United States v. Gonzalez-Aparicio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10447

Plaintiff- Appellee, D.C. No.

v.

 4:09-cr-00685-CKJ-

DTF-1

ISAIAS GONZALEZ-APARICIO,

Defendant-Appellant. AMENDED

 OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

December 9, 2010—San Francisco, California

Filed June 8, 2011

Amended November 16, 2011

Before: Robert E. Cowen,* A. Wallace Tashima and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Cowen;

Dissent by Judge Tashima

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation.

20163

UNITED STATES v. GONZALEZ-APARICIO 20165

COUNSEL

Robert Lally Miskell (argued), Assistant U.S. Attorney, Tuc-

son, Arizona, for the appellee.

Jeffrey Glenn Buchella (argued), CJA, Tucson, Arizona, for

the appellant.

20166 UNITED STATES v. GONZALEZ-APARICIO

OPINION

COWEN, Circuit Judge:

Isaias Gonzalez-Aparicio appeals from the sentence

imposed by the District Court following his guilty plea to one

count of attempted reentry after deportation. Reviewing for

plain error, we will affirm.

I.

Gonzalez-Aparicio was born in Mexico on January 24,

1973. According to the presentence investigation report

(“PSR”) dated September 23, 2009, he moved to the United

States with his family when he was still a teenager.

In “Part B—Defendants’ Criminal History,” the PSR stated

that Gonzalez-Aparicio was arrested on August 18, 1999, at

age 26, and then convicted on the following charge: “Count

1 — Sexual Conduct with a Minor (felony) Arizona Revised

Statutes § 13-1405, Maricopa County Superior Court, Phoe-

nix, CR19992981.” (PSR ¶ 21.) He originally received the

following sentence: “02/02/2000 — 10 years probation, 1

year jail as condition of probation (credit for 167 days time

served).” (Id.) The sentence was then amended: “02/24/2000

— Sentence amended; condition imposing 1 year in jail

vacated and replaced by condition imposing 167 days in jail.”

(Id.) Gonzalez-Aparicio was deported to Mexico on February

23, 2000.

The PSR went on to state that:

The defendant was represented by counsel. Court

records show he pleaded guilty to Count 1 of an

indictment charging that in November 1998 he “en-

gaged in sexual intercourse or oral sexual contact

with [victim] a minor under the age of fifteen years,

this refers to the first intercourse[.]” Three additional

UNITED STATES v. GONZALEZ-APARICIO 20167

counts charging the defendant with sexual conduct

with the same victim were dismissed.

Arrest reports were not received, and court docu-

ments indicate only that from November 1998

through August 1999 the defendant engaged in inter-

course with the victim on at least four occasions. The

defendant was released to immigration authorities

and deported on February 23, 2000. As noted above,

the defendant’s sentence was amended the day fol-

lowing his deportation. A Maricopa County Adult

Probation official indicated revocation proceedings

will be initiated based on the defendant’s commis-

sion of the instant offense.

(Id.)

Following this first deportation, Gonzalez-Aparicio reen-

tered the United States. He was removed again in March

2009. On April 1, 2009, Border Patrol agents in Nogales, Ari-

zona, observed Gonzalez-Aparicio crawling through a hole in

the international border fence. Although he attempted to run

away, he was apprehended and admitted to the agents that he

was a Mexican citizen without legal authorization to be in this

country. A federal grand jury indicted him for attempted ille-

gal reentry after deportation under 8 U.S.C. § 1326 as

enhanced by 8 U.S.C. § 1326(b)(2). On August 20, 2009,

Gonzalez-Aparicio pled guilty.

Calculating the offense level under the Sentencing Guide-

lines, the PSR began with a base offense level of 8 and ulti-

mately ended up with a total offense level of 22. Among other

things, it added 16 levels “because the defendant was previ-

ously deported subsequent to a conviction for sexual conduct

with a minor, the elements of which are equivalent to sexual

abuse of a minor and/or statutory rape, either of which is an

enumerated crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).” (Id. ¶ 10.) The PSR also found that

20168 UNITED STATES v. GONZALEZ-APARICIO

Gonzalez-Aparicio fell under criminal history category III. In

the end, the sentencing range was 51 to 63 months, and the

Probation Office recommended a sentence of 56 months.

The addendum dated September 29, 2009 indicated that the

defense (unlike the government) made no objections to the

PSR. However, the defense counsel did submit documentation

in anticipation of the sentencing hearing, including an untran-

slated letter in Spanish allegedly from the victim of Gonzalez-

Aparicio’s prior criminal conduct.

At the sentencing hearing conducted on November 3, 2009

(with the assistance of an interpreter), the District Court ini-

tially asked Gonzalez-Aparicio’s attorney whether there was

any legal reason why they could not go forward with sentenc-

ing. The attorney indicated that there were none. He further

noted that he had reviewed with his client “the presentence

report including the recommendation section and the adden-

dum to the report” and believed that his client adequately

understood the documents. (ER24.) Gonzalez-Aparicio then

indicated on the record that he was satisfied with his counsel’s

services, the attorney was able to answer any questions he

might have had, and the attorney discussed the PSR and its

recommendation with him. The District Court accordingly

ordered that the “presentence report is made a part of the

record” and expressly adopted its factual assertions because

“the report accurately describes the offense conduct.” (ER25.)

It then reviewed the PSR’s Guideline calculation, stating,

inter alia, that it accurately calculated a 16-level enhancement

because Gonzalez-Aparicio was previously deported follow-

ing “a conviction for sexual conduct with a minor as outlined

in paragraph 21.” (ER26.)

The defense counsel asked for “a more realistic sentence in

the neighborhood of 18 to 24 months.” (ER30.) Among other

things, he stated that “the most significant felony prior we are

here for involved a case of him being charged for basically

statutory rape.” (ER27.) In short, he explained that Gonzalez-

UNITED STATES v. GONZALEZ-APARICIO 20169

Aparicio had a consensual 6-month-long relationship when he

was 26 with a distant cousin of his common-law wife (at a

time when he was separated) who was approaching the age of

15. While the defense attorney acknowledged that the crime

“sounds” horrible and dangerous, his client was convinced

that his sentence was changed to time served in part because

the family did not want the State of Arizona to pursue

charges. (Id.) The defense counsel added that the State often

will prosecute such cases in spite of the victim’s own wishes

and went on to emphasize the fact that “the so-called victim”

actually wrote “a touching letter asking you to consider

leniency and mercy.” (ER28.)

After Gonzalez-Aparicio made a brief statement of his

own, the prosecutor concurred in the Probation Office’s sen-

tencing recommendation. Among other things, the prosecutor

noted that she was unable to obtain “the police reports on the

statutory rape case.” (ER31.) However, she challenged her

adversary’s characterization of the matter, stating, inter alia,

that it “wasn’t a Romeo/Juliet case,” that “[h]e’s 26” and

“[s]he’s at oldest 14,” and that it is “very difficult” for victims

who are also family members and who may then be pressured

by others into not pursuing charges or even writing a letter

asking for leniency. (ER32)

In its final sentencing determination, the District Court took

into consideration the Guideline calculations, the statutory

sentencing factors, and the mitigating factors offered in sup-

port of a lesser sentence (especially with respect to Gonzalez-

Aparicio’s family circumstances). The District Court specifi-

cally noted that the section 13-1405 conviction described in

Paragraph 21 of the PSR does not constitute an aggravated

felony conviction “because the sentence was not at least one

year.” (Id.) It observed, inter alia, that “[t]here’s been no

objection to the guideline calculations” and that it “basically

adopted what the probation department has proposed.”

