United States v. Doroteo Rocha-Alvarado ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10517
Plaintiff-Appellee,
D.C. No.
v. 4:15-CR-00507-
JAS-BPV-1
DOROTEO ROCHA-ALVARADO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
James. A Soto, District Judge, Presiding
Submitted October 21, 2016*
San Francisco, California
Filed December 12, 2016
Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,
and Jane A. Restani, Judge.**
Opinion by Judge Restani
*
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
**
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 UNITED STATES V. ROCHA-ALVARADO
SUMMARY***
Criminal Law
The panel affirmed the district court’s application of a
sixteen-level sentence enhancement to the defendant’s illegal-
reentry sentence on the ground that his prior conviction for
attempted sexual abuse in the first degree under Oregon
Revised Statutes § 163.427 qualified as a “crime of violence”
under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Because, as the parties agreed, § 163.427 is a divisible
statute, the panel applied the modified categorical approach
to determine which of two different crimes defined by
§§ 163.427(1)(a) and 163.427(1)(b) was the defendant’s
crime of conviction. And because, as the parties agreed, the
defendant’s conviction patently falls under subsection (1)(a),
the panel proceeded to consider whether his crime of
conviction under that subsection is a categorical match to the
federal generic offense of “crime of violence.”
The panel held that because a conviction pursuant to any
of the three further subdivisions of (1)(a) falls under the
generic federal definition of a crime of violence, either as
“sexual abuse of a minor” or a “forcible sex offense,” the
defendant was necessarily convicted of the same elements as
the generic federal definition. The panel explained that it is
irrelevant that the sexual conduct that led to the defendant’s
conviction occurred “outside of the clothes.”
***
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. ROCHA-ALVARADO 3
COUNSEL
Florence M. Bruemmer, Law Office of Florence M.
Bruemmer P.C., Anthem, Arizona, for Defendant-Appellant.
Rosaleen O’Gara, Assistant United States Attorney; Robert
L. Miskell, Appellate Chief; John S. Leonardo, United States
Attorney; United States Attorney’s Office, Tucson, Arizona;
for Plaintiff-Appellee.
OPINION
RESTANI, Judge:
Defendant-Appellant Doroteo Rocha-Alvarado appeals
the district court’s imposition of a sixteen-level sentencing
enhancement to his conviction of illegal reentry after
deportation in violation of 8 U.S.C. § 1326. We conclude
that the district court did not err in applying the sixteen-level
enhancement because, under the modified categorical
approach, Rocha-Alvarado’s prior conviction for attempted
sexual abuse in the first degree pursuant to Oregon Revised
Statutes § 163.427(1)(a) qualifies as a “crime of violence” for
the purposes of the U.S. Sentencing Guidelines (“the
Guidelines”) § 2L1.2. Accordingly, we affirm.
BACKGROUND
Rocha-Alvarado is a citizen of Mexico and had resided in
Oregon prior to his deportation on May 13, 2013. On
September 4, 2012, Rocha-Alvarado was charged with three
counts of attempted sexual abuse in the first degree, alleging
that on or between March 24, 2012, and August 29, 2012, he
4 UNITED STATES V. ROCHA-ALVARADO
subjected a nine-year-old girl to sexual contact by touching
her vagina, breast, and lips. The prosecutor’s statements at
the change-of-plea hearing further clarified that Rocha-
Alvarado effected the sexual contact “outside of the clothes.”1
ER 34. Rocha-Alvarado pled no contest to three counts of
attempted sexual abuse in the first degree in violation of Or.
Rev. Stat. § 163.427 and was then deported to Mexico.
On February 22, 2015, United States Border Patrol agents
apprehended Rocha-Alvarado near Vamori, Arizona as he
was attempting to reenter the United States. Rocha-Alvarado
admitted that he was illegally present in the United States.
On April 24, 2015, Rocha-Alvarado pled guilty to an
indictment charging him with illegal reentry after deportation,
in violation of 8 U.S.C. § 1326.
