United States v. Alvaro Gonzalez-Monterroso

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10158

Plaintiff-Appellee,

D.C. No.

v. 4:10-cr-02123-

DCB-JJM-1

ALVARO GONZALEZ-MONTERROSO,

AKA Alvaro Gonzalez,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

October 10, 2013—San Francisco, California

Filed February 14, 2014

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Wallace

2 UNITED STATES V. GONZALEZ-MONTERROSO

SUMMARY*

Criminal Law

The panel reversed the district court’s determination that

the defendant’s prior Delaware conviction for attempted rape

in the fourth degree was a “crime of violence” warranting a

16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii),

and remanded for resentencing.

The panel held that because Delaware’s statutory

definition of “substantial step” is materially different from

and encompasses more conduct than the federal generic

definition, the Delaware attempt statute criminalizes more

conduct than the federal generic attempt definition, and the

defendant’s prior state conviction therefore does not qualify

as a federal generic attempt offense under the Taylor

categorical approach.

The panel held that the modified categorical approach is

not available because whatever the underlying facts or the

evidence presented, the defendant would not have been

convicted of an offense with the same elements as an

attempted crime of violence.

Concurring, Judge Wallace wrote that because the

defendant’s underlying offense does not meet the generic

definitions proposed by the government, the panel should

reverse the sentence without determining whether the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. GONZALEZ-MONTERROSO 3

defendant committed the elements of the generic definition of

attempt, which requires answering a question reserved by the

Supreme Court.

COUNSEL

Roger H. Sigal, Law Offices of Roger H. Sigal, Tucson,

Arizona, for Defendant-Appellant.

Erica Anderson McCallum (argued), Assistant United States

Attorney; John S. Leonardo, United States Attorney; Robert

L. Miskell, Appellate Chief, United States Attorney’s Office,

Tucson, Arizona, for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether Delaware’s

criminal attempt statutes, see Del. Code Ann. tit. 11,

§§ 531(2), 532, constitute a federal generic attempt crime for

purposes of imposing an enhancement under the U.S.

Sentencing Guidelines. Because we conclude that

Delaware’s definition of “attempt” criminalizes more conduct

than the federal generic definition, we conclude that the

district court erred in imposing the enhancement.

I

On August 4, 2011, Alvaro Gonzalez-Monterroso pleaded

guilty to one count of illegal reentry, pursuant to 8 U.S.C.

§ 1326, in the District of Arizona. Gonzalez claims that the

4 UNITED STATES V. GONZALEZ-MONTERROSO

district court erred in determining that his prior state court

conviction for attempted rape in the fourth degree, under Del.

Code Ann. tit. 11, §§ 531, 532, 770, qualified as a “crime of

violence” warranting a 16-level enhancement under

§ 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines.

To analyze this appeal, we first set forth the statutory

framework. The Sentencing Guidelines impose a base

offense level of 8 for an alien convicted of unlawful reentry

in violation of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2(a). If

the defendant has a prior felony conviction that qualifies as a

“crime of violence,” the Guidelines provide for a 16-level

enhancement. Id. § 2L1.2(b)(1)(A)(ii).1 A “crime of

violence” is defined to include a range of offenses, including

“statutory rape” and “sexual abuse of a minor.”2 Id. § 2L1.2

1

Section 2L1.2(b)(1) of the U.S. Sentencing Guidelines states, in

pertinent part:

If the defendant previously was deported, or unlawfully

remained in the United States, after—

(A) a conviction for a felony that is . . . (ii) a crime of

violence . . . increase [the offense level] by 16 levels

....

U.S.S.G. § 2L1.2(b)(1).

2

The first application note to § 2L1.2 provides in relevant part:

“Crime of violence” means any of the following

offenses under federal, state, or local law: Murder,

manslaughter, kidnapping, aggravated assault, forcible

sex offenses (including where consent to the conduct is

not given or is not legally valid, such as where consent

to the conduct is involuntary, incompetent, or coerced),

statutory rape, sexual abuse of a minor, robbery, arson,

UNITED STATES V. GONZALEZ-MONTERROSO 5

cmt. n.1(B)(iii). A prior conviction for an attempt to commit

a state offense also constitutes a “crime of violence” if the

completed offense qualifies as a “crime of violence” in its

own right. Id. § 2L1.2 cmt. n.5; see also United States v.

Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).

To determine whether a prior state court conviction

constitutes a “crime of violence” warranting a 16-level

enhancement, a sentencing court must employ the approach

outlined in Taylor v. United States, 495 U.S. 575 (1990).

First, the court compares the elements of the state statute of

conviction with the federal generic definition of the crime.

United States v. Velasquez-Bosque, 601 F.3d 955, 957–58

(9th Cir. 2010). Where the federal generic offense

encompasses numerous crimes, as is the case with the “crime

of violence” offense, the court must compare the crime of

conviction with each of the crimes falling within that offense

category. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853

(9th Cir. 2013); see also Cerezo v. Mukasey, 512 F.3d 1163,

1166 (9th Cir. 2008).

If the defendant is convicted of an attempt crime, a

sentencing court must determine: “whether the defendant’s

conviction establishes that he committed the elements of the

generic definition of ‘attempt’ and that the underlying offense

he attempted meets the generic definition of that offense.”

United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th

extortion, extortionate extension of credit, burglary of

a dwelling, or any other offense under federal, state, or

local law that has as an element the use, attempted use,

or threatened use of physical force against the person of

another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

6 UNITED STATES V. GONZALEZ-MONTERROSO

Cir. 2012). If the state attempt statute criminalizes more

conduct than the federal generic definition of “attempt,” a

state attempt crime does not categorically constitute a generic

federal attempt crime. If the state attempt statute is a

categorical match for the federal generic definition of

“attempt,” then the court must proceed to determine whether

the state crime of conviction for the underlying offense is a

categorical match for any of the federal generic offenses that

are listed as crimes of violence. See id. In sum, in dealing

with attempt crimes, the district court can impose the 16-level

enhancement under § 2L1.2(a) only if both the state’s

definition of “attempt” and the underlying state offense are

categorical matches for the federal generic “attempt”

definition and the underlying federal generic offense.

Where the state statute of conviction criminalizes more

conduct than the federal generic offense, the sentencing court

may apply a modified categorical approach in a “‘narrow

range of cases.’” Descamps v. United States, 133 S. Ct. 2276,

2283–84 (2013) (quoting Taylor, 495 U.S. at 602); see also

United States v. Acosta-Chavez, 727 F.3d 903, 907 (9th Cir.

2013). As Descamps recently clarified, application of the

modified categorical approach is appropriate only where the

state criminal statute is divisible. 133 S. Ct. at 2283–85.

“[D]ivisibility exists only when an element of the crime of

conviction contains alternatives, one of which is an element

of its federal analogue.” Acosta-Chavez, 727 F.3d at 909

(citing Descamps, 133 S. Ct. at 2283–84). For example, if a

state statute prohibits breaking and entering in any of four

alternative places (a building, ship, vessel, or vehicle) and

only one of these alternatives (breaking into a building)

qualifies as the federal generic offense of burglary, then a

court may consider whether the defendant’s conviction was

based on unlawful entry into a building. See Descamps,

UNITED STATES V. GONZALEZ-MONTERROSO 7

133 S. Ct. at 2284 (discussing Shepard v. United States,

544 U.S. 13 (2005)). In making this determination, the court

may consider a limited class of judicially noticeable

documents to determine whether the applicable alternative

(i.e., breaking into a building, rather than a vehicle, in the

example given in Descamps) was the basis of the conviction.

See United States v. Snellenberger, 548 F.3d 699, 701–02

(9th Cir. 2008) (en banc) (per curiam), abrogated on other

grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir.

2012) (en banc). Applied in this manner, the modified

categorical approach “merely helps implement the categorical

approach” by identifying the specific statutory elements of

the conviction to compare to the generic offense. Descamps,

133 S. Ct. at 2285.

We apply the same modified categorical analysis in cases

where the defendant was convicted of an attempt crime, if the

state attempt statute is divisible and some of the alternative

definitions of “attempt” do not categorically match the

federal generic definition of “attempt.” In such a case, the

sentencing court may determine, based on judicially

noticeable documents, whether the defendant was convicted

of a statutory definition of “attempt” that meets the federal

generic definition. See id.

