United States v. Faustino Gomez , 732 F.3d 971 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30262
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-06004-
LRS-1
FAUSTINO GOMEZ,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted
February 4, 2013—Seattle, Washington
Filed October 7, 2013
Before: Raymond C. Fisher, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
2 UNITED STATES V. GOMEZ
SUMMARY*
Criminal Law
The panel affirmed an illegal reentry conviction, vacated
the sentence, and remanded for resentencing in a case in
which the defendant argued that his underlying removal was
invalid.
The panel held that the removal was invalid for two
independent reasons: (1) the stipulated removal proceeding
violated the defendant’s right to due process because he was
denied his right to appeal the removal order, and (2) the
immigration judge violated 8 C.F.R. § 1003.25(b) by finding
the defendant’s waiver of rights “voluntary, knowing, and
intelligent” on the basis of an insufficient record. The panel
nonetheless affirmed the conviction because the violations
were harmless given that the defendant was ineligible for
voluntary departure at the time of the removal proceeding.
The panel held that the defendant’s prior conviction for
sexual conduct with a minor under Ariz. Rev. Stat. § 13-1405
did not constitute a “crime of violence” within the meaning
of U.S.S.G. § 2L1.2(b)(1)(A)(ii). The panel held that § 13-
1405, including the version for offenses against victims
“under fifteen,” does not categorically meet the generic
definition of “sexual abuse of a minor” or of “statutory rape,”
and that after Descamps v. United States, this court no longer
analyzes a statute missing an element of a generic offense, as
here, under the modified categorical approach.
*
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. GOMEZ 3
COUNSEL
Rebecca L. Pennell (argued), Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellant.
Alexander C. Ekstrom (argued), United States Attorney’s
Office for the Eastern District of Washington, Yakima,
Washington, for Plaintiff-Appellee.
OPINION
PAEZ, Circuit Judge:
Faustino Gomez appeals the district court’s denial of his
motion to dismiss the indictment charging him with illegal
reentry under 8 U.S.C. § 1326. Gomez argues that his
underlying 2006 removal was invalid because the stipulated
removal proceeding violated his right to due process and
denied him an opportunity to seek voluntary departure. We
hold that the removal was invalid for two independent
reasons: (1) the stipulated removal proceeding violated
Gomez’s right to due process because he was denied his right
to appeal the removal order, and (2) the Immigration Judge
(“IJ”) violated 8 C.F.R. § 1003.25(b) by finding Gomez’s
waiver of rights “voluntary, knowing, and intelligent” on the
basis of an insufficient record. Nonetheless, we affirm
Gomez’s § 1326 conviction because the violations were
harmless given that Gomez was ineligible for voluntary
departure at the time of the 2006 proceeding.
4 UNITED STATES V. GOMEZ
Gomez also challenges the district court’s imposition of
a sixteen-level sentencing enhancement. He argues that his
2004 conviction for sexual conduct with a minor under
Arizona Revised Statute section 13-1405 does not constitute
a “crime of violence” as defined by United States Sentencing
Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii). We
agree. We hold that § 13-1405, including the version for
offenses against victims “under fifteen,” does not
categorically meet the generic definition of “sexual abuse of
a minor” or of “statutory rape.” After Descamps v. United
States, 133 S. Ct. 2276 (2013), we no longer analyze a statute
missing an element of a generic offense, as here, under the
modified categorical approach. Thus, we vacate Gomez’s
sentence and remand for resentencing.
I. BACKGROUND
A.
In January 2004, Gomez was indicted on three counts of
violating Arizona Revised Statute section 13-1405 for sexual
conduct with a minor who was under the age of fifteen.
Count one charged Gomez with digitally penetrating the
victim, and Counts two and three charged him with having
sexual intercourse with her. In September 2004, Gomez
signed a plea agreement, pleading guilty to two counts of
“Attempted Sexual Conduct with a Minor Under the Age of
15” in violation of § 13-1001 (attempt) and § 13-1405 (sexual
conduct with a minor). In November 2004, Gomez was
sentenced to a term of imprisonment, not to be released until
January 16, 2006.
UNITED STATES V. GOMEZ 5
On January 17, 2006, the immigration authorities served
Gomez, who was in Immigration and Customs Enforcement’s
(“ICE”) custody, with a Notice to Appear (“NTA”). Gomez
signed and returned a “request for prompt hearing.” The
NTA included the allegation that he had been convicted of the
§ 13-1405 offenses. ICE transferred Gomez to Eloy
Detention Center where he received, on January 19, 2006, a
revised NTA that omitted any reference to his past
conviction. Gomez again signed a “request for prompt
hearing.” While Gomez was in a cell with other aliens, an
immigration official read to them en masse a Stipulated
Removal form in Spanish. Gomez does not remember
whether he had a copy of the form when it was read to the
group. After the en masse reading, Gomez met individually
with an immigration officer who told Gomez that he could be
removed immediately if he signed the form. Gomez claims
that during the individual meeting, “the form was not
reviewed again, and [he] did not read the form.” The whole
process lasted less than forty-five minutes. Gomez signed the
preprinted form, which contained both English and Spanish
statements waiving Gomez’s rights to counsel, ¶4, to a
hearing before an IJ, ¶5, to any form of relief (including
voluntary departure), ¶8, and to appeal, ¶13. Without a
hearing, the IJ issued a two paragraph decision and order on
January 20, 2006, finding Gomez’s uncounseled waiver of
rights to be “voluntary, knowing, and intelligent.” Gomez
was removed to Mexico via Nogales, Arizona that same day.
B.
On December 23, 2010, Gomez was arrested for driving
under the influence of alcohol in Washington state. A day
later, an ICE agent located Gomez in the Franklin County Jail
in Washington. Gomez was indicted on January 11, 2011, for
6 UNITED STATES V. GOMEZ
illegal reentry in violation of 8 U.S.C. § 1326.1 Gomez
moved to dismiss the indictment on the ground that the
underlying stipulated removal proceeding was invalid. The
district court denied the motion. A week later, Gomez filed
a motion for reconsideration along with a declaration, stating,
inter alia, that he had not understood the stipulated removal
proceeding.2 Although the district court denied Gomez’s
motion for reconsideration, the court characterized the
validity of Gomez’s removal proceeding as “a close
question.” Gomez entered a guilty plea, reserving his right to
appeal the denial of his motion to dismiss the indictment.
The probation officer prepared a pre-sentence report
(“PSR”) and recommended a total offense level of twenty-
two. The total offense level included a sixteen-level
1
8 U.S.C. § 1326(a) provides that “any alien who–(1) has been denied
admission, excluded, deported, or removed . . . and thereafter (2) enters,
attempts to enter, or is at any time found in, the United States [barring
some exceptions] . . . shall be fined under Title 18, or imprisoned not more
than 2 years [subject to enhanced penalties under § 1326(b)], or both.”
We have recognized that “the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (‘IIRIRA’) amended the
immigration statutes so as to eliminate the previous legal distinction
between deportation, removal and exclusion, merging all of these
proceedings into a broader category entitled ‘removal proceedings.’”
United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999)
(footnote omitted) (citing United States v. Pantin, 155 F.3d 91, 92 (2d Cir.
1998)). We refer to Gomez’s “removal” proceedings, though we note that
8 U.S.C. § 1326(d) and other cases we cite sometimes refer to
“deportation” proceedings. “[A]ny distinction between deportation and
removal is legally insignificant for purposes of § 1326.” Id. at 935.