(ER33.) Declining “to grant a departure based on the fact that

paragraph 21 is not an aggravated felony,” the District Court

20170 UNITED STATES v. GONZALEZ-APARICIO

expressly found “that it is appropriately treated as a crime of

violence, sexual conduct with a minor under 15.” (Id.) The

District Court then observed that: “We have the summary of

the incident in paragraph 21. The court finds it is appropriate

to continue to treat that as a crime of violence and that it is

an appropriate adjudication for purposes of sentencing today

of that prior conviction.” (ER33-ER34.) Ultimately, the Dis-

trict Court imposed a Guideline sentence (although one at the

low end of the range due to the mitigating factors) of 51

months of imprisonment to be followed by 3 years of super-

vised release.

II.

Gonzalez-Aparicio contends that the District Court com-

mitted reversible procedural error by applying a 16-level

increase to the offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).1 This Guideline specifically provides for

such an increase if the defendant was previously deported fol-

lowing a conviction for a “crime of violence.” The Sentencing

Commission’s commentary states that:

“Crime of violence” means any of the following

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

manslaughter, kidnapping, aggravated assault, forc-

ible 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, incom-

petent, or coerced), statutory rape, sexual abuse of a

minor, robbery, arson, extortion, extortionate exten-

sion 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.

1

It is uncontested that the District Court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231 and that we have appellate jurisdiction under

18 U.S.C. § 3742 and 28 U.S.C. § 1291.

UNITED STATES v. GONZALEZ-APARICIO 20171

U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In turn, Ariz. Rev. Stat.

§ 13-1405 currently states:

§ 13-1405. Sexual conduct with a minor; classifi-

cation; definition.

A. Any person commits sexual conduct with a

minor by intentionally or knowingly engaging in

sexual intercourse or oral sexual contact with any

person who is under eighteen years of age.

B. Sexual conduct with a minor who is under fif-

teen years of age is a class 2 felony and is punishable

pursuant to § 13-705. Sexual conduct with a minor

who is at least fifteen years of age is a class 6 felony.

Sexual conduct with a minor who is at least fifteen

years of age is a class 2 felony if the person is the

minor’s parent, stepparent, adoptive parent, legal

guardian, foster parent or the minor’s teacher or cler-

gyman or priest and the convicted person is not eligi-

ble for suspension of sentence, probation, pardon or

release from confinement on any basis except as spe-

cifically authorized by § 31-233, subsection A or B

until the sentence imposed has been served or com-

muted.

C. For the purposes of this section, “teacher”

means a certificated teacher as defined in § 15-501

or any other person who directly provides academic

instruction to pupils in any school district, charter

school, accommodation school, the Arizona state

schools for the deaf and the blind or a private school

in this state.2

2

Following Gonzalez-Aparicio’s 1999 arrest and 2000 sentence, the

Arizona Legislature amended this provision to include the language “or

the minor’s teacher or clergyman or priest,” to add subsection C, and to

substitute § 13-705” for “§ 13-604.01” in subsection B because of statu-

tory renumbering. None of these changes appear to be relevant to the cur-

rent appeal.

20172 UNITED STATES v. GONZALEZ-APARICIO

The PSR found that Gonzalez-Aparicio was convicted of a

“crime of violence” because the elements of the Arizona

offense “are equivalent to sexual abuse of a minor and/or stat-

utory rape.” (PSR ¶ 10.) Without any objection on the part of

the defense, whether in writing or at the sentencing hearing

itself, the District Court accepted this characterization of the

prior conviction as a “crime of violence” for sentencing pur-

poses.

The overarching principles of law that must be followed

here appear to be well established, although the parties vigor-

ously contest whether they have been satisfied. “When an

offense is specifically enumerated by the Application Notes as

a ‘crime of violence,’ we have consistently drawn the conclu-

sion that the offense is a per se crime of violence under the

Guidelines.” United States v. Rodriguez-Guzman, 506 F.3d

738, 741 (9th Cir. 2007) (citations omitted). In other words,

we must determine “whether the statutory definition used by

[Arizona] comports with the generic and contemporary mean-

ing of the offense of statutory rape.” Id. at 743.

This inquiry requires the courts to apply the categorical

approach or test set forth in Taylor v. United States, 495 U.S.

575 (1990). “ ‘Under the categorical approach, we “compare

the elements of the statutory definition of the crime of convic-

tion with a federal definition of the crime to determine

whether conduct proscribed by the statute is broader than the

generic federal definition.”’ ” United States v. Valencia-

Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010) (quoting

Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)),

cert. denied, 131 S. Ct. 539 (2010). “[E]ven the least egre-

gious conduct the statute [of conviction] covers must qualify.”

United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.

2006) (citing Valencia v. Gonzales, 439 F.3d 1046, 1052 &

n.3 (9th Cir. 2006)). Furthermore, the court may look only to

the fact of conviction and the statutory definition of the prior

offense. See, e.g., Valencia-Barragan, 608 F.3d at 1107.

UNITED STATES v. GONZALEZ-APARICIO 20173

Even if the pure categorical test is not satisfied, the govern-

ment may ask the court to turn to the modified categorical

approach. Where the statute of conviction is overly inclusive,

the Supreme Court allows “ ‘the sentencing court to go

beyond the mere fact of conviction.’ ” Rodriguez-Guzman

506 F.3d at 746 (quoting Taylor, 495 U.S. at 602). “The mod-

ified categorical approach simply asks, in the course of find-

ing that the defendant violated the statute of conviction, was

the factfinder actually required to find the facts satisfying the

elements of the generic offense?” United States v. Aguila-

Montes de Oca, ___ F.3d ___, 2011 WL 3506442, at *17 (9th

Cir. 2011) (en banc). “In any case requiring the application of

Taylor’s categorical approach, in the event that we determine

that the statute under which the defendant was previously

convicted is categorically broader than the generic offense,

we may apply the modified categorical approach.” Id. at *21.

Under this approach, “we determine, in light of the facts in

the judicially noticeable documents, (1) what facts the convic-

tion necessarily rested on (that is what facts the trier of fact

was actually required to find); and (2) whether these facts sat-

isfy the elements of the generic offense.” Id.

Gonzalez-Aparicio contends that the generic federal defini-

tion of “statutory rape” has, as one of its elements, proof that

there is at least a 4-year age difference between the perpetra-

tor and the victim. It is undisputed that section 13-1405 lacks

any such age difference requirement. The government argues

that, at the very least, the District Court committed no plain

error with respect to whether the generic federal definition

includes such an element. The government further acknowl-

edges that, in any case, it is necessary to turn to the modified

categorical analysis because section 13-1405(A) generally

refers to sexual conduct with “any person who is under eigh-

teen years of age” and this Court has held that the generic age

of consent for “statutory rape” purposes is 16. However, it

emphasizes that the provision goes on to state in section 13-

1405(B) that “[s]exual conduct with a minor who is under fif-

teen years of age is a class 2 felony” and that the PSR, in turn,

20174 UNITED STATES v. GONZALEZ-APARICIO

asserted that “[c]ourt records show he pleaded guilty to Count

I of an indictment charging that in November 1998 he

‘engaged in sexual intercourse or oral sexual contact with

[victim] a minor under the age of fifteen years, this refers to

the first intercourse[.]’ ” (PSR ¶ 21). Gonzalez-Aparicio, for

his part, takes issue with the government’s application of the

modified approach.

