United States v. Alvaro Gonzalez-Monterroso , 745 F.3d 1237 ( 2014 )


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  •                 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.