit rape is complete once the defen-

dant “intends to use whatever force may be required” to commit the sexual

act against the will of the victim. People v. Maury, 68 P.3d 1 (Cal. 2003);

accord People v. Elam, 110 Cal. Rptr. 2d 185 (Ct. App. 2001).

9402 UNITED STATES v. BOLANOS-HERNANDEZ

Further, the force appears to be in addition to that required

to complete intercourse or penetration. We have located no

case in which a defendant was convicted of assault with intent

to commit rape without conduct involving the application of

force above and beyond the force inherent to the threatened

act of penetration. For example, in People v. Davis, 896 P.2d

119 (Cal. 1995), the California Supreme Court held that there

was sufficient evidence the defendant had committed assault

with intent to commit rape where the victim testified that he

prevented her from opening the car door to leave, and he

aggressively fondled her breasts and crotch over her protests.

Id. at 142-43. Similarly, in People v. Bradley, 19 Cal. Rptr.

2d 276 (Ct. App. 1993), overruled on other grounds in People

v. Rayford, 884 P.2d 1369, 1381 (Cal. 1994), the Court of

Appeal found sufficient evidence of assault with intent to

commit rape where the defendant grabbed the victim’s arm,

forced her to hang up the phone, and led her by the arm to a

secluded area. Id. at 283; cf. James v. United States, 127

S. Ct. 1586, 1597 (2007) (holding that courts should examine

the ordinary case, rather than theoretical possibilities, when

evaluating whether a crime presented a serious potential risk

of injury under 18 U.S.C. § 924(e)(2)(B)(ii)); Gonzales v.

Duenas-Alvarez, 127 S. Ct. 815, 822 (2007) (“[T]o find that

a state statute creates a crime outside the generic definition of

a listed crime . . . requires a realistic probability, not a theoret-

ical possibility, that the State would apply its statute to con-

duct that falls outside the generic definition of a crime.”).6

6

Bolanos argues that his crime is not a categorical crime of violence

because one can violate California’s forcible rape statute, California Penal

Code § 261(a)(2), by accomplishing sexual intercourse through “fear of

immediate and unlawful bodily injury.” Therefore, the California statute

defining assault with intent to commit rape criminalizes conduct that

would not constitute force. See People v. Iniguez, 872 P.2d 1183, 1188

(Cal. 1994) (holding that fear of immediate and unlawful bodily injury

may be shown either by demonstrating a genuine and objectively reason-

able fear of harm or by demonstrating an “unreasonable fear . . . if the

accused knowingly takes advantage of that fear in order to accomplish

sexual intercourse” (internal quotation marks omitted)); People v. St.

UNITED STATES v. BOLANOS-HERNANDEZ 9403

[5] Thus, because California caselaw suggests that the ordi-

nary conviction for violating California Penal Code §§ 220

and 261(a)(2) will involve the application or threat of force,

extrinsic to the force required for penetration, and because the

essential crime is an attempted rape, we hold that assault with

intent to commit rape is a forcible sex offense.

II. The District Court Made No Improper Findings of

Fact.

Bolanos argues that the district court found that he was

removed subsequent to a prior conviction, extending its judi-

cial factfinding “beyond the conclusive judicial record of a

prior conviction,” even though Shepard, 544 U.S. 13, merely

authorized the district court to find the fact of the prior con-

viction. He contends that such additional factfinding raises a

constitutional question, and the court should avoid the consti-

tutional question by limiting Bolanos’ maximum sentence to

two years under 8 U.S.C. § 1326(a). Bolanos also contends

that the additional factfinding violated his rights to due pro-

cess and to notice and a jury trial. Finally, he argues that

Almendarez-Torres v. United States, 523 U.S. 224 (1998), is

Andrew, 161 Cal. Rptr. 634, 644 (Ct. App. 1980) (discussing the preced-

ing possibility where the alleged rape took place in a mental institution,

the complainant was a patient, and the defendant was one of her caretak-

ers).

We are unmoved by Bolanos’ argument because, as discussed above,

Bolanos was convicted of assault with intent to commit rape. He identifies

no case that would breathe life into his hypothetical scenario in which a

California court would convict a defendant of committing an assault with

intent to commit rape by means of instilling an unreasonable fear in the

victim. Cf. Duenas-Alvarez, 127 S. Ct. at 822 (the defendant “must at least

point to his own case or other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which he argues”).

Indeed, despite the courts’ language in Iniguez and St. Andrew, we have

found no case in which a defendant has been successfully convicted of

rape under § 261(a)(2) without a finding that he used or threatened force.

Cf. St. Andrew, 161 Cal. Rptr. at 645 (reversing conviction).

9404 UNITED STATES v. BOLANOS-HERNANDEZ

invalid; thus, he was entitled to a jury determination of the

fact of his prior conviction.

[6] Bolanos’ argument with respect to the validity of

Almendarez-Torres is foreclosed by our precedent. See, e.g.,

United States v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir.

2006) (concluding that we are bound to follow Almendarez-

Torres until the Supreme Court expressly overrules it), cert.

denied, 127 S. Ct. 2097 (2007). Further, we reject Bolanos’

contentions that the district court improperly conducted addi-

tional factfinding by finding that Bolanos had been deported

subsequent to the conviction. The record reveals that, during

the plea proceeding, Bolanos himself admitted that he had

been deported to El Salvador on October 9, 2002. He further

admitted that he had reentered the United States without first

receiving permission from the United States to do so. The dis-

trict court thus found no facts beyond the fact of the prior con-

viction. Bolanos’ Shepard- and Almendarez-Torres-based

arguments are unfounded.

CONCLUSION

As an aggravated form of attempted rape, the California

crime of assault with intent to commit rape, in violation of

Cal. Penal Code §§ 220 and 261(a)(2) is a sex offense which

requires the attempted use of force. Bolanos’ California con-

viction for assault with intent to commit rape is therefore a

forcible sex offense, and was correctly designated a “crime of

violence” under U.S.S.G. § 2L1.2. The district court did not

improperly find any facts beyond the fact of Bolanos’ prior

conviction, and circuit precedent forecloses Bolanos’ conten-

tion that Almendarez-Torres is invalid. The district court’s

sentence is

AFFIRMED.