A. The Standard Of Review

[1] Under the circumstances of this appeal, the identifica-

tion of the applicable standard of review is especially impor-

tant. We generally review criminal sentences for abuse of

discretion, and we will not overturn a district court’s sentenc-

ing determination in the absence of procedural error or sub-

stantive unreasonableness. See, e.g., United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). A district court’s

interpretation and application of the Guidelines is usually

reviewed de novo. See, e.g., Aguila-Montes, ___ F.3d ___,

2011 WL 3506442, at *3; United States v. Cantrell, 433 F.3d

1269, 1279 (9th Cir. 2006) (en banc). However, it is uncon-

tested that Gonzalez-Aparicio (who was represented by coun-

sel) never objected to or otherwise called into question the

characterization of his prior Arizona conviction as a “crime of

violence.” He failed to do so either in writing or even at the

sentencing hearing itself. Understandably, the government

argues that this Court must apply the well-established plain

error standard of review with respect to alleged sentencing

errors not raised below. See, e.g., United States v. Charles,

581 F.3d 927, 932-33 (9th Cir. 2009). Gonzalez-Aparicio

asserts that the Court should not do so because we are pur-

portedly confronted with a pure question of law and the

opposing party would suffer no prejudice as a result of the

failure to raise the issue below (although he further contends

that he satisfies the plain error standard in any case).

[2] We have indicated in prior sentencing cases that we are

not limited to this standard of review where the appeal pres-

UNITED STATES v. GONZALEZ-APARICIO 20175

ents a pure question of law and there is no prejudice to the

opposing party. See United States v. Evans-Martinez, 611

F.3d 635, 642 (9th Cir. 2010), cert. denied, 131 S. Ct. 956

(2011); United States v. Saavedra-Velazquez, 578 F.3d 1103,

1106 (9th Cir. 2009), cert. denied, 130 S. Ct. 1547 (2010);

United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68

(9th Cir. 2001). In other words, we possess the discretion to

refrain from applying the default plain error standard of

review in certain circumstances. United States v. Burgum, 633

F.3d 810, 812 n.2 (9th Cir. 2011) (“To the extent we have dis-

cretion not to apply plain error review, we decline to exercise

that discretion in this instance.” (citing Evans-Martinez, 611

F.3d at 642; Echavarria-Escobar, 270 F.3d at 1267-68).) We

find that it is not appropriate to exercise this discretion in light

of the specific circumstances of the current appeal.

As we explain in further detail in the next section, there

was at the time of sentencing and still exists today confusion,

tension, and possibly even conflict in our own case law as to

whether the generic federal definition of “statutory rape”

includes a 4-year age difference element. The panels in the

decisions cited above were not confronted with such a situa-

tion (and two of the panels ultimately held that there were no

errors of law in light of prior precedent). See Evans-Martinez,

611 F.3d at 638-42 (determining sua sponte that the district

court committed procedural error by using mandatory mini-

mum sentence for one count as Guideline sentence for all

counts); Saavedra-Velazquez, 578 F.3d at 1106-10 (following

Ninth Circuit precedent to conclude that California’s defini-

tion of attempt is not broader than definition of attempt at

common law and that accordingly attempted robbery is

“crime of violence”); Echavarria-Escobar, 270 F.3d at 1267-

71 (following every other circuit court to have considered

issue to conclude that suspended sentence may constitute

aggravated felony for sentencing enhancement purposes). In

contrast, a reasoned decision from the District Court, made

after the parties have presented their respective positions,

would assist us in deciding the difficult legal question of

20176 UNITED STATES v. GONZALEZ-APARICIO

whether there is an age difference element. The failure to

object, however, means that we have been denied such valu-

able assistance. We further note that this Court relatively

recently applied the plain error standard to the defendant’s

claim, asserted for the first time on appeal, that he was not a

career offender because his prior conviction did not categori-

cally constitute a controlled substance offense. Charles, 581

F.3d at 932-36.

[3] Pursuant to the modified categorical approach, this

Court must also consider, among other things, acceptable doc-

umentation regarding Gonzalez-Aparicio’s prior Arizona con-

viction. We must go beyond an abstract legal discussion of

statutory terms and criminal elements. Accordingly, this

appeal implicates more than merely a pure question of law.

As a practical matter, the defense’s own conduct before the

District Court provides even further support for applying the

well-established plain error standard of review. In addition to

making no objection whatsoever with respect to the PSR’s

characterization of the prior conviction as a “crime of vio-

lence,” the defense essentially took this characterization as a

“given” at the sentencing hearing and even went so far as to

admit on the record that his client was 26 years old at the time

of the offense, that his “girlfriend” was under the age of 15,

and that the prior felony “involved a case of him being

charged for basically statutory rape.” (ER27.) The defense

counsel specifically asked for a sentence, based, inter alia, on

the purported facts and circumstances of the prior conviction,

that was still significantly higher than the sentencing range

that would have applied in the absence of any “crime of vio-

lence” enhancement (i.e., he asked for a sentence in the

“neighborhood” of 18 to 24 months (ER32), even though the

applicable range without the 16-level increase would have

been apparently only 2 to 8 months).

While such admissions and conduct may be insufficient to

satisfy the categorical or modified categorical tests them-

UNITED STATES v. GONZALEZ-APARICIO 20177

selves, they nevertheless indicate that we should decline to

exercise our discretion to apply a de novo standard of review.

We further note that, in contrast to Gonzalez-Aparicio, the

defendant in Saavedra-Velazquez did unsuccessfully argue

before the district court, admittedly on different grounds than

he raised on appeal, that the prior conviction “was not, cate-

gorically, a ‘crime of violence’ for the purposes of U.S.S.G.

§ 2L1.2 and that the 16-level upward adjustment should not

be applied.” 578 F.3d at 1105. We further add that, if the

defense had properly raised this objection, the government

may have then obtained and submitted further documentation

from the state court proceeding that could clearly be consid-

ered in any modified categorical analysis. Accordingly, the

government has suffered prejudice here.

Under the plain error standard of review, the appellant must

show that: (1) there was error; (2) the error committed was

plain; (3) the error affected substantial rights; and (4) the error

seriously affected the fairness, integrity, or public reputation

of judicial proceedings. See, e.g., United States v. Olano, 507

U.S. 725, 732 (1993); Charles, 581 F.3d at 933. To be plain,

the error must be clear or obvious, and an error “ ‘cannot be

plain where there is no controlling authority on point and

where the most closely analogous precedent leads to conflict-

ing results.’ ” Charles, 581 F.3d at 933-34 (quoting United

States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003)).

“Plain error, as we understand that term, is error that is so

clear-cut, so obvious, a competent district judge should be

able to avoid it without benefit of objection.” United States v.

Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (citing United

States v. Frady, 456 U.S. 152, 163 (1982)). When the state of

the law is unclear at the time of trial and is then clarified by

subsequent authority, the district court’s error is still not con-

sidered plain. See, e.g., id. Therefore, plain error “normally

means error plain at the time the district court made the

alleged mistake.” Id. However there is an exception to this

general principle: “ ‘[W]here the law at the time of trial was

settled and clearly contrary to the law at the time of appeal[,]

20178 UNITED STATES v. GONZALEZ-APARICIO

it is enough that an error be “plain” at the time of appellate

consideration.’ ” Id. (quoting Johnson v. United States, 520

U.S. 461, 468 (1997)).