The district court accepted the final presentence report’s
recommendation of a sixteen-level enhancement, finding that
Rocha-Alvarado’s prior conviction constituted a crime of
violence under the Guidelines § 2L1.2(b)(1)(A)(ii). Thus, the
presentence report calculated a Guidelines range of forty-six
to fifty-seven months of incarceration and recommended a
sentence of forty-six months. The district court applied a
downward variance because Rocha-Alvarado had no other
previous criminal or immigration history and because Rocha-
Alvarado reentered the country for a “compelling reason.”
Rocha-Alvarado had stated that he returned to the United
1
The prosecutor qualified his statement. When asked by the court
whether the touching occurred over the clothes, the prosecutor responded
by stating, “[t]hat is my understanding, although the Liberty House
(indiscernible) had some questions, whether or not that was what had
happened.” ER 34. As discussed below, however, whether the touching
occurred outside of the clothes is not outcome-determinative.
UNITED STATES V. ROCHA-ALVARADO 5
States in order to find work that would enable him to buy
medicine for his son’s kidney transplant. The district court
sentenced Rocha-Alvarado to thirty months of incarceration
with three years of supervised release. Rocha-Alvarado now
appeals.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review questions of law de novo, including the district court’s
interpretation of the Guidelines and whether a prior
conviction qualifies as a “crime of violence” under the
Guidelines. United States v. Grajeda, 581 F.3d 1186, 1188
(9th Cir. 2009); United States v. Esparza-Herrera, 557 F.3d
1019, 1021–22 (9th Cir. 2009) (per curiam).
DISCUSSION
Rocha-Alvarado contends that his prior conviction under
Or. Rev. Stat. § 163.427 for attempted sexual abuse in the
first degree does not qualify as a “crime of violence” under
the modified categorical approach. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). He argues that, because the plea
transcript states that the sexual contact occurred outside the
victim’s clothing, his prior conviction is not a crime of
violence because it does not meet the generic federal
definition of “sexual abuse of a minor” as defined by
18 U.S.C. §§ 2243(a) and 2246(2)(D). We disagree.
In order to determine whether a state statute of conviction
qualifies as a generic federal crime, we apply the categorical
approach outlined by the Supreme Court in Taylor v. United
States, 495 U.S. 575, 599–602 (1990). Under this approach,
we compare only the elements of the state statute of
6 UNITED STATES V. ROCHA-ALVARADO
conviction with the generic federal definition. See id. The
statute of conviction must criminalize the same or less
conduct than the federal generic offense in order to qualify as
a categorical match. United States v. Villavicencio-Burruel,
608 F.3d 556, 561 (9th Cir. 2010). But if the statute of
conviction criminalizes more conduct than the generic federal
offense, then the prior conviction does not qualify as a
categorical match to the federal offense, and therefore cannot
serve as a sentencing predicate. Descamps v. United States,
133 S. Ct. 2276, 2281, 2283–85 (2013); United States v.
Jennings, 515 F.3d 980, 987 (9th Cir. 2008).
If a crime of conviction does not qualify as a predicate
offense under the categorical approach, it may still qualify
under the modified categorical approach. Quintero-Salazar
v. Keisler, 506 F.3d 688, 694 (9th Cir. 2007). The modified
categorical approach applies where a statute “list[s] potential
offense elements in the alternative” rather than means of
commission and is, therefore, divisible. Descamps, 133 S. Ct.
at 2283; see Mathis v. United States, 136 S. Ct. 2243,
2251–53 (2016). Under the modified categorical approach,
we may examine certain documents to determine what part of
the divisible statute formed the basis of conviction.