2
According to the pre-sentence report prepared for sentencing, Gomez
completed the sixth grade in Mexico and is able to read and write in
Spanish, but unable to communicate in English.
UNITED STATES V. GOMEZ 7
enhancement based on the probation officer’s determination
that Gomez had been previously deported after being
convicted of a “crime of violence” as defined by U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The PSR assigned Gomez six criminal
history points, for a criminal history category of III, and a
Guidelines sentencing range of fifty-one to sixty-three
months imprisonment. Without the sixteen-level
enhancement, the sentencing range for Gomez would likely
have been ten to sixteen months. See United States
Sentencing Commission Guidelines Manual, Sentencing
Table (Nov. 1, 2010).3
On September 8, 2011, the district court conducted a
hearing on objections to the PSR. Gomez’s primary objection
was to the sixteen-level sentencing enhancement for his 2004
§ 13-1405 conviction. Gomez argued that the conviction did
not qualify as a “crime of violence” under the categorical or
modified categorical approaches.
On September 15, 2011, the district court conducted a
sentencing hearing. The district court acknowledged the
PSR’s recommended Guidelines sentencing range of fifty-one
to sixty-three months, and found that Gomez’s § 13-1405
conviction was “in fact categorically statutory rape,” which
is a “crime of violence” under § 2L1.2(b)(1)(A)(ii). The
district court also conducted an alternative analysis, assuming
that the generic definition of “statutory rape” included a four-
year age differential, and found that Gomez satisfied this
3
The PSR used the 2010 United States Sentencing Commission
Guidelines Manual. Pursuant to § 2L1.2(b)(1)(D), if Gomez’s Arizona
conviction had not qualified as a crime of violence, his base offense level
likely would have been increased by only four levels, rather than sixteen,
yielding a total offense level of ten, rather than twenty-two.
8 UNITED STATES V. GOMEZ
element because the court could consider Gomez’s age at the
time of the § 13-1405 conviction given that his date of birth
appeared on the “judgement [sic] paperwork.” Finally, the
district court noted several reasons for imposing a below-
Guidelines sentence. It also noted that it would likely have
given the same sentence even if it erred in applying the
sixteen-level enhancement. The district court then imposed
a sentence of twenty-two months imprisonment and three
years of supervised release.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final judgment of the
district court pursuant to 28 U.S.C. § 1291. “We review de
novo a claim that a defect in a prior removal proceeding
precludes reliance on the final removal order in a subsequent
§ 1326 proceeding.” United States v. Reyes-Bonilla, 671 F.3d
1036, 1042 (9th Cir. 2012), cert. denied, 133 S. Ct. 322(2012). “We review the district court’s findings of fact for
clear error. We may affirm a district court’s denial of a
motion to dismiss an indictment on any basis supported by
the record.” Id. (citation omitted).
“We review de novo the district court’s interpretation of
the Sentencing Guidelines,” United States v. Rodriguez-
Ocampo, 664 F.3d 1275, 1277 (9th Cir. 2011) (quoting
United States v. Berger, 587 F.3d 1038, 1041 (9th Cir. 2009))
(internal quotation marks omitted), including a “district
court’s determination that a prior conviction qualifies as a
‘crime of violence’ under the Guidelines,” United States v.
Rodriguez-Guzman, 506 F.3d 738, 740–41 (9th Cir. 2007)
(citing United States v. Rivera-Sanchez, 247 F.3d 905, 907
(9th Cir. 2001) (en banc)).
UNITED STATES V. GOMEZ 9
III. DISCUSSION
A. Conviction
When an alien defendant is prosecuted for illegal reentry
under 8 U.S.C. § 1326, he may not collaterally attack the
underlying deportation order “unless the alien demonstrates”
that:
(1) [he] exhausted any administrative
remedies that may have been available to seek
relief against the order; (2) the deportation
proceedings at which the order was issued
improperly deprived the alien of the
opportunity for judicial review; and (3) the
entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d); United States v. Gonzalez-Villalobos,
No. 12-30150, 2013 WL 3854657, at *1, *3–5 (9th Cir.
July 26, 2013). “An underlying removal order is
‘fundamentally unfair’ if: ‘(1) [a defendant’s] due process
rights were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
defects.’” United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2004) (alteration in original) (quoting United
States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.
1998)).
A defendant can establish the first two prongs of
§ 1326(d) by showing that he was denied judicial review of
his removal proceeding in violation of due process. See
Reyes-Bonilla, 671 F.3d at 1043; Ubaldo-Figueroa, 364 F.3d
at 1049–50. Due process requires that
10 UNITED STATES V. GOMEZ
[W]here a determination made in an
administrative proceeding is to play a critical
role in the subsequent imposition of a criminal
sanction, there must be some meaningful
review of the administrative proceeding. This
principle means at the very least that where
the defects in an administrative proceeding
foreclose judicial review of that proceeding,
an alternative means of obtaining judicial
review must be made available before the
administrative order may be used to establish
conclusively an element of a criminal offense.
United States v. Mendoza-Lopez, 481 U.S. 828, 837–38
(1987) (footnote omitted) (citations omitted); see also United
States v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir. 1993).
A defendant can also satisfy the first two prongs of
§ 1326(d) by showing that immigration officials in the
underlying removal proceeding violated a regulation designed
to protect an alien’s right to judicial review. See United
States v. Barajas-Alvarado, 655 F.3d 1077, 1084–85 (9th Cir.
2011), cert. denied, 132 S. Ct. 1983 (2012). “[T]he Supreme
Court has ruled that when Congress enacts a procedure, aliens
are entitled to it.” Id. (citing United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the
procedure authorized by Congress is, it is due process as far
as an alien denied entry is concerned.”)); see also United
States v. Ramos, 623 F.3d 672, 683 (9th Cir. 2010) (“It is a
well-known maxim that agencies must comply with their own
regulations.” (quoting Ramon-Sepulveda v. INS, 743 F.2d
1307, 1310 (9th Cir. 1984)) (internal quotation marks
omitted)).
UNITED STATES V. GOMEZ 11
Once a due process or a qualifying regulatory violation
has been established, we evaluate the third prong of § 1326(d)
(that the deportation order was “fundamentally unfair”) as a
“prejudice” inquiry. See Reyes-Bonilla, 671 F.3d at 1039
(noting that we have long held that “a defendant seeking to
exclude evidence of a prior removal order in a prosecution for
illegal reentry” must demonstrate a due process violation and
“‘bears the burden of proving prejudice.’” (quoting United
States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en
banc) and citing 8 U.S.C. § 1326(d)(3))); see also United
States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980)
(explaining that for the purposes of a § 1326 prosecution we
conduct a two-step inquiry to determine if a regulatory
violation invalidates an underlying removal order: (1) “the
regulation itself must serve a purpose of benefit to the alien”
and (2) the violation must have “prejudiced interests of the
alien which were protected by the regulation” (internal
quotation marks omitted)).
Here we conclude that Gomez’s 2006 deportation was
invalid for two independent reasons. First, Gomez was
denied his right to appeal his removal order in violation of
due process because immigration officials failed to obtain a
knowing waiver of that right. Second, the IJ who ordered
Gomez removed violated 8 C.F.R. § 1003.25(b) by finding
that Gomez’s waiver of his rights was “voluntary, knowing,
and intelligent” when there was an insufficient factual basis
for such a finding. However, we affirm the denial of
Gomez’s motion to dismiss the § 1326 conviction because he
cannot show that he was prejudiced by these violations given
that he was ineligible for any form of relief at the time of the
2006 proceeding.