B. The Pure Categorical Approach

Even assuming arguendo that the generic crime of “statu-

tory rape” includes a 4-year age difference requirement (or

any age difference requirement at all), we determine that any

error regarding this element would not be “so clear-cut” and

“so obvious” that “a competent district judge should be able

to avoid it without benefit of objection.” Turman, 122 F.3d at

1170. There is (and has been since before the District Court

sentenced Gonzalez-Aparicio) some confusion, tension, and

possibly even conflict in our own case law as to whether the

generic crime includes this particular element.

We begin with our ruling in United States v. Gomez-

Mendez, 486 F.3d 599 (9th Cir. 2007). In this case, the defen-

dant argued that the district court improperly applied the 16-

level enhancement based on a prior conviction under section

261.5(d) of the California Penal Code, which stated, inter alia,

that “[a]ny person 21 years of age or older who engages in an

act of unlawful sexual intercourse with a minor who is under

16 years of age is guilty of either a misdemeanor or a felony.”

Id. at 600-03. Affirming the sentencing enhancement, we

stated, inter alia, that “[t]he term ‘statutory rape’ is ordinarily,

contemporarily, and commonly understood to mean the

unlawful sexual intercourse with a minor under the age of

consent specified by state statute.” Id. at 603 (footnote omit-

ted). In support of this definition, we specifically quoted the

definitions of “statutory rape” in Black’s Law Dictionary, id.

at 603 n.7 (quoting Black’s Law Dictionary 1288 (8th ed.

2004)), as well as in an ALR annotation, id. (quoting Susan

M. Kole, Annotation, Statute Protecting Minors in a Specified

Age Range from Rape or Other Sexual Activity as Applicable

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

UNITED STATES v. GONZALEZ-APARICIO 20179

5th 856, § 2[a] (1994)).) It must be noted that none of these

definitions contain any age difference requirement. Id.

We returned to the definition of “statutory rape” in United

States v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).

The defendant challenged the application of the 16-level

enhancement based on his prior conviction under section

261(c) of the California Penal Code. Id. at 740. This provision

states in relevant part that “[a]ny person who engages in an

act of unlawful sexual intercourse with a minor who is more

than three years younger than the perpetrator is guilty of

either a misdemeanor or a felony,” and California law then

defines a minor as a “person under the age of 18 years.” Id.

at 741. In Gomez-Mendez, “[w]e went on to define statutory

rape as ‘ordinarily, contemporarily, and commonly under-

stood to mean the unlawful sexual intercourse with a minor

under the age of consent specified by the state statute.” Id. at

745 (quoting Gomez-Mendez, 486 F.3d at 603). But the

Gomez-Mendez panel purportedly “did not answer the dispo-

sitive question presented here: what is the ordinary, contem-

porary, and common meaning of the term ‘minor’ in the

context of a statutory rape law relied on for a sentencing

enhancement?” Id. (footnote omitted). The Rodriguez-

Guzman panel majority, based on an examination of the

Model Penal Code, federal criminal law (specifically 18

U.S.C. § 2243(a) (“Sexual abuse of a minor or ward”)), and

the approach of the overwhelming majority of the states to the

age of consent issue (as addressed in Judge Thomas’s concur-

ring opinion in the subsequently vacated panel ruling in

Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007)),

concluded that “the term ‘minor’ in the context of a statutory

rape law means a person under sixteen years of age.” 506

F.3d at 745 (footnote omitted). We specifically observe that

both the Model Penal Code and 18 U.S.C. § 2243(a), as

quoted in Rodriguez-Guzman, require that the victim be youn-

ger than 16 and that there be at least a 4-year age difference

between the perpetrator and the victim. Id. In any case, this

Court further explained that the prior ruling “is . . . not in con-

20180 UNITED STATES v. GONZALEZ-APARICIO

flict with our decision here” because the statutory provision

addressed in Gomez-Mendez only criminalizes sexual inter-

course with a minor under the age of 16. Id. at 745 n.6; see

also, e.g., Aguila-Montes, ___ F.3d ___, 2011 WL 35206442,

at *8 (“In [Rodriguez-Guzman], we held that the generic defi-

nition of ‘statutory rape’ requires that the victim be under the

age of sixteen.” (citing Rodriguez-Guzman, 506 F.3d at 746)).

[4] In 2008, the en banc Court in Estrada-Espinoza v.

Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), specifi-

cally considered the following question: “[W]hether a convic-

tion under any of four California statutory rape provisions—

California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1),

289(h)—constitutes the aggravated felony ‘sexual abuse of a

minor,’ within the meaning of 8 U.S.C. § 1101(a)(43).”3 Id. at

1150. This Court (in a unanimous opinion written by Judge

Thomas) answered this question in the negative because each

California statutory provision defines conduct that is broader

than the generic federal definition of “sexual abuse of a

minor.” Id. at 1150-60.

We began our categorical analysis by observing that we

were “[f]ortunately” not confronted with an absence of spe-

cific congressional guidance with respect to the applicable

elements of the crime “because Congress has enumerated the

elements of the offense of ‘sexual abuse of a minor’ at 18

U.S.C. § 2243.” Id. at 1152. “Thus the generic offense of

‘sexual abuse of a minor’ requires 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.” Id.

We then engaged in a rather lengthy (if purportedly unneces-

sary) discussion of current criminal law in order to confirm

3

Estrada-Espinoza was found removable as an aggravated felon under

8 U.S.C. § 1227(a)(2)(A)(iii). Estrada-Espinoza, 546 F.3d at 1151. 8

U.S.C. § 1101(a)(43)(A) “defines ‘aggravated felony’ as ‘murder, rape, or

sexual abuse of a minor.’ ” Id. at 1151.

UNITED STATES v. GONZALEZ-APARICIO 20181

“that the congressional definition comports with ‘the ordinary,

contemporary, and common meaning of the words’ of the

term.” Id. at 1152-53 (quoting United States v. Baron-Medina,

187 F.3d 1144, 1146 (9th Cir. 1999)). In the process, we

turned, inter alia, to state “statutory rape” provisions, the

Model Penal Code’s “statutory rape” definition, and prior

case law (and frequently distinguished between sexual activ-

ity with younger children and sexual activity with older ado-

lescents). Id. at 1153-55. In explaining why there was no need

for the aggravated felony provision to include an express stat-

utory reference to § 2243, we specifically observed that “sex-

ual abuse of a minor” offenses under federal and state law

“define what would, in more common parlance, be referred to

as statutory rape.” Id. at 1156; see also, e.g., Aguila-Montes,

___ F.3d ___, 2011 WL 35206442, at *9 (We defined ‘sexual

abuse of a minor’ by reference to the federal statutory rape

statute, 18 U.S.C. § 2243, and held that this definition con-

tains ‘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.‘” (quoting Estrada-Espinoza, 546

F.3d at 1152)).

Even outside of the narrow “statutory rape” context, subse-

quent panel rulings have proceeded to distinguish this en banc

opinion. In the process, we have recognized that there are now

two generic federal definitions of “sexual abuse of a minor”

in this Circuit: (1) the so-called “statutory rape crimes only”

definition announced by the en banc Court in Estrada-

Espinoza and understood as covering offenses involving both

older adolescents and younger children; and (2) the pre-

existing definition dealing with sexual crimes against younger

children, which are considered to be per se abusive. See

United States v. Farmer, 627 F.3d 416, 417-22 (9th Cir.

2010), pet. for cert. filed, (Mar. 17, 2011) (No. 10-9620);

Valencia-Barragan, 608 F.3d at 1106-08; United States v.

Castro, 607 F.3d 566, 567-70 (9th Cir. 2010); Rivera-Cuartas

v. Holder, 605 F.3d 699, 701-02 (9th Cir. 2010); Pelayo-

20182 UNITED STATES v. GONZALEZ-APARICIO

Garcia v. Holder, 589 F.3d 1010, 1012-16 (9th Cir. 2009);

United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir.