Descamps, 133 S. Ct. at 2284. Specifically, we may review
the terms of “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.” Parrilla v. Gonzales, 414 F.3d 1038,
1043 (9th Cir. 2005) (quoting Shepard v. United States,
544 U.S. 13, 16 (2005)); see also United States v. Lee,
704 F.3d 785, 788–89 (9th Cir. 2012). In so doing, we are to
evaluate whether the defendant “necessarily admitted” the
elements of the particular statutory alternative that is a
UNITED STATES V. ROCHA-ALVARADO 7
categorical match to the generic federal offense. Descamps,
133 S. Ct. at 2284 (quoting Shepard, 544 U.S. at 26).
The Guidelines recommend a sixteen-level enhancement
if a defendant, who has unlawfully reentered the United
States, also has a previous felony conviction for a “crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines
define a “crime of violence” to include a list of enumerated
offenses, which relevant to this appeal include: “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), . . . [and] sexual
abuse of a minor.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). The
enumerated “crimes of violence” also include attempts to
commit those crimes. U.S.S.G. § 2L1.2, cmt. n.5. These
listed offenses are per se crimes of violence. United States v.
Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir. 2007). In
addition to the enumerated offenses, the Guidelines include
in the definition of “crime of violence” “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).
Under the Oregon statute for sexual abuse in the first
degree, subsection (1)(a) includes three additional
subdivisions that allow for conviction when the sexual
contact occurs with: (A) a victim “less than 14 years of age”;
(B) a victim who “is subjected to forcible compulsion” by the
defendant; or (C) a victim who “is incapable of consent by
reason of” a mental defect, mental incapacitation, or physical
helplessness. Or. Rev. Stat. § 163.427(1)(a). Alternatively,
subsection (1)(b) prohibits “[i]ntentionally caus[ing] a person
under 18 years of age to touch or contact the mouth, anus or
sex organs of an animal for the purpose of arousing or
8 UNITED STATES V. ROCHA-ALVARADO
gratifying the sexual desire of a person.” Or. Rev. Stat.
§ 163.427(1)(b). As the Oregon statute of conviction is
overinclusive of the federal crime with regard to the bestiality
component and as (1)(a) is divisible from (1)(b), we apply the
modified categorical approach here.2
The Oregon state court convicted Rocha-Alvarado of
attempted sexual abuse in the first degree under Or. Rev. Stat.
§ 163.427. In his plea of no contest, Rocha-Alvarado
admitted specifically that, “[o]n or between March 24, 2012
to August 29, 2012, in Polk County, Oregon, [he] unlawfully
and knowingly attempted to subject [the victim] ([Date of
Birth] . . . [20]03), to sexual contact, by touching her vagina
. . . breast . . . and lips, a sexual or intimate part of [the
victim].” ER 33. Rocha-Alvarado’s conviction patently falls
under subsection (1)(a) of the Oregon statute, and both parties
agree to this matter. We therefore proceed to consider
whether Or. Rev. Stat. § 163.427(1)(a), Rocha-Alvarado’s
crime of conviction, is a categorical match to the federal
generic offense of “crime of violence” for purposes of the
Guidelines § 2L1.2.
Because a conviction pursuant to any of the three further
subdivisions of (1)(a) falls under the generic federal
definition of a crime of violence, either as “sexual abuse of a
2
Both parties agree that Or. Rev. Stat. § 163.427 is a divisible
statute, in that subsections (1)(a) and (1)(b) define two different crimes.
See Mathis, 136 S. Ct. at 2249. Indeed, that is correct. Because
subsections (1)(a) and (1)(b) provide alternative elements needed for
conviction of two different crimes, rather than alternative means of
fulfilling the elements of a single crime, the statute is divisible.
Accordingly, we must apply the modified categorical approach to
determine which of the two crimes was Rocha-Alvarado’s crime of
conviction.
UNITED STATES V. ROCHA-ALVARADO 9
minor” or a “forcible sex offense,” Rocha-Alvarado was
necessarily convicted of the same elements as the generic
federal definition. Thus, we hold that a conviction under
subsection (1)(a) necessarily entails conviction of the
elements of a crime of violence under the generic federal
definition.