12 UNITED STATES V. GOMEZ
1. Violations
a. Invalid Waiver
Obtaining an invalid waiver of the right to appeal a
deportation order violates due process. Lopez-Vasquez,
1 F.3d at 753–54 (“Although a deportee may waive his right
to judicial review of his deportation order, that waiver must
be considered and intelligent. Otherwise, the deportee is
deprived of judicial review in violation of due process.”
(internal quotation marks omitted) (quoting Mendoza-Lopez,
481 U.S. at 837–38)). Thus, although “an alien cannot
collaterally attack an underlying deportation order if he
validly waived the right to appeal that order,” United States
v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000), “[a] valid
waiver of the right to appeal ‘must be both considered and
intelligent,’” Ramos, 623 F.3d at 680 (quoting Arrieta,
224 F.3d at 1079) (additional internal quotation marks
omitted).
The first two prongs of § 1326(d) are satisfied if the right
to appeal was denied in violation of due process. See Reyes-
Bonilla, 671 F.3d at 1043 (“If Reyes did not validly waive his
right of appeal, the first two requirements under § 1326(d)
will be satisfied.”); Ubaldo-Figueroa, 364 F.3d at 1049–50;
see also Gonzalez-Villalobos, 2013 WL 3854657, at *4–5 &
n.7.
At the time of his removal proceeding, Gomez signed a
Stipulated Removal form, printed in English and Spanish,
waiving his right to appeal the deportation order. Gomez
argues that because he contests the validity of his waiver, the
government’s reliance on that form—without more—is
insufficient to prove by “clear and convincing evidence” that
UNITED STATES V. GOMEZ 13
his waiver was valid. Guided by Ramos and Reyes-Bonilla,
we agree.
The parties begin by debating who bears the burden of
proving the validity of Gomez’s waiver. Under the same
circumstances as those in this case, we have said
unmistakably that “[t]he government bears the burden of
proving valid waiver in a collateral attack of the underlying
removal proceedings.” Ramos, 623 F.3d at 680 (citing Lopez-
Vasquez, 1 F.3d at 754–54); see also Reyes-Bonilla, 671 F.3d
at 1043. The government must prove a valid waiver “by clear
and convincing evidence.” Reyes-Bonilla, 671 F.3d at 1043
(citing United States v. Pallares-Galan, 359 F.3d 1088, 1097
(9th Cir. 2004)).
We find unavailing the government’s argument that
United States v. Medina, 236 F.3d 1028, 1030 (9th Cir. 2001),
is to the contrary. In Medina, the defendant argued that the
government could not prove that he had in fact been deported
without a tape recording of the deportation proceeding. Id.
We noted that “the lawfulness of the prior deportation is not
an element of the offense under § 1326.” Id. (quoting United
States v. Delgado, 98 F.3d 492, 493 (9th Cir. 1996)) (internal
quotation marks omitted). Thus, in establishing the fact of a
prior deportation as an element of an illegal reentry offense,
“[t]he government merely needs to prove that [the defendant]
was in fact previously deported.” Id. Gomez does not
challenge the government’s ability to prove that he was in
fact deported. Rather, Gomez argues under a separate
provision of the statute—§ 1326(d)—that his deportation was
invalid. In spelling out the elements of an illegal reentry
offense in Medina, we did not silently overrule our prior
precedent holding that “[t]he government bears the burden of
proving the waiver.” Lopez-Vasquez, 1 F.3d at 754 (citing
14 UNITED STATES V. GOMEZ
Brewer v. Williams, 430 U.S. 387, 404 (1977) (“[I]t [is]
incumbent upon the State to prove an intentional
relinquishment or abandonment of a known right or
privilege.” (internal quotation marks omitted))).4
As Ramos emphasized, this court should “‘indulge every
reasonable presumption against waiver,’” and should “‘not
presume acquiescence in the loss of fundamental rights.’”
623 F.3d at 680 (quoting Lopez-Vasquez, 1 F.3d at 75[4]); see
also Reyes-Bonilla, 671 F.3d at 1044. We carefully abide by
this principle, especially where an uncounseled individual
purportedly waived his right to appeal.
Where an alien defendant (1) was represented by counsel
at his deportation proceeding and (2) did not allege facts
undermining the validity of his waiver, we held that the
government met its initial burden of proving a valid waiver
by introducing an official immigration record. United States
v. Galicia-Gonzalez, 997 F.2d 602, 603–04 (9th Cir. 1993).
We stated that “where the government introduces official
records which on their face show a valid waiver of rights in
connection with a deportation proceeding, the burden shifts
to the defendant to come forward with evidence tending to
prove the waiver was invalid.” Id. at 604. There, Galicia-
Gonzalez’s counsel signed a waiver of rights form “along
with a declaration that she fully explained the contents of the
agreement to him and that he entered it with full knowledge.”
4
Nor did Medina overrule our long-established precedent merely by
saying that “[i]n order to collaterally attack his prior deportation, Medina
must show that the deportation hearing was fundamentally unfair and that
he was prejudiced by the error.” 236 F.3d at 1031 (emphasis added). At
most, this statement merely reiterates the statutory requirement that the
alien “demonstrate” the prongs of § 1326(d) and prove prejudice. See
Reyes-Bonilla, 671 F.3d at 1039.
UNITED STATES V. GOMEZ 15
Id. at 603. And Galicia-Gonzalez did “not even allege[] there
was anything wrong with his deportation, i.e., that his rights
were improperly explained or that he was coerced into
waiving them. The government’s prima facie showing thus
stands unchallenged and this satisfies the government’s
burden of showing a valid deportation for purposes of section
1326.” Id. at 604.
Galicia-Gonzalez is not controlling here for two
independent reasons: (1) Gomez was not represented by
counsel at his removal proceeding, and (2) Gomez contested
the validity of his waiver and alleged facts supporting its
invalidity in the district court when prosecuted for illegal
reentry. First, Ramos explicitly held that the district court
erred by relying on Galicia-Gonzalez to shift the burden to
Ramos, because Galicia-Gonzalez was represented at his
deportation proceeding while Ramos was not. Ramos,
623 F.3d at 680 (noting “that the district court erred in
concluding that the validity of Ramos’s stipulated removal
order was controlled by our decision in Galicia-Gonzalez”
because “unlike the petitioner in Galicia-Gonzalez, who had
received a full explanation of a stipulated removal agreement
from his counsel, and who had entered into the stipulation
through counsel, Ramos lacked the benefit of legal
representation”). Second, when a defendant in a § 1326
prosecution contests the validity of his waiver of the right to
appeal his deportation order, we have held that the
government’s introduction of an official document signed by
the defendant waiving his right to appeal is insufficient to
meet the government’s burden of proving a valid waiver.
Reyes-Bonilla, 671 F.3d at 1043–45 (noting that the district
court’s finding of valid waiver “would be sound if Reyes had
not contested his understanding of the notice” but holding
that the signed notice was inadequate to meet the
16 UNITED STATES V. GOMEZ
government’s burden where Reyes testified in district court
that he had lacked understanding of the removal
proceedings).