II

We now turn to the facts of this case. Gonzalez was born

in 1981 in Guatemala. At the age of 19, he entered the

United States illegally. He eventually settled in Delaware,

where he resided for almost a decade.

8 UNITED STATES V. GONZALEZ-MONTERROSO

In January 2010, Gonzalez pleaded guilty in Delaware

state court to attempted rape in the fourth degree, in violation

of section 770 of the Delaware Criminal Code.3

3

At that time, section 770 of the Delaware Criminal Code stated in

pertinent part:

(a) A person is guilty of rape in the fourth degree when

the person:

(1) Intentionally engages in sexual intercourse with

another person, and the victim has not yet reached

that victim’s sixteenth birthday; or

(2) Intentionally engages in sexual intercourse with

another person, and the victim has not yet reached

that victim’s eighteenth birthday, and the person is

30 years of age or older, except that such

intercourse shall not be unlawful if the victim and

person are married at the time of such intercourse;

or

(3) Intentionally engages in sexual penetration with

another person under any of the following

circumstances:

a. The sexual penetration occurs without the

victim’s consent; or

b. The victim has not reached that victim’s

sixteenth birthday; or

(4) Intentionally engages in sexual intercourse or

sexual penetration with another person, and the

victim has reached that victim’s sixteenth birthday

but has not yet reached that victim’s eighteenth

birthday and the defendant stands in a position of

trust, authority or supervision over the child, or is

an invitee or designee of a person who stands in a

UNITED STATES V. GONZALEZ-MONTERROSO 9

At a sentencing hearing on January 4, 2010, the state

prosecutor briefly described the allegations supporting

Gonzalez’s conviction. The victim “was 14 years old, the

defendant was driving her home from church. He drove past

her house, pulled onto the shoulder of the road, began rubbing

on her thigh, tried to kiss her, and asked her to have sex with

him.” Gonzalez was 28 years old at the time of the incident.

Shortly after the court entered judgment in the Delaware

proceeding, the government deported Gonzalez to his native

Guatemala. He spent several months outside the United

States. On July 26, 2010, Gonzalez was arrested in Arizona

by U.S. Border Patrol agents. He was indicted on one count

of illegal reentry under 8 U.S.C. § 1326 (enhanced by

8 U.S.C. § 1326(b)(2)), and subsequently pleaded guilty to

this charge.

In calculating Gonzalez’s total offense level under the

Sentencing Guidelines, the Presentence Investigation Report

(PSR) imposed a 16-level enhancement under

§ 2L1.2(b)(1)(A) on the ground that Gonzalez had previously

been deported after a conviction for attempted fourth degree

rape, which the PSR determined was a “crime of violence.”

In reaching this conclusion, the PSR first acknowledged that

the state statute of conviction, section 770, was not a

categorical match to any federal generic “crime of violence,”

because section 770 criminalized sexual offenses when the

sexual intercourse was consensual and the victim was 17

years of age. Notwithstanding the lack of a categorical match

position of trust, authority or supervision over the

child.

Del. Code Ann. tit. 11, § 770(a) (1998).

10 UNITED STATES V. GONZALEZ-MONTERROSO

between the prior state conviction and the federal generic

crime of violence offense, the PSR then applied the modified

categorical approach. Because documents in the record

established that Gonzalez was 28 and the victim was 14 at the

time of the state offense, the PSR concluded that Gonzalez

had been convicted of a state offense that qualified as “sexual

abuse of a minor,” which is a “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A).

Gonzalez objected to this conclusion on the ground that

his prior state conviction did not qualify as a crime of

violence even under the modified categorical approach. He

argued (among other reasons) that he had been convicted of

an “attempt” crime, and Delaware’s definition of “attempt”

criminalized more conduct than the federal generic attempt

offense.