A. Sexual Abuse of a Minor and Or. Rev. Stat.
§ 163.427(1)(a)(A)
Rocha-Alvarado submits that because the sexual conduct
that led to his conviction under Or. Rev. Stat. § 163.427(1)(a)
occurred outside of the clothes, the Oregon statute
criminalizes more conduct than the federal definition
provided within 18 U.S.C. § 2243, which specifically
excludes touching over the clothing in defining sexual abuse
of a minor. See 18 U.S.C. § 2246(2)(D). Our precedent,
however, previously established that 18 U.S.C. § 2243 does
not fully define the universe of sexual offenses contemplated
by U.S.S.G. § 2L1.2’s term “sexual abuse of a minor.”
United States v. Medina-Villa, 567 F.3d 507, 514–16 (9th Cir.
2009). In Medina-Villa, we recognized that the label “sexual
abuse of a minor” extends to statutes which criminalize
conduct that (1) is sexual, (2) involves a minor, and (3) is
abusive. Id. at 513, 516; see also United States v. Baron-
Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). We further
defined “abuse as physical or psychological harm in light of
the age of the victim in question.” Medina-Villa, 567 F.3d at
513 (internal quotations omitted).
We conclude that Or. Rev. Stat. § 163.427(1)(a)(A)
constitutes a crime of violence because it falls within the
generic federal definition of sexual abuse of a minor. First,
a conviction under subdivision (1)(a)(A) of the Oregon statute
10 UNITED STATES V. ROCHA-ALVARADO
necessarily involves conduct that is “sexual.” Contrary to
Rocha-Alvarado’s arguments, touching over the clothes is
irrelevant. The Oregon statute requires simply that the
touching was done for the purpose of sexual gratification,
placing the focus on the intent rather than the manner of the
touching. Or. Rev. Stat § 163.305(6) (defining “[s]exual
contact” as “touching of the sexual or other intimate parts of
a person . . . for the purpose of arousing or gratifying the
sexual desire of either party” (emphasis added)). Indeed, in
evaluating a comparable California statute, we held that the
defendant’s conviction under the California statute
categorically constituted “sexual abuse of a minor” and
qualified as a “crime of violence” for federal sentencing
purposes. Baron-Medina, 187 F.3d at 1147. There, the
California statute in question prohibited conduct that involves
“the touching of an underage child’s body” where the
touching is done “with a sexual intent.” Id.; see Cal. Pen.
Code § 288(a) (1987). We explained that, under the
California statute, “the character of the touching, though
perhaps circumstantially relevant to prove intent, is otherwise
immaterial.” Baron-Medina, 187 F.3d at 1147. Here,
regardless of the manner of touching, i.e., outside or inside of
the clothes, the Oregon statute similarly criminalizes conduct
that is sexual as it expressly defines “sexual contact” through
its relation to sexual gratification.
Second, subdivision (1)(a)(A) of the Oregon statute
pertains to minors as it specifically requires the victim to be
“less than 14 years of age.” Or. Rev. Stat.
§ 163.427(1)(a)(A). Third, it satisfies the last element of
“sexual abuse of a minor,” as our precedent establishes that
sexual contact with a child below the age of fourteen is per se
abusive. United States v. Valencia-Barragan, 608 F.3d 1103,
1107 (9th Cir. 2010). Rocha-Alvarado, relying on only
UNITED STATES V. ROCHA-ALVARADO 11
18 U.S.C. §§ 2243 and 2246(2)(D), has failed to address the
broader definition of “sexual abuse of a minor” included in
our precedent. Instead, a violation of subdivision (1)(a)(A)
requires a conviction of all three elements included within the
generic federal definition of sexual abuse of a minor. Any
conviction under subdivision (1)(a)(A) of the Oregon statute,
therefore, qualifies as a crime of violence because it falls
within the federal definition of “sexual abuse of minor.”