2009), cert. denied, 130 S. Ct. 1545 (2010).

For example, we determined in Rivera-Cuartas v. Holder,

605 F.3d 699 (9th Cir. 2010), that the Arizona statutory provi-

sion at issue here does not satisfy either of these “sexual

abuse of a minor” definitions, id. at 702. In this immigration

proceeding, we held that “section 13-1405 does not meet the

definition for statutory rape crimes set forth in Estrada-

Espinoza for two reasons: (1) it lacks the age difference

requirement; and (2) is broader than the generic offense with

respect to the age of the minor because the statute applies to

persons under eighteen years of age.” Id. On the other hand,

“a crime that is not a statutory rape crime under Estrada-

Espinoza may still meet the federal generic offense of ‘sexual

abuse of a minor’ if (1) the conduct prohibited by the criminal

statute is sexual, (2) the statute protects a minor, and (3) the

statute requires abuse.” Id. (citing Medina-Villa, 567 F.3d at

513). The abuse element is met if the statute prohibits behav-

ior that causes “ ‘physical or psychological harm in light of

the age of the victim in question.’ ” Id. (quoting same).

Applying this other definition, we held that section 13-1405

lacks the critical “abuse” element. Id. However, the Rivera-

Cuartas panel only considered the “aggravated felony” stat-

ute, which—unlike the Guideline commentary at issue here—

does not include any express “statutory rape” language.

[5] To date, we have yet to consider whether—and how

Estrada-Espinoza should be applied in defining the generic

crime of “statutory rape” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

In fact, this Court actually amended two recent rulings to

eliminate such “statutory rape” discussions.

In United States v. Castro, 607 F.3d 566 (9th Cir. 2010),

the defendant challenged a 16-level sentencing enhancement

because of his prior conviction under section 288(c)(1) of the

California Penal Code, “which criminalizes lewd or lascivious

UNITED STATES v. GONZALEZ-APARICIO 20183

acts on a child of 14 or 15 years by a person at least ten years

older than the child,” id. at 567. Applying the two generic fed-

eral definitions of “sexual abuse of a minor,” id. at 567-70, we

held that “section 288(c)(1) is broader than the generic

offense of sexual abuse of a minor and that it therefore is not

categorically a crime of violence.” Id. at 567-68. In this

amended opinion, we also explained that “[w]e do not address

whether section 288(c)(1) constitutes the generic offense of

‘statutory rape’ and therefore constitutes a ‘crime of vio-

lence,’ see U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii), because the par-

ties have not raised that issue.” Id. at 570 n.2.

Likewise, in United States v. Valencia-Barragan, 608 F.3d

1103 (9th Cir.), cert. denied, 131 S. Ct. 539 (2010), the defen-

dant challenged a sentencing enhancement on the basis of a

prior conviction under section 9A.44.076(1) of the Washing-

ton Revised Code, id. at 1106. This provision provides that

“[a] person is guilty of rape of a child in the second degree

when the person has sexual intercourse with another who is

at least twelve years old but less than fourteen years old and

not married to the perpetrator and the perpetrator is at least

thirty-six months older than the victim.” Id. We concluded

that this conviction fell under the “abuse” definition of “sex-

ual abuse of a minor.” Id. at 1106-08. Although the district

court ruled that the prior conviction actually qualified as “stat-

utory rape,” we stated in our amended ruling that, “[b]ecause

we conclude that Valencia-Barragan’s conviction under sec-

tion 9A.44.076(1) criminalizes conduct that satisfies the first

federal generic definition of ‘sexual abuse of a minor,’ we do

not address whether his conviction also satisfies the second

generic federal definition or whether it constitutes ‘statutory

rape.’ ” Id. at 1107.

Gonzalez-Aparicio, although he never raised the issue

below, now asks this Court to determine whether his prior

conviction under section 13-1405 “constitutes ‘statutory

rape’ ” and specifically whether the generic federal definition

of “statutory rape” includes a 4-year age difference element.

20184 UNITED STATES v. GONZALEZ-APARICIO

Id. We acknowledge that this is a difficult issue, further com-

plicated by our own prior case law. For instance, our prior

decisions in Gomez-Mendez and Rodriguez-Guzman did

appear to offer a generally applicable definition of “statutory

rape,” which in turn lacks any age difference element. How-

ever, the respective defendants evidently never raised any age

difference issue on appeal (and the statutory provision in

Gomez-Mendez actually requires the perpetrator to be at least

21 years of age and the victim to be younger than 16 while

the provision at issue in Rodriguez-Guzman contains a 3-year

age difference requirement). Nevertheless, we are still unable

to conclude that the District Court committed any plain error

here.

In particular, Estrada-Espinoza actually defined the phrase

“sexual abuse of a minor” as it is used in the immigration “ag-

gravated felony” context. In contrast, the Guideline commen-

tary at issue here expressly lists both “sexual abuse of a

minor” as well as “statutory rape” as “crimes of violence.” In

general, courts should attempt to avoid an interpretation ren-

dering language superfluous. Cf., e.g., Medina-Villa, 567 F.3d

at 515 (stating that, “if we were to define ‘sexual abuse of a

minor’ in U.S.S.G. § 21:1.2 as limited to § 2243, we would

eliminate the need for the separate and independent example

of ‘statutory rape’ as a ‘crime of violence.’ ”). The Estrada-

Espinoza opinion also never discussed or even cited to our

prior “statutory rape” decisions in Gomez-Mendez and

Rodriguez-Guzman. We further add that, even in the limited

“sexual abuse of a minor” context, the en banc ruling and the

subsequent line of case law have been the target of criticism.

In a special concurrence in United States v. Farmer, 627 F.3d

416 (9th Cir. 2010), pet. for cert. filed, (Mar. 17, 2011) (No.

10-9620), Judge Bybee, joined by Judge Noonan, expressed

serious doubts about, among other things, the existence of two

definitions for the same offense, id. at 424-26 (Bybee, J., spe-

cially concurring).

[6] In the end, we are confronted here with serious prob-

lems that arguably merit en banc consideration and that, at the

UNITED STATES v. GONZALEZ-APARICIO 20185

very least, should be resolved only after the defendant prop-

erly raises an objection before the district court and the dis-

trict court thereby has a real opportunity to make an informed

and reasoned ruling that could assist any ultimate resolution.

At the very least, it cannot be said that any error here was so

obvious under the governing case law at the time of sentenc-

ing (or even now) that “a competent district judge should be

able to avoid it without benefit of objection.” Turman, 122

F.3d at 1170 (citation omitted).

C. The Modified Categorical Approach

While section 13-1405(A) prohibits sexual conduct with

“any person who is under eighteen years of age,” it is well

established that the generic age of consent for “statutory rape”

purposes is 16. See, e.g., Rodriguez-Guzman, 506 F.3d at 743-

46. The government turns to the modified categorical

approach to defend the District Court’s characterization of

Gonzalez-Aparicio’s prior conviction as “statutory rape” and

therefore a “crime of violence” for sentencing purposes. We

determine that the District Court committed no plain error

with respect to the application of the modified categorical

approach.