At the sentencing hearing, the district court rejected

Gonzalez’s objections. Because the district court did not

have the benefit of the Supreme Court’s decision in

Descamps, it followed the PSR in its application of the

modified categorical approach. Relying on the judicially

noticeable documents in the record, the district court

determined that Gonzalez had been 30 years of age, and his

victim had been 14 at the time of the state offense, which

supported the conclusion that Gonzalez had been convicted

of a crime of violence warranting a 16-level enhancement.

Accordingly, the district court adopted the PSR’s guidelines

calculation and the corresponding guidelines range of 51 to

63 months imprisonment.

UNITED STATES V. GONZALEZ-MONTERROSO 11

III

On appeal, Gonzalez claims that his state court conviction

for attempted rape in the fourth degree under section 770 of

the Delaware Criminal Code does not constitute a “crime of

violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A) under

either a categorical or modified categorical approach. We

review de novo the district court’s determination that a prior

conviction constitutes a crime of violence. Gomez-

Hernandez, 680 F.3d at 1174.

Analyzing this claim requires us to first determine

whether Delaware’s attempt statute is a categorical match for

the federal definition of “attempt.” Id. at 1175. We have

defined “attempt” as requiring “[1] an intent to commit” the

underlying offense, along with “[2] an overt act constituting

a substantial step towards the commission of the offense.”

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir.

2011) (alterations in original); see also United States v.

Rivera-Ramos, 578 F.3d 1111, 1113–14 (9th Cir. 2009).

“‘Mere preparation’ to commit a crime ‘does not constitute a

substantial step.’” Hernandez-Cruz, 651 F.3d at 1102

(quoting United States v. Buffington, 815 F.2d 1292, 1301

(9th Cir. 1987)). A substantial step occurs when a

defendant’s “actions ‘unequivocally demonstrat[e] that the

crime will take place unless interrupted by independent

circumstances.’” Id. (alteration in original) (quoting United

States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per

curiam)). “Even when the defendant’s intent is clear, his

actions must cross the line between preparation and attempt

. . . .” United States v. Yossunthorn, 167 F.3d 1267, 1271 (9th

Cir. 1999) (internal quotation omitted). In Yossunthorn, for

instance, we reversed a defendant’s conviction for attempted

possession of heroin with intent to distribute because there

12 UNITED STATES V. GONZALEZ-MONTERROSO

was insufficient evidence to show that the defendant had

taken a substantial step toward completing the violation. Id.

at 1270–71. The evidence established that the defendant had

tried to schedule a meeting with a heroin dealer at a local

McDonald’s in order to make a purchase, and had conducted

countersurveillance in the restaurant parking lot to detect law

enforcement activity. Id. at 1269. While there was “no

question that there was sufficient evidence that [the

defendant] intended to possess heroin with intent to

distribute,” id. at 1270, we held that the defendant’s act of

surveying the McDonald’s was not a substantial step because

it “did not constitute an appreciable fragment of the crime of

drug possession with intent to distribute,” id. at 1272 (internal

quotation omitted). Nor did making an appointment to

purchase the heroin constitute a substantial step, because the

defendant “had not agreed to purchase any particular quantity

of heroin or arranged for its delivery.” Id. at 1273.

We next compare this federal generic definition of

“attempt” to the Delaware definition of “attempt” for

purposes of its state attempt crimes. Under Delaware law, a

person is guilty of an attempt crime if that person either

“[i]ntentionally engages in conduct which would constitute

the crime if the attendant circumstances were as the person

believes them to be,” Del. Code Ann. tit. 11, § 531(1), or if

the person “[i]ntentionally does or omits to do anything

which, under the circumstances as the person believes them

to be, is a substantial step in a course of conduct planned to

culminate in the commission of the crime by the person,” id.

§ 531(2).

For purposes of section 531(2), Delaware defines a

“substantial step” as “an act or omission which leaves no

reasonable doubt as to the defendant’s intention to commit

UNITED STATES V. GONZALEZ-MONTERROSO 13

the crime which the defendant is charged with attempting.”