B. Forcible Sex Offense and Or. Rev. Stat.
§ 163.427(1)(a)(B) and (C)
A conviction under either subdivisions (1)(a)(B) or (C)
would also constitute a “crime of violence” as both
subdivisions fall within the generic federal definition of a
“forcible sex offense.” Under the Guidelines, a forcible sex
offense includes crimes in which “consent to the conduct is
not given or is not legally valid, such as where the consent is
involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii). Prior to a 2008 amendment, the Guidelines
simply listed “forcible sex offense” as an example of a “crime
of violence” and did not specifically define a “forcible sex
offense” as a situation in which consent is lacking. The 2008
amendment broadened the meaning of “forcible sex offense”
such that an “indicia of additional force or violence are no
longer required for the forcible sex offense enhancement so
long as consent to the sex offense is shown to be lacking.”3
3
We clarify that the 2008 amendments to the Guidelines abrogated
our holding in United States v. Beltran-Munguia, 489 F.3d 1042 (2007),
by expanding the generic federal definition of “forcible sex offense.” In
that case, we held that sexual abuse in the second degree under Or. Rev.
Stat. § 163.425 is not categorically a crime of violence. Beltran-Munguia,
489 F.3d at 1044, 1053. We explained that the Oregon statute at issue
“constitutes a ‘crime of violence’ only if: (1) the crime constitutes a
12 UNITED STATES V. ROCHA-ALVARADO
United States v. Quintero-Junco, 754 F.3d 746, 753 (9th Cir.
2014) (quoting United States v. Gallegos-Galindo, 704 F.3d
1269, 1272 (9th Cir. 2013)).
Subdivision (1)(a)(B) of the Oregon statute for sexual
abuse in the first degree falls within the federal definition of
“forcible sex offense,” i.e., an enumerated crime of violence.
The statute requires the victim to be subjected to “forcible
compulsion.” Or. Rev. Stat. § 163.427(1)(a)(B). Under
Oregon law, forcible compulsion is force that is (1) “greater
in degree or different in kind” from the simple act of touching
the intimate part of another and (2) “sufficient to ‘compel’ the
victim, against the victim’s will, to submit to or engage in the
sexual contact, but it need not rise to the level of violence.”
State v. Marshall, 253 P.3d 1017, 1027 (Or. 2011). Because
this section of the Oregon statute requires that the touching be
against the victim’s will, it meets the generic federal
definition of a forcible sex offense as provided in the 2008
amendments and, therefore, is a crime of violence.
Subdivision (1)(a)(C) of the Oregon statute also
constitutes a forcible sex offense. It requires that sexual
contact be made with a victim “incapable of consent.” Or.
Rev. Stat. § 163.427(1)(a)(C). Thus, it definitively meets the
‘forcible sex offense,’ a term left undefined by the guidelines; or
(2) conviction of the crime requires proof of ‘the use, attempted use, or
threatened use of physical force against the person of another.’” Id. at
1044 (emphasis added). Although we recognized that “the victim’s lack
of consent is the defining characteristic” of sexual abuse in the second
degree under the Oregon statute, we understood “forcible sex offense” to
require “the use of force.” Id. at 1045, 1051. As discussed, the 2008
amendment, however, has defined “forcible sex offense” and broadened
the meaning of that term by no longer requiring force if consent is lacking.
Quintero-Junco, 754 F.3d at 753.
UNITED STATES V. ROCHA-ALVARADO 13
generic federal definition of forcible sex offense, as amended
in 2008, which includes situations where “consent . . . is not
given or is not legally valid, . . . [e.g.,] involuntary,
incompetent, or coerced[.]” U.S.S.G. § 2L1.2, cmt.
n.1(B)(iii). Both subdivisions (1)(a)(B) and (1)(a)(C), thus,
constitute crimes of violence under the applicable Guidelines.
CONCLUSION
A conviction under any one of Or. Rev. Stat.
§ 163.427(1)(a)’s three subdivisions, therefore, necessarily
entails a conviction of the elements of the generic federal
definition of a crime of violence, whether it be sexual abuse
of a minor or a forcible sex offense. For the foregoing
reasons, the district court’s judgment of conviction and
sentence are
AFFIRMED.