We may rely “only on documents that give us the ‘certainty

of a generic finding,’ ” such as “ ‘the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.’ ” Aguila-Montes, ___ F.3d

___, 2011 WL 3506442, at *17 (citations omitted). Accord-

ingly, statements or admissions by the defendant’s counsel at

the sentencing hearing are not judicially noticeable. See, e.g.,

Rodriguez-Guzman, 506 F.3d at 747 n.9. Likewise, a sentenc-

ing court may not turn to the PSR for a narrative description

of the underlying facts of the prior conviction. See, e.g.,

United States v. Pimentel-Flores, 339 F.3d 959, 967-69 (9th

Cir. 2003) (finding plain error where, inter alia, district court

relied solely on factual description recited in PSR and govern-

20186 UNITED STATES v. GONZALEZ-APARICIO

ment failed to submit adequate documentation); United States

v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en

banc) (“Instead, we have held that a presentence report recit-

ing the facts of the crime is insufficient evidence to establish

that the defendant pled guilty to the elements of a crime when

the statute of conviction is broader than the generic defini-

tion.” (citing United States v. Franklin, 235 F.3d 1165, 1172

(9th Cir. 2000); United States v. Potter, 895 F.2d 1231, 1237-

38 (9th Cir. 1990)).

[7] Nevertheless, the PSR prepared in this proceeding did

more than provide a mere factual narrative. It instead evi-

dently quoted from state court documentation by stating that

“[c]ourt records show he pleaded guilty to Count 1 of an

indictment charging that in November 1998 he ‘engaged in

sexual intercourse or oral sexual contact with [victim] a minor

under the age of fifteen years, this refers to the first inter-

course[.]’ ” (PSR ¶ 21.) In turn, the Arizona statutory provi-

sion at issue here expressly classifies sexual conduct with a

minor under 15 as a class 2 felony. It bears repeating that, if

the defense had raised some sort of objection, the government

could then have presented in the sentencing proceeding the

actual documentation from the state court. Under these cir-

cumstances, there was no plain error. See, e.g., United States

v. Kelly, 422 F.3d 889, 895-96 (9th Cir. 2005) (“A presen-

tence report (“PSR”) is insufficient to establish the elements

of the crime if ‘all it does is recite the facts of the crime as

alleged in the charging papers’ without indicating whether the

information came ‘from a source that we have previously

deemed acceptable, such as a signed plea agreement, a tran-

script of the plea hearing, or a judgment of conviction.’ ”

(quoting Corona-Sanchez, 291 F.3d at 1211)); Corona-

Sanchez, 291 F.3d at 1212 (“We need not decide in this case

whether information contained in a presentence report from

an identified, acceptable source can constitute evidence under

Taylor’s modified categorical approach”).

UNITED STATES v. GONZALEZ-APARICIO 20187

III.

For the foregoing reasons, Gonzalez-Aparicio fails to sat-

isfy the applicable plain error standard of review with respect

to the District Court’s determination that he was previously

convicted of a “crime of violence,” namely “statutory rape,”

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).4 We further con-

clude that the District Court did not otherwise abuse its dis-

cretion or impose a sentence that was either procedurally

erroneous or substantively unreasonable. See, e.g., Carty, 520

F.3d at 993. Contrary to Gonzalez-Aparicio’s assertions on

appeal, the District Court provided a thorough explanation for

its determination, appropriately responded to the various argu-

ments made by the defense, did not give undue weight to the

Guidelines, and reasonably took into account Gonzalez-

Aparicio’s prior record as well as several mitigating factors.

We therefore will affirm the sentence entered by the Dis-

trict Court.

AFFIRMED.

THE MOTION BY APPELLANT FOR CORREC-

TION OF THE RECORD IS DENIED.

TASHIMA, Circuit Judge, dissenting:

Today the majority announces a new and startling method

of selecting a standard of review, one in which the panel, at

its sole option, selects which standard of review to apply.

Because this standard of review is no standard at all, I respect-

fully dissent. If the majority had applied our long-established

4

We accordingly need not reach the government alternative theory that

the statute of conviction constitutes a “forcible sexual offense[ ]” under

the Guideline commentary.

20188 UNITED STATES v. GONZALEZ-APARICIO

precedents, it would be required to reverse and remand for

resentencing.

I.

This is a sentencing case. As in all sentencings, the district

court was first required to calculate the correct advisory

guidelines sentencing range. See Gall v. United States, 552

U.S. 38, 49 (2007); United States v. Carty, 520 F.3d 984, 991

(9th Cir. 2008) (en banc). It did not do so. Defendant-

appellant Gonzalez-Aparicio (“Gonzalez”) pled guilty to one

count of illegal entry under 8 U.S.C. § 1326(b)(2). The sen-

tencing court applied a 16-point “crime of violence” enhance-

ment, U.S.S.G. § 2L1.2(b)(1)(A)(ii), that raised Gonzalez’s

total offense level from 6 to 22.1 At Criminal History Cate-

gory III, this raised his corresponding Guidelines range from

2-8 months to 51-63 months. The district court imposed a sen-

tence of 51 months.

II.

Under the pure categorical approach set forth in Taylor v.

United States, 495 U.S. 575 (1990), the correctness of Gonza-

lez’s sentence turns on the following issue: does the generic

definition of statutory rape contain an age difference element?

The majority invokes plain error review to avoid answering

this key question, even though the question is a pure question

of law. If the generic definition includes an age difference ele-

ment, then Gonzalez’s state conviction cannot constitute stat-

utory rape according to the categorical approach, because, as

the majority concedes, see Maj. Op. at 20173, the Arizona

statute under which he was convicted, Ariz. Rev. Stat. § 13-

1405, does not include an age difference element. When we

analyze the statute under the Taylor2 categorical analysis, the

underlying facts do not matter.

1

The 16-point enhancement was based on an Arizona state conviction

for sexual conduct with a minor under Ariz. Rev. Stat. § 13-1405.

2

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

UNITED STATES v. GONZALEZ-APARICIO 20189

The majority’s application of plain error review is contrary

to our well-established rule that a pure question of law, even

if unpreserved, is reviewed de novo absent prejudice to the

opposing party. See United States v. Evans-Martinez, 611

F.3d 635, 642 (9th Cir. 2010); United States v. Saavedra-

Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (holding that

“whether California’s definition of ‘attempt’ is broader than

the common law definition, such that attempted robbery is not

a ‘crime of violence’ ” is a purely legal question to which

plain error review does not apply); Huerta-Guevara v. Ash-

croft, 321 F.3d 883, 886 (9th Cir. 2003) (declining to apply

plain error review to the purely legal question of whether a

conviction constitutes an “aggravated felony” under the cate-

gorical approach); United States v. Echavarria-Escobar, 270

F.3d 1265, 1267-68 (9th Cir. 2001) (declining to apply plain

error review where the defendant “argue[d] for the first time

on appeal that the sentence imposed for his Nevada state theft

offense [could not] constitute an aggravated felony for pur-

poses of enhancing his [ ] sentence . . . .”).3

The majority contends that plain error review applies

because Gonzalez’s failure to object caused the government

prejudice by depriving it of the opportunity to submit “further

documentation from the state court proceeding that could

clearly be considered in any modified categorical analysis.”

Maj. Op. at 20177. Again, the issue under the categorical

approach is whether generic statutory rape contains an age

difference element. If the answer is yes, then Gonzalez’s con-

viction does not qualify as a matter of law under the categori-

cal test. “Further documentation of the state court proceeding”

3

In United States v. Charles, 581 F.3d 927, 933 (9th Cir. 2009), upon

which the majority relies, the court applied plain error review to the legal

question of whether the defendant’s state conviction was “categorically a

controlled substance offense.” But Charles never considered the “pure

question of law” exception to plain error review, apparently because the

defendant did not raise it. See id. at 932-33. Charles therefore does not

conflict with the above authority.