Id. § 532. In light of this statutory definition, we conclude

that Delaware’s “attempt” crimes criminalize more conduct

than generic federal attempt offenses. While section 532 is

satisfied by proof of an act demonstrating the defendant’s

intent to commit a crime, this is not enough under the federal

definition; even when the defendant’s intent is clear, only acts

which “unequivocally demonstrat[e] that the crime will take

place unless interrupted by independent circumstances”

suffice. Hernandez-Cruz, 651 F.3d at 1102 (quoting Goetzke,

494 F.3d at 1237). This means that under Delaware law, a

defendant could be held liable for an attempt due to “mere

preparation” or other preliminary acts not “of such

substantiality that, unless frustrated, the crime would have

occurred,” Saavedra-Velazquez, 578 F.3d at 1107 (internal

quotation omitted), which would not constitute an attempt for

purposes of federal criminal law.

Delaware courts recognize the breadth of the statutory

definition of “substantial step.” As explained by the

Delaware Supreme Court, the definition of “substantial step”

is “‘without precedent in other statutes’” because it focuses

on the defendant’s intent rather than on whether the defendant

has taken an overt act that qualifies as a substantial step. See

Gronenthal v. State, 779 A.2d 876, 880 (Del. 2001) (quoting

Del. Crim. Code with Commentary § 532, at 156–57 (1973)).

In Gronenthal, for instance, the defendant argued that he

could not be found guilty of an attempt crime because even

though “the State presented substantial evidence of his

‘intent’ to commit murder,” the state “failed to establish

sufficient evidence that he acted on that intent, so as to

constitute a ‘substantial step’ toward attempting to murder”

the victim. Id. The Delaware Supreme Court rejected this

argument, explaining that Delaware had deliberately rejected

14 UNITED STATES V. GONZALEZ-MONTERROSO

the Model Penal Code’s definition of a “substantial step,” and

adopted an innovative definition that would allow the jury to

decide “‘the point at which there remains no reasonable doubt

as to [the defendant’s] intention to commit the crime.’” Id.

(quoting Del. Crim. Code with Commentary § 532, at

156–57). Accordingly, “[t]he law of ‘attempts’ under the

[Delaware] Criminal Code ‘seeks to prevent even the

preparations from crime by threatening punishment prior to

the completion of the crime.’” Hassan-El v. State, 911 A.2d

385, 392 (Del. 2006) (emphasis added) (quoting Del. Crim.

Code with Commentary § 531, at 151). Because Delaware

courts have not narrowed the breadth of section 532, we need

not reach the question expressly reserved by Descamps,

“whether, in determining a crime’s elements, a sentencing

court should take account not only of the relevant statute’s

text, but of judicial rulings interpreting it.” 133 S. Ct. at

2291.4

Because Delaware’s statutory definition of “substantial

step” is materially different from and encompasses more

conduct than the federal generic definition, the Delaware

attempt statute criminalizes more conduct than the federal

generic attempt offense. Therefore, Gonzalez’s prior state

conviction for an attempt offense (attempted rape in the

fourth degree) does not qualify as a federal generic attempt

offense under the Taylor categorical approach.

4

In any event, contrary to the concurrence’s suggestion, we declare no

new principle of law by considering the Delaware Supreme Court’s

explanation of Delaware state law. It is well established that when

“determining the categorical reach of a state crime, we consider not only

the language of the state statute, but also the interpretation of that

language in judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d

1010, 1016 (9th Cir. 2006).

UNITED STATES V. GONZALEZ-MONTERROSO 15

The government argues that we may nevertheless conduct

a modified categorical analysis of the Delaware attempt

statute. Under the modified categorical approach, the

government argues, we can take note of Gonzalez’s

admission in the change of plea hearing that he rubbed the

victim’s thigh, attempted to kiss her, and asked her to have

sex with him. According to the government, this shows both

Gonzalez’s specific intent to engage in sex with the victim

and an overt act which was a substantial step toward

committing the crime.

We disagree, because the modified categorical approach

is not available in this context. Under Descamps, we may

apply the modified categorical approach only to state statutes

that are divisible, meaning they set forth alternative ways to

commit an offense. 133 S. Ct. at 2283–85. Here, while

Delaware’s Criminal Code offers two alternative ways a

person could be guilty of attempting to commit a crime, the

first alternative, section 531(1) (engaging in conduct that

would be criminal if the circumstances were as the defendant

believed them to be) is inapplicable in this case, and the

second alternative, section 531(2), criminalizes more conduct

than the federal attempt statute, and is not itself divisible.