The circumstances underlying the stipulated deportation
in Ramos are strikingly similar to the circumstances here.
Like Ramos, Gomez was unrepresented and, like Ramos, was
deported pursuant to a stipulated removal proceeding at the
Eloy, Arizona detention facility. See Ramos, 623 F.3d at 677.
Ramos signed the same stipulation as Gomez. The preprinted
stipulation form contains both English and Spanish
statements that waive the alien’s rights to counsel, ¶4, to a
hearing before an IJ, ¶5, to any form of relief (including
voluntary departure), ¶8, and to appeal, ¶13. In Ramos, we
described the process for stipulated removal proceedings at
Eloy:
After detainees are selected for participation
in the stipulated removal program, deportation
officers typically prepare an NTA and a
Stipulated Removal form for each individual.
Deportation officers then gather detainees
selected for the program for a group
presentation. There, an immigration
enforcement agent explains in Spanish that a
detainee has two options: first, to accept
stipulated removal, or second, to appear
before an IJ, where the detainee may ask to
remain legally in the United States or seek
voluntary departure. The agent also advises
the group that under the stipulated removal
program, a detainee can be removed that very
day; whereas it could take anywhere from two
to three weeks or longer to appear before an IJ
UNITED STATES V. GOMEZ 17
if the detainee chooses not to sign the form.
The agent then reads the text of the Stipulated
Removal form aloud in Spanish, and
concludes the presentation. Next, DHS
deportation officers meet individually with
each detainee to determine whether he or she
wants to sign the Stipulated Removal form.
Deportation officers do not review the
detainee’s A-file at any time before or during
the individual meeting. No transcriber,
interpreter, or attorney is present during the
detainee’s individual meeting with the
deportation officer.
Id. at 678. This description is consistent with the record in
this case, in particular Gomez’s sworn declaration.
In Ramos, we described the testimony of the immigration
officer who met individually with Ramos after the en masse
reading, and we noted her limited Spanish language skills.
623 F.3d at 678–79. We concluded that “Ramos’s waiver of
his right to appeal was invalid for several independent
reasons” including because his waiver “was not ‘considered
or intelligent’ because he did not receive a competent Spanish
language translation of his right to appeal when he signed the
form.” Id. at 680.
We are not persuaded by the government’s argument that
Ramos relied on the incompetence of the immigration
officer’s individual translation. This argument improperly
shifts the burden to the alien defendant to prove an
incompetent explanation of the alien’s rights; however, the
burden to prove a competent explanation, and thus valid
waiver, rests with the government. “We cannot conclude that
18 UNITED STATES V. GOMEZ
waiver of rights, including the right to appeal, was
‘considered or intelligent’ without evidence that a detainee
was ‘able to understand the questions posed to him’ when put
to the choice of foregoing all rights or remaining in detention
until he could appear before an IJ.” Ramos, 623 F.3d at 681
(emphasis added) (citing Perez-Lastor v. INS, 208 F.3d 773,
778 (9th Cir. 2000)). The fact that Ramos signed a
stipulation indicating his understanding and waiver, and that
the IJ found his waiver to be “voluntary, knowing, and
intelligent,” id. at 679, was insufficient to meet the
government’s burden of proof; and the government offers
nothing more here. See also Reyes-Bonilla, 671 F.3d at
1044–45 (concluding that the government failed to meet its
burden of proving a valid waiver where the evidence was
“unclear” as to whether the immigration officer explained to
Reyes “in a language he could understand” his right to appeal
and there was “no evidence as to the extent of the explanation
given or [the immigration officer’s] ability to communicate
in Spanish”).
Thus, we see no reason to distinguish Ramos. If anything,
there is more evidence here that Gomez had difficulty
understanding the stipulated removal proceeding. Gomez
stated in his declaration that he filed in the district court that
he has difficulty reading Spanish, that he did not understand
the stipulated proceeding, and that he received the same sort
of en masse reading of the stipulation as Ramos. Gomez also
stated that the immigration officer did not review the
Stipulated Removal form with him during his individual
meeting with the officer. The government has presented no
evidence—other than the signed form—that Gomez was
provided with a competent translation when he signed it. As
we held in Ramos, due process requires that an alien be
provided an individual explanation that is competently
UNITED STATES V. GOMEZ 19
translated “when he sign[s] the form” above and beyond an
en masse explanation. 623 F.3d at 680.
Moreover, shifting the burden to Gomez to prove an
incompetent translation would skew the government’s
incentives and create an insurmountable hurdle for alien
defendants. In Ramos, the government produced the
immigration officer at a hearing only to have the court find
that her translation had been inadequate. As here, the
government may not always be able to produce the
immigration officer; or she may be otherwise unavailable.
Thus, it is not realistic to expect the defendant to produce the
officer. Furthermore, if the government can stand silent and
merely rely on the signed stipulation as sufficiently “clear and
convincing” evidence, then it would have no incentive to
produce an immigration officer witness.
In sum, we hold that the stipulated removal proceeding at
Eloy violated Gomez’s right to due process by obtaining an
invalid waiver of Gomez’s right to appeal the deportation
order. The government has not met its burden of proving by
“clear and convincing evidence” that Gomez validly waived
his right to that appeal.5
5
The government’s argument—that the stipulated removal process set
forth in 8 C.F.R. § 1003.25(b) is constitutional—misses the point. Gomez
does not contend that the regulation is unconstitutional, but rather that
immigration authorities frequently abuse the regulatory procedure in
violation of due process, and did so here. It is not uncommon that the
Constitution requires more than what is included in the bare text of any
given statute or regulation. To hold, as Ramos did, that the government
must meet its burden of proving a valid waiver does not invalidate the
procedures set forth in § 1003.25(b).
20 UNITED STATES V. GOMEZ
b. Regulatory violation
Gomez also argues that his deportation was invalid
because the IJ violated 8 C.F.R. § 1003.25(b) by finding that
Gomez’s waiver of rights was “voluntary, knowing, and
intelligent” without a sufficient factual record.6 Again, our
6
8 C.F.R. § 1003.25(b) provides in full:
An Immigration Judge may enter an order of
deportation, exclusion or removal stipulated to by the
alien (or the alien’s representative) and the Service.
The Immigration Judge may enter such an order
without a hearing and in the absence of the parties
based on a review of the charging document, the
written stipulation, and supporting documents, if any.
If the alien is unrepresented, the Immigration Judge
must determine that the alien’s waiver is voluntary,
knowing, and intelligent. The stipulated request and
required waivers shall be signed on behalf of the
government and by the alien and his or her attorney or
representative, if any. The attorney or representative
shall file a Notice of Appearance in accordance with
§ 1003.16(b). A stipulated order shall constitute a
conclusive determination of the alien’s deportability or
removability from the United States. The stipulation
shall include:
(1) An admission that all factual allegations contained
in the charging document are true and correct as
written;
(2) A concession of deportability or inadmissibility as
charged;
(3) A statement that the alien makes no application for
relief under the Act;
UNITED STATES V. GOMEZ 21
reasoning in Ramos is directly on point and does not rely on
the concern of incompetent translation. Independent of the
invalid waiver issue, we found that Ramos’s Stipulated
Removal form provided an inadequate basis on which the IJ
could rely to evaluate the validity of Ramos’s waiver of
rights. “Without any independent inquiry of the petitioner,
and depending solely on information provided by DHS, the
IJ concluded that Ramos had ‘voluntarily, knowingly, and
intelligently’ waived his due process rights.” Ramos,
623 F.3d at 683. Despite the form’s explicit waiver language,
we concluded that the IJ’s finding “violated 8 C.F.R.