20190 UNITED STATES v. GONZALEZ-APARICIO

could not affect the analysis. Gonzalez’s failure to object did

not prejudice the government with regards to this question.

Most perplexingly, however, the majority also justifies its

application of plain error review as an exercise of its pur-

ported “discretion” to select the appropriate standard of

review. Maj. Op. at 20174-75. The idea that we have discre-

tion to choose between standards of review is antithetical to

the very concept of a standard of review. If we can pick what-

ever standard suits us, free from the direction of binding prin-

ciples, then there is no standard at all. Our cases that apply the

“pure question of law” exception to plain error review do not

engage in any such discretionary selection. Rather, the cases

limit themselves to asking whether the relevant issue is purely

legal and whether the opposing party suffers no prejudice. If

the answer to both questions is yes, our cases invariably have

applied de novo review. See Evans-Martinez, 611 F.3d at 642;

Saavedra-Velazquez, 578 F.3d at 1106; Huerta-Guevara, 321

F.3d at 886; Echavarria-Escobar, 270 F.3d at 1267-68.

Rather than recognizing these cases as binding, the major-

ity comes up with a newly-minted rule under which it grants

itself discretion over which standard of review to apply. It

does this by seizing upon the slender reed of a one-sentence

footnote that contains no analysis of the “pure question of

law” exception to plain error review. See United States v. Bur-

gum, 633 F.3d 810, 812 n.2 (9th Cir. 2011) (“To the extent

we have discretion not to apply plain error review, we decline

to exercise that discretion in this instance.”). As is plainly

clear from its language, the footnote does not actually state

that appellate courts have discretion to choose between stan-

dards of review. And the footnote certainly does not overrule

our earlier decisions by granting courts discretion to apply

anything other than de novo review where an unpreserved

question is purely legal and there is no prejudice to the oppos-

ing party. The majority overrides this clear line of precedent

by simple fiat, “find[ing] that it is not appropriate to exercise

UNITED STATES v. GONZALEZ-APARICIO 20191

this discretion in light of the specific circumstances of the cur-

rent appeal.” Maj. Op. at 20175.

In announcing its newly-minted rule giving itself the dis-

cretionary option of which standard of review to apply, the

majority simply ignores our long-established case law that

pure questions of law are an exception to plain error review.

Because our case law so dictates, I would review de novo the

purely legal question of whether the statute of conviction

lacks an element of the generic offense in this case.

III.

Turning to that question of law, although we have never

squarely decided whether generic statutory rape includes an

age difference element, we have come close. Estrada-

Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en

banc), held that “sexual abuse of a minor” requires an age dif-

ference element. Id. at 1152 (“[T]he generic offense of ‘sex-

ual abuse of a minor’ requires 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.”). The court

relied on sources that defined “statutory rape,” id. at 1153,

because it determined that offenses titled “sexual abuse of a

minor” in state and federal criminal codes “define what

would, in more common parlance, be referred to as statutory

rape.” Id. at 1156. In other words, Estrada-Espinoza’s holding

that “sexual abuse of a minor” contains an age difference ele-

ment is based on the conclusion that generic statutory rape

contains an age difference element.4

4

This conclusion about generic statutory rape comports with the prevail-

ing definition of the crime. See United States v. Osborne, 551 F.3d 718,

719-720 (7th Cir. 2009) (“Many criminal laws, of which statutory rape is

the best-known example, rest on a belief that a combination of youth and

age difference prevents an effective consent to sexual conduct.”) (empha-

sis added); Model Penal Code § 213.3 (2001) (defining “Corruption of

20192 UNITED STATES v. GONZALEZ-APARICIO

We subsequently emphasized this point by declaring that

Estrada-Espinoza “was intended to define statutory rape laws

only,” and that a separate generic definition of “sexual abuse

of a minor” applies to laws that require abuse. United States

v. Medina-Villa, 567 F.3d 507, 515 (9th Cir. 2009); see also

United States v. Valencia-Barragan, 608 F.3d 1103, 1107 n.2

(9th Cir. 2010) (“Although Estrada-Espinoza [purported to]

defin[e] ‘sexual abuse of a minor’ generally, we subsequently

clarified that the Estrada-Espinoza definition ‘encompassed

statutory rape crimes only.’ ”) (citation omitted).

Although it refuses to decide the issue, the majority sug-

gests that the generic crime of statutory rape might not con-

tain an age difference requirement, Estrada-Espinoza

notwithstanding, because the Sentencing Guidelines enumer-

ate “sexual abuse of a minor” and “statutory rape” separately.

Maj. Op. at 20183; see Medina-Villa, 567 F.3d at 515 (“When

interpreting the Guidelines, we must give meaning to all its

words and render none superfluous.”). The implication is that

because Estrada-Espinoza defines “sexual abuse of a minor”

to mean “statutory rape,” we should define “statutory rape” to

mean something other than “statutory rape” to avoid render-

ing the term superfluous. That reasoning is backwards. More-

over, Medina-Villa recognizes that the existence of the second

definition of “sexual abuse of a minor” — covering laws that

require abuse — avoids rendering the term “statutory rape”

redundant. See 567 F.3d at 515 (“[I]f we were to define ‘sex-

Minors and Seduction” to require that the “actor is at least [four] years

older than the other person”); “Statutory Rape: A Guide to State Laws and

Reporting Requirements,” The Lewin Group, prepared for the Department

of Health and Human Services (Dec. 15, 2004), http://www.lewin.com/

content/publications/3068.pdf (“In 27 states, the legality of engaging in

sexual intercourse with minors is, at least in some circumstances, based on

the difference in age between the two parties.”); Charles A. Phillips, Chil-

dren, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton

Hall Legis. J. 1, 62 (1997) (“An element present in most states is an age

difference between the parties.”).

UNITED STATES v. GONZALEZ-APARICIO 20193

ual abuse of a minor’ in U.S.S.G. § 2L1.2 as limited to [the

Estrada-Espinoza definition], we would eliminate the need

for the separate and independent example of ‘statutory rape’

as a ‘crime of violence.’ ”) (emphasis added). In other words,

in the context of U.S.S.G. § 2L1.2 — which, in contrast to the

immigration provision that Estrada-Espinoza interprets, enu-

merates the terms “sexual abuse of a minor” and “statutory

rape” separately — the two generic definitions of “sexual

abuse of a minor” correspond to separate terms. The Medina-

Villa definition corresponds to “sexual abuse of a minor” and

the Estrada-Espinoza definition corresponds to “statutory

rape.” There is no overlap.5

The majority also implies that United States v. Gomez-

Mendez, 486 F.3d 599 (9th Cir. 2007), which predates

Estrada-Espinoza, suggests that generic statutory rape does

not contain an age difference element. See Maj. Op. at

20178-79, 20184. But Gomez-Mendez did not address the age

difference issue. The case concerned a state law prohibiting

anyone 21 or older from having sexual intercourse with any-

5

The government argues briefly that even if § 13-1405 does not consti-

tute statutory rape, it is still a “crime of violence” because it meets the def-

inition of “forcible sex offense,” which the Guidelines commentary lists

as a separate qualifying offense. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2009)

(“‘Crime of violence’ means any of the following . . . 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 . . . .”). But this 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? Moreover, when the Sentencing Commission added the paren-

thetical language defining “forcible sex offenses” to include crimes

involving legally invalid consent, it did so to overrule cases that had

excluded from the generic definition rapes of mentally impaired or intoxi-

cated persons and rapes accomplished by coercive non-violent threats

(e.g., an employer’s threat “to fire a subordinate”). See Notice of submis-

sion to Congress of amendments to the sentencing guidelines effective

November 1, 2008, 73 Fed. Reg. 26924, 26935 (May 9, 2008). The paren-

thetical language does not target statutory rape.