Whatever the underlying facts or the evidence presented,

Gonzalez still would not have been convicted of an offense

with the same elements as an attempted crime of violence.

Id. at 2290.

Because Gonzalez’s attempt crime does not qualify as a

federal generic attempt crime for purposes of

§ 2L1.1(b)(1)(A), we conclude that the district court erred in

adding a 16-level enhancement. Accordingly, we need not

address Gonzalez’s arguments regarding the substantive

statute of conviction or his arguments that his sentence was

16 UNITED STATES V. GONZALEZ-MONTERROSO

procedurally and substantively unreasonable. We reverse and

remand for re-sentencing consistent with this opinion.

REVERSED AND REMANDED

WALLACE, Circuit Judge, concurring:

Recently, the Supreme Court expressly reserved “the

question whether, in determining a crime’s elements, a

sentencing court should take account not only of the relevant

statute’s text, but of judicial rulings interpreting it.”

Descamps v. United States, 133 S. Ct. 2276, 2291 (2013). As

a matter of judicial restraint, we should not declare a principle

of law unless we must. Local No. 8-6, Oil, Chem. & Atomic

Workers Int’l Union, AFL-CIO v. Missouri, 361 U.S. 363,

367 (1960) (“the duty of this Court is to decide actual

controversies by a judgment which can be carried into effect,

and not to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which

cannot affect the matter in issue in the case before it”)

(citation omitted). Thus, if the Supreme Court has expressly

reserved a question, and we can resolve an appeal without

addressing that question, principles of judicial restraint direct

us to resolve the appeal on a different ground.

The majority recognizes that the Supreme Court has

reserved whether sentencing courts should look to state

judicial rulings interpreting the state’s criminal statutory law.

Supra at 14 (citing Descamps). The majority states that they

are not answering that reserved question, but they do analyze

decisions of the Delaware Supreme Court about the definition

of “attempt” under Delaware law. Supra at 13–14.

UNITED STATES V. GONZALEZ-MONTERROSO 17

Regardless of whether the majority declares a “new”

principle of law, supra at 14 n.4, in my view there is no need

to even address the question the Supreme Court reserved. As

the majority recognizes, where a defendant has been

convicted of an attempt crime, the “crime of violence”

sentencing enhancement can only be applied if “the

defendant’s conviction establishes that he committed the

elements of the generic definition of ‘attempt’ and that the

underlying offense he attempted meets the generic definition

of that offense.” United States v. Gomez-Hernandez,

680 F.3d 1171, 1175 (9th Cir. 2012). Gonzalez’s underlying

offense does not meet the generic definitions proposed by the

government. Therefore, the district court improperly assessed

the 16-level enhancement, and we should reverse the sentence

without determining whether he committed the elements of

the generic definition of attempt, which requires answering

the question reserved by the Supreme Court in Descamps.

Gonzalez pleaded guilty to attempted rape in the fourth

degree in Delaware in 2009. At the time of conviction, rape

in the fourth degree was defined in the Delaware Criminal

Code as occurring when a person:

(1) Intentionally engages in sexual intercourse

with another person, and the victim has not

yet reached that victim’s sixteenth birthday;

or

(2) Intentionally engages in sexual intercourse

with another person, and the victim has not

yet reached that victim’s eighteenth birthday,

and the person is 30 years of age or older,

except that such intercourse shall not be

18 UNITED STATES V. GONZALEZ-MONTERROSO

unlawful if the victim and person are married

at the time of such intercourse; or

(3) Intentionally engages in sexual penetration

with another person under any of the

following circumstances:

a. The sexual penetration occurs without

the victim’s consent; or

b. The victim has not reached that victim’s

sixteenth birthday; or

(4) Intentionally engages in sexual intercourse

or sexual penetration with another person, and

the victim has reached that victim’s sixteenth

birthday but has not yet reached that victim’s

eighteenth birthday and the defendant stands

in a position of trust, authority or supervision

over the child, or is an invitee or designee of

a person who stands in a position of trust,

authority or supervision over the child.