§ 1003.25(b) by failing to determine whether [Ramos’s]
waiver was ‘voluntary, knowing, and intelligent,’ as required
by the regulation.” Id. We concluded that the regulatory
violation would have been sufficient to invalidate Ramos’s
underlying removal but for a lack of prejudice. See id. at
683–84.
(4) A designation of a country for deportation or
removal under section 241(b)(2)(A)(i) of the Act;
(5) A concession to the introduction of the written
stipulation of the alien as an exhibit to the Record of
Proceeding;
(6) A statement that the alien understands the
consequences of the stipulated request and that the alien
enters the request voluntarily, knowingly, and
intelligently;
(7) A statement that the alien will accept a written order
for his or her deportation, exclusion or removal as a
final disposition of the proceedings; and
(8) A waiver of appeal of the written order of
deportation or removal.
22 UNITED STATES V. GOMEZ
Here, on January 19, 2006, Gomez signed the revised
Notice to Appear requesting a prompt hearing before an IJ.
On the same day, he signed the Stipulated Removal form
waiving, inter alia, the right to a hearing before an IJ.
Without a hearing, and only on the basis of Gomez’s signed
Stipulated Removal form, the IJ found Gomez’s “waiver to be
voluntary, knowing, and intelligent.” The IJ then found,
“upon review of the charging document and the written
stipulation that he is removable based upon clear and
convincing evidence in the form of his own admissions” and
ordered him removed.7
We do not read Ramos to require an actual appearance by
every alien before an IJ, a possibility that the district court
considered here. Rather, as the district court also discussed,
8 C.F.R. § 1003.25(b) can be read to contain two disjunctive
provisions:
[1] An Immigration Judge may enter an order
of deportation, exclusion or removal
stipulated to by the alien (or the alien’s
representative) and the Service. The
Immigration Judge may enter such an order
without a hearing and in the absence of the
parties based on a review of the charging
document, the written stipulation, and
supporting documents, if any. [Or,]
[2] [i]f the alien is unrepresented, the
Immigration Judge must determine that the
7
We are left to assume that the stipulation was signed subsequent to the
demand for a prompt hearing (which appears on the NTA) and that the IJ
inferred that the stipulation was controlling.
UNITED STATES V. GOMEZ 23
alien’s waiver is voluntary, knowing, and
intelligent.
8 C.F.R. § 1003.25(b). In other words, we could read the
second provision to rebut the first: where an alien is
unrepresented, the IJ’s duty to determine the waiver’s validity
supercedes the IJ’s ability to do so without a hearing.
However, we need not decide that issue. Rather, as Gomez
points out, there are several other avenues that immigration
officials could pursue to create a sufficient factual record
without conducting a hearing. For example, the government
could provide a written declaration by the immigration officer
of the circumstances surrounding the alien’s waiver, stating
that avenues of relief were discussed and that the officer
provided a competently translated, individualized explanation
of the rights the alien waived.8
Here, we conclude that the procedures followed in
removing Gomez violated 8 C.F.R. § 1003.25(b) because the
IJ could not have found that Gomez’s waiver was “voluntary,
knowing, and intelligent” based on the evidence before him,
and thus violated 8 C.F.R. § 1003.25(b). See Ramos,
623 F.3d at 683.
Therefore, on the basis of both his invalid waiver of the
right to appeal the deportation order and the IJ’s regulatory
violation, Gomez has met the requirements of 8 U.S.C.
§ 1326(d)(1)–(2) to attack collaterally the validity of his 2006
8
We do not purport to set forth an exhaustive list of what would be
necessary or sufficient to comply with this requirement in every case. The
gravamen of our holding is that an IJ must have before him a sufficient
record on which to determine that an alien’s waiver of rights is “voluntary,
knowing, and intelligent.” 8 C.F.R. § 1003.25(b).
24 UNITED STATES V. GOMEZ
deportation. We next turn to whether Gomez was prejudiced
by these violations.
2. Prejudice
As discussed supra, in a collateral attack on the validity
of a deportation order the defendant bears the burden of
proving prejudice under § 1326(d)(3). See Medina, 236 F.3d
at 1032. To establish prejudice in this context, the defendant
must show that it was “plausible” that he would have received
some form of relief from removal had his rights not been
violated in the removal proceedings. See Arrieta, 224 F.3d at
1079. “In order to demonstrate prejudice, [an alien] would
also have to show that he is not barred from receiving relief.
If he is barred from receiving relief, his claim is not
‘plausible.’” United States v. Gonzalez-Valerio, 342 F.3d
1051, 1056 (9th Cir. 2003).
Gomez argues that he was prejudiced by the due process
and regulatory violations during his removal proceeding
because he was eligible for and would have pursued pre-
hearing voluntary departure under 8 U.S.C. § 1229c. The
government contends that Gomez was ineligible for voluntary
departure because his previous Arizona conviction qualifies
as an “aggravated felony” under 8 U.S.C. § 1101(a)(43).9
9
Gomez also argues that his Arizona conviction is irrelevant because it
was not included on the revised NTA that formed the basis for his
deportation. This court has held “that due process does not require
inclusion of charges in the NTA that are not grounds for removal but are
grounds for denial of relief from removal.” Salviejo-Fernandez v.
Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). Therefore, even when the
NTA fails to include a reference to an aggravated felony, that failure
UNITED STATES V. GOMEZ 25
Under § 1229c, an alien is generally eligible for voluntary
departure so long as he has not been convicted of an
“aggravated felony” rendering him deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), and is not deportable for reasons of
national security under 8 U.S.C. § 1227(a)(4). Id.
§ 1229c(b)(1)(C). The “aggravated felony” definition is set
forth in 8 U.S.C. § 1101(a)(43) and includes “sexual abuse
of a minor,” id. § 1101(a)(43)(A), and “an attempt . . . to
commit an offense described in this paragraph,” id.
§ 1101(a)(43)(U).10
would not bar the government from introducing such a conviction later in
an immigration proceeding as a basis for the IJ to find an alien ineligible
for voluntary departure.
10
We note that “based on a review of Arizona’s caselaw, it is clear that
Arizona’s definition of attempt is coextensive with the federal definition.”
United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008) (reviewing
several Arizona cases that pre-date Gomez’s conviction and deportation);
see also United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir.
2012). Here, Gomez was convicted of “attempted sexual conduct with a
minor under the age of 15” in violation of Arizona Revised Statute
sections 13-1001 and 13-1405. Because Arizona’s attempt statute (§ 13-
1001) is “coextensive with the federal definition,” Taylor, 529 F.3d at
1238, “we are satisfied that [he] was convicted of the generic elements of
attempt,” Gomez-Hernandez, 680 F.3d at 1175. Therefore, we only
address the definition of the substantive crime set forth in § 13-1405.
26 UNITED STATES V. GOMEZ
Aside from a narrow exception not presented here,11 we
look to the law at the time of the deportation proceedings to
determine whether an alien was eligible for relief from
deportation. Vidal-Mendoza, 705 F.3d at 1017–19; Lopez-
Velasquez, 629 F.3d at 895, 897, 901. Gomez argues that
Vidal-Mendoza and Lopez-Velasquez are inapplicable to our
prejudice inquiry here. He asserts that those cases dealt only
with our due process inquiry and that we must look to current
case law when deciding prejudice. We read our case law
more broadly. Gomez offers no persuasive authority or logic
11
United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003) presents the
only example of the “narrow circumstances [where] we [have] applied
subsequent precedent in reviewing a deportation order.” United States v.