20194 UNITED STATES v. GONZALEZ-APARICIO

one under 16. Although the court declared that statutory rape

is “ordinarily, contemporarily, and commonly understood to

mean the unlawful sexual intercourse with a minor under the

age of consent,” it clearly did not have to consider whether

the generic definition included an age difference element,

because the state law satisfied that requirement. See Gomez-

Mendez, 486 F.3d at 603. In Estrada-Espinoza, on the other

hand, the age difference element was dispositive. 546 F.3d at

1159.

In sum, under Estrada-Espinoza, § 13-1405 does not meet

the generic definition of statutory rape because it does not

contain an age difference requirement.

IV.

If the pure categorical test is not satisfied, we may then

apply the modified categorical approach.6 “Under the modi-

fied categorical approach, we determine, in light of the facts

in the judicially noticeable documents, (1) what facts the con-

viction necessarily rested on (that is, what facts the trier of

fact was actually required to find); and (2) whether these facts

satisfy the elements of the generic offense.” Aguila-Montes de

Oca, 2011 WL 3506442, at *21 (9th Cir. 2011). Plain error

6

Until recently, our inquiry would have ended here. In Navarro-Lopez

v. Gonzalez, 503 F.3d 1063 (9th Cir. 2007) (en banc), we held that

“[w]hen the crime of conviction is missing an element of the generic crime

altogether, we can never find that a jury was actually required to find all

the elements of the generic crime.” Id. at 1073 (internal quotation marks

omitted). In such cases, “the modified categorical approach [was] inappo-

site.” Rivera-Cuartas v. Holder, 605 F.3d 699, 702 (9th Cir. 2010) (citing

Navarro-Lopez, 503 F.3d at 1073). Sitting en banc, however, we recently

overruled our holding in Navarro-Lopez and concluded that the modified

categorical approach does apply in “missing element” cases. United States

v. Aguila-Montes de Oca, 2011 WL 3506442, at *21 (9th Cir. Aug. 11,

2011) (en banc).

UNITED STATES v. GONZALEZ-APARICIO 20195

is the correct standard of review for an unpreserved sentenc-

ing error under this prong of our analysis.7

Although § 13-1405 does not meet the generic definition of

statutory rape because it lacks an age difference element,

Gonzalez’s sentence may still be correct under the modified

categorical approach if the records of conviction show that the

finder of fact was “actually required” to find that the requisite

age difference existed between him and the victim. The judi-

cially noticeable records of Gonzalez’s conviction do not

show that his conviction “necessarily rested” on the finding of

an age difference.8 Id. at *18. As a result, his conviction does

not qualify as a “crime of violence” under the modified cate-

gorical approach. Further, it was plain error to conclude that

Gonzalez’s conviction qualifies as a crime of violence under

the modified categorical approach because the majority’s

holding is in contravention of clear precedent.

The Arizona statute is over-inclusive: it defines minors as

persons under 18, while the generic crime defines minors as

persons under 16. Compare Ariz. Rev. Stat. § 13-1405, with

Rodriguez-Guzman, 506 F.3d at 745 (“[T]he term ‘minor’ in

the context of a statutory rape law means a person under six-

teen years of age.”). The majority holds that Gonzalez’s con-

viction qualifies despite the statute’s overinclusiveness

because he pled guilty to a crime involving a 14 year-old vic-

tim. But the only factual support for this conclusion comes

7

The “pure question of law” exception does not apply here because

application of the modified categorical approach requires us to go beyond

purely legal questions to review the records of conviction.

8

In discussing its purported discretion to choose a standard of review,

the majority notes that defense counsel stated on the record that his client

was 26 years old and his “girlfriend” was under the age of 15 at the time

of the offense. Maj. Op. at 20176. As the majority recognizes, “statements

or admissions by the defendants’ counsel at the sentencing hearing are not

judicially noticeable” and can not establish elements of a crime for the

purposes of the modified categorical test. Maj. Op. at 20185 (citing United

States v. Rodriguez-Guzman, 506 F.3d 738, 747 n.9 (9th Cir. 2007)).

20196 UNITED STATES v. GONZALEZ-APARICIO

from the Presentence Investigation Report (“PSR”), the rele-

vant portion of which reads as follows: “Court records show

[Gonzalez] pleaded guilty to Count 1 of an indictment charg-

ing that in November 1998 he ‘engaged in sexual intercourse

or oral sexual contact with [victim] a minor under the age of

fifteen years . . . .’ ” (Emphasis added.) The government sub-

mitted no other documentation of the conviction.

Reliance on the PSR is plainly erroneous. In United States

v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc),

we held that a PSR stating that the defendant had pleaded

guilty to facts contained in charging papers did not suffice to

establish the elements of the defendant’s conviction for pur-

poses of the modified categorical approach. Id. at 1212

(“Corona-Sanchez’s presentence report is insufficient evi-

dence because all it does is recite the facts of the crimes as

alleged in the charging papers. That it also notes that he ‘P/G

as charged’ does not remedy the situation, because it does not

indicate the source of this information.”), superseded on other

grounds by U.S.S.G. § 2L1.2, cmt. n.4 (2002). Similarly, in

United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.

2003), we held that the district court committed plain error by

relying solely on the PSR to find that the defendant’s convic-

tion constituted a “crime of violence” under the modified cat-

egorical approach.

The majority recognizes that “a presentence report reciting

the facts of the crime is insufficient evidence to establish that

the defendant pled guilty to the elements of the generic defini-

tion of a crime . . . .” Maj. Op. at 20186 (quoting Corona-

Sanchez, 291 F.3d at 1212). But it nonetheless affirms Gonza-

lez’s sentence because the PSR here, unlike the PSR in

Corona-Sanchez, states that its information comes from

“court records.” I find this distinction perplexing. While our

case law suggests (without holding) that a PSR might support

application of the modified categorical approach if it makes

clear that it draws its information from an “identified, accept-

able source,” such as “a signed plea agreement, a transcript of

UNITED STATES v. GONZALEZ-APARICIO 20197

the plea hearing, or a judgment of conviction,” Corona-

Sanchez, 291 F.3d at 1212, the cryptic reference to “court

records” in Gonzalez’s PSR obviously does not fit that bill.

One cannot discern the precise source of the information. See

Aguila-Montes de Oca, 2011 WL 3506442, at *19 (“the fact

that we may only rely on a narrow and defined range of docu-

ments . . . ensures that the defendant will have understood and

had an opportunity to contest all facts which are necessary to

his conviction”). Thus, the majority errs in basing its modified

categorical approach finding solely on unspecified “court

records.”

The district court committed plain error by relying on the

PSR exclusively. Corona-Sanchez, 291 F.3d at 1212 (“The

idea of the modified categorical approach is to determine if

the record unequivocally establishes that the defendant was

convicted of the generically defined crime . . . .”) (emphasis

added); Pimentel-Flores, 339 F.3d at 968 (“We can under-

stand the frustration of district judges who sentence a defen-

dant on a record to which no objection was made only to have

to later revisit the matter . . . . Relying solely on the factual

description in the PSR, however, was plain error.”). This case

should be remanded for resentencing according to the correct

Guidelines range of 2-8 months.

V.

For the reasons set forth above, I respectfully dissent.