Del. Code Ann. tit. 11, § 770(a) (1998) (section 770).

The government argues that Gonzalez was convicted of a

“forcible sex offense” “where consent to the conduct is not

given or is not legally valid,” or “statutory rape,” which are

both specifically enumerated examples of crimes of violence

in the Sentencing Guidelines. U.S.S.G. § 2L1.2 cmt. n.

1(B)(iii).1 Under our recent precedent, it is clear that both

1

The government argued before the district court that section 770 was

a forcible sex offense, statutory rape, or sexual abuse of a minor. The

district court applied the crime of violence enhancement, but did not

UNITED STATES V. GONZALEZ-MONTERROSO 19

arguments are untenable under either the categorical or

modified categorical approaches.

The government argues that because Gonzalez’s victim

was under the age of 16, she “was legally unable to give

consent” under Delaware law, and under a plain reading of

the Sentencing Guidelines, his sex offense conviction was

forcible. As of the date of argument in this case, whether a

sex crime where the victim could not consent due to age is

necessarily a forcible sex offense remained an open question

in this Circuit. Compare United States v. Banos-Mejia, 2013

WL 1613222, at *2 (9th Cir. Apr. 16, 2013) (unpub.) (a

conviction for a sexual offense when the victim “is not legally

competent to consent because of her age . . . constitutes a

‘forcible sex offense’ and, therefore, it categorically qualifies

as a ‘crime of violence’”), withdrawn on denial of reh’g en

banc, 2013 WL 4038591 (9th Cir. July 19, 2013) with United

clearly rule on which generic offense Gonzalez committed. In his opening

brief, Gonzalez argued that his conviction does not match generic

statutory rape or sexual abuse of a minor. The government failed to

defend explicitly the district court on either ground in its answering brief,

arguing only that Gonzalez was convicted of a forcible sex offense. The

government first argued that Gonzalez was convicted of generic statutory

rape in a footnote in its letter response to our August 8, 2013 order

requesting further briefing regarding Descamps.

The government’s failure to raise this argument in its answering brief

may mean that it has been waived. See United States v. Caceres-Olla,

738 F.3d 1051, 1054 n.1 (9th Cir. 2013) (“The government did not

respond to this argument [raised by the defendant], and so has waived

reliance on that ‘crime of violence’ variant”). I consider whether the

Delaware statute is generic statutory rape for the sake of clarity. The

government has never argued before this court that Gonzalez was

convicted of sexual abuse of a minor, so that argument is clearly waived

and I do not consider it.

20 UNITED STATES V. GONZALEZ-MONTERROSO

States v. Gonzalez-Aparicio, 663 F.3d 419, 437 n. 5 (9th Cir.

2011) (Tashima, J., dissenting) (“But [the government’s]

reading would render the term ‘statutory rape’ superfluous: if

statutory rape crimes are ‘forcible sex offenses’ simply

because the minor’s consent is invalid under state law, then

why does the commentary list statutory rape separately?”)

This is no longer an open question. Not all convictions

for sexual conduct with minors are “forcible sex offenses.”

Caceres-Olla, 738 F.3d at 1056. The Sentencing Guidelines

commentary lists three separate categories of sex crimes:

“forcible sex offenses,” “statutory rape,” and “sexual abuse

of a minor.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Sexual

conduct with minors, regardless of whether the victim in fact

consents, is a crime normally called “statutory rape.”

Caceres-Olla, 738 F.3d at 1055. If all sex offenses based

solely on the fact that the victim is unable to consent under

law because of age are “forcible sex offenses,” the separately

enumerated category of “statutory rape” in the Guidelines

commentary would be superfluous. Id. at 1055–56. Thus,

“[i]f all sex offenses ‘where consent . . . is not legally valid’

on the basis of age are, by definition, ‘forcible,’ there would

be no need to separately enumerate ‘statutory rape.’” Id. at

1056. We must interpret statutes to give effect to all

provisions and not render any part surplussage. Id.