Lopez-Velasquez, 629 F.3d 894, 899 (9th Cir. 2010) (en banc); see United
States v. Vidal-Mendoza, 705 F.3d 1012, 1017 (9th Cir. 2013).
Leon-Paz [] involved an alien’s collateral challenge to
his removal order on the ground that the IJ failed to
inform him of his “apparent eligibility” for
discretionary relief under § 212(c). 340 F.3d at 1005.
At the time of his removal hearing, Congress had
changed the law to limit the availability of § 212(c)
relief for aliens convicted of aggravated felonies, but
we had not yet weighed in on whether these statutory
changes were applicable retroactively to aliens like
Leon-Paz. See id. at 1006–07. Shortly after Leon-
Paz’s removal hearing, the Supreme Court held that
these changes applied prospectively only. INS v. St.
Cyr, 533 U.S. 289, 326 (2001).
Vidal-Mendoza, 705 F.3d at 1017–18. This situation is not presented here.
Rather, as in Vidal-Mendoza and Lopez-Velasquez, “the post-removal
precedent . . . created a new, previously unavailable, possibility of relief
by making a ‘deviation’ from ‘longstanding Ninth Circuit and BIA
precedent.’” Vidal-Mendoza, 705 F.3d at 1018 (quoting Lopez-Velasquez,
629 F.3d at 898). We evaluate this new precedent with respect to
Gomez’s sentencing arguments, infra at III.B.
UNITED STATES V. GOMEZ 27
on which to distinguish our reasoning in Vidal-Mendoza and
Lopez-Velasquez when deciding prejudice.
Therefore, we must decide whether Gomez’s conviction
for “attempted sexual conduct with a minor under the age of
15” in violation of Arizona Revised Statute section 13-1405
qualified as an “aggravated felony,” 8 U.S.C. § 1101(a)(43),
at the time he was ordered deported in January 2006.12 We
conclude that Gomez’s conviction would have qualified as
“sexual abuse of a minor,” defined as an aggravated felony
under § 1101(a)(43)(A).
12
Gomez’s statute of conviction provides: “A person commits sexual
conduct with a minor by [1] intentionally or knowingly [2] engaging in
sexual intercourse or oral sexual contact with [3] any person who is under
eighteen years of age.” Ariz. Rev. Stat. § 13-1405A. “Sexual conduct
with a minor who is under fifteen years of age is a class 2 felony . . . .” Id.
§ 13-1405B. Gomez argues that we should only look to the statutory
language in § 13-1405A. We disagree. Gomez was indicted for and
convicted of violating the “under fifteen” version of the statute.
Therefore, our analysis is limited to that version. To the extent that § 13-
1405B contains other provisions, the “under fifteen” provision is divisible
from them, and, under the governing law in 2006, we may consider the
indictment and plea agreement’s clear language showing that Gomez was
charged with sexual conduct with “a minor under the age of fifteen.” See
Shepard v. United States, 544 U.S. 13, 16, 26 (2005) (holding that a court
determining the character of an underlying crime using the modified
categorical approach may consider, inter alia, the “charging document”
and “written plea agreement”); see also Descamps, 133 S. Ct. at 2283–85
(describing that Taylor v. United States, 495 U.S. 575, 602 (1990)
permitted courts to review a limited group of documents when the statute
of conviction is “‘divisible’—i.e., comprises multiple, alternative versions
of the crime”). The provisions in § 13-1405B set forth such “alternative
versions” because the statute defines the victim as being either “at least
fifteen” or “under fifteen.”
28 UNITED STATES V. GOMEZ
We first defined the term ‘sexual abuse of a
minor’ for purposes of § 1101(a)(43)(A) in
United States v. Baron-Medina, 187 F.3d
1144[, 1146–47] (9th Cir. 1999), where we
applied the ‘ordinary, contemporary, and
common meaning’ of ‘sexual abuse of a
minor,’ and concluded that any ‘use of young
children for the gratification of sexual desires
constitutes an abuse’ because the ‘child [is]
too young to understand the nature of
[defendant’s] . . . advances.’
Vidal-Mendoza, 705 F.3d at 1019 (second and third
alterations in original).13 The statute at issue in Baron-
Medina criminalized “the touching of an underage child’s
body . . . with a sexual intent,” where the child was under
fourteen years of age. 187 F.3d at 1145, 1147; accord
Cedano-Viera, 324 F.3d at 1065–66 & n.4. We later held that
a conviction under a Virginia statute criminalizing intercourse
with “a child . . . under fifteen years of age” constituted
“sexual abuse of a minor” in the sentencing context. United
States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th Cir.
2003) (alteration in original).14
13
We also “pointed out that Congress did not cross-reference any federal
substantive offense in listing ‘sexual abuse of a minor’ as an aggravated
felony,” and therefore did not limit the term to a single federal definition.
Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir. 2003).
14
We note that the analysis for defining substantive offenses enumerated
in § 1101(a)(43)—such as “rape” or “sexual abuse of a minor”—“is the
same for a ‘crime of violence’ in the sentencing context, U.S.S.G.
§ 2L1.2.” United States v. Valencia-Barragan, 608 F.3d 1103, 1107 n.1
(9th Cir. 2010) (citing Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 n.1
(9th Cir. 2009), and United States v. Medina-Villa, 567 F.3d 507, 511–12
UNITED STATES V. GOMEZ 29
The Board of Immigration Appeals (“BIA”) precedent
also guides our conclusion. In In re Rodriguez-Rodriguez,
22 I. & N. Dec. 991 (B.I.A. 1999), the BIA broadly defined
“sexual abuse of a minor” to exceed the definitions set forth
in various federal criminal statutes, so as to include abuse that
did not involve actual contact. Id. at 995–96. In so holding,
the BIA looked to 18 U.S.C. § 3509(a) (1994) (setting forth
the rights of child victims and witnesses), which “defines
‘sexual abuse’ as ‘the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in,
or assist another person to engage in, sexually explicit
conduct or the rape, molestation, prostitution, or other form
of sexual exploitation of children, or incest with children.’”
Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)). The BIA did not
set forth a threshold age at which such conduct would
constitute “abuse,” though § 3509(a)(2) defines “child” as “a
person who is under the age of 18.”
Most tellingly, in April 2006—just three months after
Gomez’s deportation—we relied on In re Rodriguez-
Rodriguez to affirm the BIA’s holding that sexual intercourse
with a 17-year-old constituted “sexual abuse of a minor” as
defined by § 1101(a)(43)(A). Afridi v. Gonzales, 442 F.3d
1212, 1214–17 (9th Cir. 2006), overruled by Estrada-
Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en
banc), overruled on other grounds by United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per
(9th Cir. 2009)); see also United States v. Medina-Maella, 351 F.3d 944,
947 (9th Cir. 2003) (relying in the context of criminal sentencing upon
cases defining “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A)).
Therefore, the analysis in sentencing cases such as Pereira-Salmeron is
directly applicable to our analysis here.
30 UNITED STATES V. GOMEZ
curiam), abrogated by Descamps, 133 S. Ct. 2276.15 Unlike
Estrada-Espinoza, 546 F.3d at 1152, Afridi—like all of our
cases preceding Gomez’s 2006 deportation—did not
explicitly rely on the fact that the subject statute required the
defendant to be a certain number of years older than the
victim. 442 F.3d at 1217. Applying the categorical approach,
we held that the California statute of conviction that
criminalizes conduct by “‘[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,’” was categorically
“sexual abuse of a minor.” Id. (quoting Cal. Penal Code
§ 261.5(c)). We stated:
A conviction under this statute meets the
BIA’s interpretation of “sexual abuse of a
minor” as encompassing any offense that
involves “the employment, use, persuasion,
inducement, enticement, or coercion of a child
to engage in . . . sexually explicit conduct
. . . .” In re Rodriguez-Rodriguez, 22 I. & N.
Dec. at 991, 995. Mr. Afridi had sexual
intercourse with a seventeen-year-old girl who
was more than three years younger than he.
Sexual intercourse clearly constitutes
“sexually explicit conduct,” and the
seventeen-year-old victim in this matter was
a “minor” as that term is commonly defined.
Further, the BIA’s definition of “sexual abuse
15
We have said that Estrada-Espinoza, which was not decided until
2008, “sharply departed from” our prior precedent defining “sexual abuse
of a minor” for purposes of § 1101(a)(43)(A). Vidal-Mendoza, 705 F.3d
at 1020. We evaluate our current law, including Estrada-Espinoza, infra
at III.B.
UNITED STATES V. GOMEZ 31
of a minor” is not limited to victims of any
certain age. Therefore, his offense falls
within that definition. Accordingly, the BIA
properly found that Petitioner was removable
for having committed an aggravated felony
....
Id. (first and second alterations in original).
Construing the two statutory provisions together, see
supra note 12, Gomez’s statute of conviction contains three
elements: (1) a mens rea of “intentionally or knowingly”; (2)
an act of “engaging in sexual intercourse or oral sexual
contact”; and (3) a victim “who is under fifteen years of age.”
Ariz. Rev. Stat. § 13-1405. Although the case law that
existed in 2006 did not explicitly enumerate the elements of
“sexual abuse of a minor,” these three elements were
sufficient to fall categorically within the then-existing BIA
and Ninth Circuit definition. The “sexual intercourse or oral
sexual contact” element of § 13-1405 clearly constitutes
“sexually explicit conduct.” See In re Rodriguez-Rodriguez,
22 I. & N. Dec. at 995. And a victim under fifteen years of
age fits squarely within the definition of “minor.” Id. at
995–97; Afridi, 442 F.3d at 1217. Under the logic of In re
Rodriguez-Rodriguez, 22 I. & N. Dec. at 995–96, and
Pereira-Salmeron, 337 F.3d at 1155, such conduct with a
victim under fifteen years of age constituted “abuse” at the
time.
Thus, under the governing case law at the time of his
deportation, Gomez’s crime would have categorically
qualified as “sexual abuse of a minor” for the purposes of
8 U.S.C. § 1101(a)(43)(A), and he would not have been
eligible for voluntary departure. Because Gomez was not
32 UNITED STATES V. GOMEZ
prejudiced by the due process and regulatory violations that
occurred in his 2006 removal proceeding, we affirm the
district court’s denial of his motion to dismiss.
B. Sentencing
We next determine whether, under current law, Gomez’s
§ 13-1405 conviction constitutes a “crime of violence” within
the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because our
case law has evolved since 2006, we conclude the opposite
from what we concluded with respect to the prejudice inquiry.
That is, we hold that Arizona Revised Statute section 13-1405
(including the “under fifteen” version) is not categorically a
“crime of violence,” and the district court’s finding to the
contrary was reversible error. Applying Descamps,
133 S. Ct. at 2283, 2292, we do not analyze the statute under
the modified categorical approach because it is missing an
element of the generic offenses. Thus, we vacate Gomez’s
sentence and remand for resentencing.
The U.S. Sentencing Guidelines provide for a sixteen-
level enhancement where the defendant was previously
deported after a conviction for “a crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary defines
“crime of violence” as “any of the following offenses under
federal, state, or local law: . . . statutory rape, [or] sexual
abuse of a minor.” Id. cmt. 1(B)(iii).16 The district court
imposed a sixteen-level sentencing enhancement because it
found that Gomez’s conviction constituted “statutory rape.”
16
The government argues only that Gomez’s Arizona conviction
qualifies as either “statutory rape” or as “sexual abuse of a minor.”
UNITED STATES V. GOMEZ 33
We begin by analyzing the Arizona statute of conviction
under the familiar categorical approach set forth in Taylor v.
United States, 495 U.S. 575 (1990). As we said above,
construing the two statutory provisions together, Gomez’s
statute of conviction contains three elements: (1) a mens rea
of “intentionally or knowingly”; (2) an act of “engaging in
sexual intercourse or oral sexual contact”; and (3) a victim
“who is under fifteen years of age.” Ariz. Rev. Stat. § 13-
1405.17
Thus, we look to the generic definitions of “sexual abuse
of a minor” and of “statutory rape” to determine if the
elements of § 13-1405 are the same as, or more narrow than,
the generic offenses. See Descamps, 133 S. Ct. at 2283
(summarizing Taylor and noting that “if the [state] statute
sweeps more broadly than the generic crime, a conviction
under that law cannot count” for the purposes of a sentencing
enhancement under the Armed Career Criminal Act). Three
related lines of cases compel us to conclude that the statute,
even including the “under fifteen” version, is missing an
element of both “sexual abuse of a minor” and of “statutory
rape” and therefore sweeps more broadly than the generic
offenses. Thus, a conviction under the statute is not
categorically a “crime of violence” within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
17
As we discussed supra at note 12, we may consider that Gomez was
convicted pursuant to the “under fifteen” version of the statute. See
Descamps, 133 S. Ct. at 2283–85 (reiterating that courts may consider a
limited group of documents when the statute of conviction is
“‘divisible’—i.e., comprises multiple, alternative versions of the crime”).
Although we ultimately conclude that § 13-1405 is missing elements of
the relevant generic offenses, the provisions set forth in § 13-1405B are
indeed “divisible” because the statute defines the victim as being either “at
least fifteen” or “under fifteen.”
34 UNITED STATES V. GOMEZ
First, in a unanimous en banc decision, we defined the
generic offense of “sexual abuse of a minor” as requiring
“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.” Estrada-Espinoza, 546 F.3d at
1152, 1156 (defining “what would, in more common
parlance, be referred to as statutory rape”); see also 18 U.S.C.
§ 2243; Valencia-Barragan, 608 F.3d at 1107.
Second, we held that the definition set forth in Estrada-
Espinoza was merely a definition of “statutory rape”18 and
18
The government argues that the generic definition of “statutory rape”
does not include the element of a four-year age differential. The
government relies on United States v. Gomez-Mendez, 486 F.3d 599, 603
(9th Cir. 2007) and Rodriguez-Guzman, 506 F.3d at 745, for the
proposition that statutory rape merely requires a victim under sixteen years
of age, and not the additional element of a four-year age differential. This
argument is directly contradicted by Estrada-Espinoza, 546 F.3d at 1158.
Moreover, regardless of whether these cases were overruled by Estrada-
Espinoza, neither case stands for the proposition the government asserts.