Therefore, a sex offense against a minor is not automatically

a “forcible sex offense,” because such crimes are usually

called “statutory rape,” a separate category. A crime is only

a “forcible sex offense” under the Sentencing Guidelines if

the crime involves “actual compulsion.” Id. at 1057, quoting

United States v. Rangel-Castaneda, 709 F.3d 373, 380 (4th

Cir. 2013).

UNITED STATES V. GONZALEZ-MONTERROSO 21

At one point in its brief, the government suggests that the

police report from Gonzalez’s arrest shows he actually

compelled his victim. But the sentencing court could not

consider the police report, because the report was not

incorporated by reference in the plea agreement for

Gonzalez’s conviction, nor stipulated to by Gonzalez’s

attorney during the plea colluquy. See United States v.

Almazan-Becerra, 537 F.3d 1094, 1098 (9th Cir. 2008).

Further, the Delaware courts themselves call section 770

a law barring “statutory rape.”2 See Pritchard v. State,

842 A.2d 1244, 2004 WL 249419, at *1 (Del. Feb. 4, 2004)

(unpub.) (calling a crime under section 770 “statutory rape”);

see also State v. Waters, 2008 WL 4382801, at *1 (Del. Supr.

Ct. May 30, 2008) (calling offenses under section 770

“statutory rape”). Thus, Gonzalez’s conviction should not be

considered a forcible sex offense.

There is nothing in the record properly subject to judicial

notice to indicate that Gonzalez actually compelled his

victim. The government has instead consistently argued his

crime was a forcible sex offense solely because of the

victim’s age. That argument is foreclosed by Caceres-Olla.

Gonzalez was not convicted of a generic “forcible sex

offense.”

The government alternatively argues that Gonzalez was

convicted of generic “statutory rape.” The generic definition

of that crime was somewhat unclear until recently, but we

2

Unlike the majority, I cite to Delaware case law only to buttress my

conclusion. As stated, “forcible sex offenses” do not include offenses

based solely on a victim’s age because of a simple interpretation of federal

law, not state judicial rulings.

22 UNITED STATES V. GONZALEZ-MONTERROSO

have now resolved any confusion. “Statutory rape” has four

elements: “(1) a mens rea level of knowingly; (2) a sexual

act; (3) with a minor between the ages of 12 and 16; and

(4) an age difference of at least four years between the

defendant and the minor.” United States v. Gomez, 732 F.3d

971, 988 (9th Cir. 2013). In Gomez, we rejected the

government’s argument that the generic definition does not

include that four-year age differential. Id. at 988 n.18.

As the government admits, Gonzalez’s prior conviction

fell under either subsections 770(a)(1) or (a)(3). Neither

subsection requires a four-year age differential between the

defendant and victim, and both are therefore broader than the

generic federal definition of statutory rape. Delaware does

create an affirmative defense to a prosecution under section

770 if the defendant “is no more than 4 years older than the

victim,” but that is an affirmative defense, not an element of

the crime. Del. Code Ann. tit. 11, § 762. The sentencing

court could not have concluded that Gonzalez was convicted

of one of the elements of the generic offense of “statutory

rape,” so Gonzalez was not convicted of such a crime.

There is no need to determine whether section 770 is

divisible, because Gonzalez could not have been convicted of

either a forcible sex offense or statutory rape under the

Sentencing Guidelines, and thus did not commit a crime of

violence under either the categorical or modified categorical

approach.

Our recent decisions in Caceres-Olla and Gomez clearly

foreclose the government’s arguments. Instead of looking to

those decisions, which provide the “best and narrowest

ground available,” the majority improperly answers an

unnecessary question. See Air Courier Conf. of Am. v. Am.

UNITED STATES V. GONZALEZ-MONTERROSO 23

Postal Workers Union AFL-CIO, 498 U.S. 517, 531 (1991)

(Stevens, J., concurring). On the basis of our recent

precedent, rather than unnecessary resolution of the reserved

issue stated in Descamps, I concur with the majority result

that the district court erred in applying the 16-level crime of

violence enhancement, and agree that we must reverse and

remand for re-sentencing.