In Rodriguez-Guzman we looked to the Model Penal Code’s
definition of statutory rape, which requires as elements that the victim “‘is
less than [16] years old and the actor is at least [four] years older than the
other person.’” 506 F.3d at 745 (alterations in original) (emphasis added)
(quoting MPC § 213.3(1)(a)). We also looked to the same federal statute
that we later considered in Estrada-Espinoza, which similarly contained
the dual requirements that the victim be under sixteen years old and be
“‘at least four years younger’” than the perpetrator. Id. (quoting 18 U.S.C.
§ 2243(a)). Finally, we held that the statute at issue in Rodriguez-Guzman
was in fact over-inclusive because it applied to victims who were sixteen
and seventeen years old—we did not reach the issue of whether it was also
over-inclusive because it lacked the element of a four-year age
differential. Id. at 746–47. Nor did we reach the four-year age differential
element in Gomez-Mendez. Indeed, the statute at issue in Gomez-Mendez
included a five-year age differential element, which required the victim to
UNITED STATES V. GOMEZ 35
that a residual category of “sexual abuse of a minor” exists
for the purposes of U.S.S.G. § 2L1.2 that encompasses
statutes where (1) “the conduct proscribed . . . is sexual;” (2)
“the statute protects a minor;” and (3) “the statute requires
abuse.” Medina-Villa, 567 F.3d at 513. In turn, we defined
the term “abuse” as “physical or psychological harm in light
of the age of the victim in question.” Id. (internal quotation
marks omitted). We have noted that sexual contact with a
victim under the age of fourteen is categorically “abuse,” see
United States v. Lopez-Solis, 447 F.3d 1201, 1209 (9th Cir.
2006), but we have never held that such a per se rule applies
to consensual sex with persons fourteen and older. See
Valencia-Barragan, 608 F.3d at 1107 (recognizing the two
distinct generic definitions of “sexual abuse of a minor” and
finding that a statute will contain the element of abuse under
the Medina-Villa definition if it “applies to sexual conduct
with children younger than fourteen years”); Pelayo-Garcia,
589 F.3d at 1015–16 (rejecting argument that a statute that
criminalizes sex between someone over twenty-one with a
minor under sixteen is per se “abusive”).
be under sixteen years old and the perpetrator to be over twenty-one years
old. 486 F.3d at 601.
Moreover, as we noted supra note 14, although 8 U.S.C.
§ 1101(a)(43)(F)’s definition of “crime of violence” is distinct from the
definition in U.S.S.G § 2L1.2, Rodriguez-Guzman, 506 F.3d at 741–42,
the analysis for defining the generic substantive offenses enumerated in
§ 1101(a)(43)—such as “rape” or “sexual abuse of a minor”—“is the same
for a ‘crime of violence’ in the sentencing context, U.S.S.G. § 2L1.2.”
Valencia-Barragan, 608 F.3d at 1107 n.1 (citing Pelayo-Garcia, 589 F.3d
at 1013 n.1, and Medina-Villa, 567 F.3d at 511–12). Therefore, the
definition of “statutory rape” spelled out in Estrada-Espinoza is applicable
here in the sentencing context.
36 UNITED STATES V. GOMEZ
Third, in addressing the “under eighteen” version of the
statute, we have expressly determined that convictions under
§ 13-1405 meet neither the generic definition of “statutory
rape” set forth in Estrada-Espinoza nor the generic definition
of “abuse of a minor” set forth in Medina-Villa. Rivera-
Cuartas v. Holder, 605 F.3d 699, 701–02 (9th Cir. 2010).19
“On its face, § 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. at 702. Here, analyzing the “under fifteen”
version of § 13-1405, the statute continues to lack the age
difference element. “Section 13-1405 also does not meet the
generic definition of ‘sexual abuse of a minor’ under the
Medina-Villa framework as it lacks the element of ‘abuse.’”
Id. Again, analyzing the “under fifteen” version, the statute
continues to lack the element of “abuse” because the statute
may apply to victims who are not “younger than fourteen
years.” Valencia-Barragan, 608 F.3d at 1107; see also
Pelayo-Garcia, 589 F.3d at 1015–16.
19
We note that we previously affirmed a sixteen-level sentencing
enhancement for a violation of Arizona Revised Statute section 13-1405
when reviewing only for “plain error.” See United States v. Gonzalez-
Aparicio, 663 F.3d 419 (9th Cir. 2011). There, the majority declined to
address the question we decide here because, in its view, the law was not
“plain” enough to warrant a reversal of the sentence imposed by the
district court. Id. at 432 (noting that the morass of case law “should be
resolved only after the defendant properly raises an objection before the
district court and the district court thereby has a real opportunity to make
an informed and reasoned ruling that could assist any ultimate
resolution”). Here, Gomez objected to the sentencing enhancement in the
district court, and we now have occasion to clarify the question left
unanswered in Gonzalez-Aparicio.
UNITED STATES V. GOMEZ 37
Therefore, Arizona Revised Statute section 13-1405, even
including the “under fifteen” version, is missing an element
of the generic definition for “statutory rape” and for “sexual
abuse of a minor.” Thus, the statute is not categorically a
“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Because the statute is missing an element of these generic
crimes, our inquiry ends here—we do not undertake a
modified categorical analysis. Descamps, 133 S. Ct. at 2283,
2292 (holding that the modified categorical approach does not
apply to statutes that contain an “‘indivisible’ set of elements
sweeping more broadly than the corresponding generic
offense,” meaning that “the statute of conviction has an
overbroad or missing element”). “Because of the mismatch
in elements, a person convicted under that statute is never
convicted of the generic crime.” Id. at 2292.
We also reject the government’s argument that the
sentencing error was harmless. In imposing the sentence, the
district court stated:
I would also note that if I’m wrong on the
calculations, I’m fairly confident that the
sentence that likely would be imposed
assuming the Court or court on appeal would
find that the statutory rape is not applicable
and that the four-year age differential is
essential and that the Court is wrong on
finding that there’s a crime of violence on
either theory [categorical or modified
categorical] that’s been suggested, I would
doubt very much that there would be any
significant change in the sentence that’s about
to be imposed.
38 UNITED STATES V. GOMEZ
The government’s argument is unpersuasive. The district
court did not actually calculate the sentence it would have
imposed absent the enhancement and imposed a sentence that
was above the Guidelines range absent the enhancement. See
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5
(9th Cir. 2011) (noting that a Guidelines calculation error
may be harmless if one of four non-exhaustive factors is
satisfied, including if the district court “chooses a within-
Guidelines sentence that falls within . . . the correct
Guidelines range”); see also United States v. Acosta-Chavez,
No. 12-10324, 2013 WL 4082128, at *5 (9th Cir. Aug. 14,
2013).
IV. CONCLUSION
In sum, we hold that the IJ violated an immigration
regulation designed to protect an alien’s right to judicial
review and that Gomez was denied due process in his 2006
removal proceedings, but that these violations were harmless
in light of his ineligibility for relief from removal. We
therefore affirm the denial of his motion to dismiss the
indictment. We further hold that Gomez’s conviction under
Arizona Revised Statute section 13-1405 did not constitute a
“crime of violence” within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), and therefore the district court erred in
applying a sixteen-level sentencing enhancement. Thus, we
vacate Gomez’s sentence and remand for resentencing.
AFFIRMED in part and VACATED in part, and
REMANDED.