United States v. Gomez-Mendez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50729
Plaintiff-Appellee,
v.  D.C. No.
CR-05-0041-TJW
ALEJANDRO GOMEZ-MENDEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
August 15, 2006—Pasadena, California
Filed May 14, 2007
Before: Alex Kozinski, Diarmuid F. O’Scannlain, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge O’Scannlain
5651
5654 UNITED STATES v. GOMEZ-MENDEZ
COUNSEL
Benjamin L. Coleman, San Diego, California, argued the
cause for the defendant-appellant, and filed briefs.
Joseph S. Green, Assistant U.S. Attorney, San Diego, Califor-
nia, argued the cause for the plaintiff-appellee; Carol C. Lam,
U.S. Attorney, and Roger W. Haines, Jr., Assistant U.S.
Attorney Chief, Appellate Section, Criminal Division, were
on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to decide whether a defendant’s prior Califor-
nia conviction for unlawful sexual intercourse with a minor
qualifies as a “crime of violence” under the federal Sentenc-
ing Guidelines.
I
On March 1, 2005, a U.S. Border Patrol agent found Ale-
jandro Gomez-Mendez near the San Ysidro, California, Port
UNITED STATES v. GOMEZ-MENDEZ 5655
of Entry. Gomez-Mendez was arrested after admitting that he
was a citizen and national of Mexico and present in the
United States without any documents permitting him to enter
the United States legally. A grand jury returned a one-count
indictment charging Gomez-Mendez with being a deported
alien found in the United States in violation of 8 U.S.C.
§ 1326. Gomez-Mendez pled guilty to the charge without the
benefit of a plea agreement.
The probation officer filed a presentence report, which
indicated that the maximum term of imprisonment was twenty
years and recommended a sentence of ninety-four months.
The presentence report computed the base offense level as
eight and concluded that a sixteen-level sentencing enhance-
ment pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was appropri-
ate because of Gomez-Mendez’s 2002 conviction for felony
unlawful sexual intercourse with a minor under age sixteen by
a person twenty-one years of age or older, in violation of Cal.
Penal Code § 261.5(d). The presentence report further recom-
mended a two-level downward adjustment for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a), but recom-
mended against the extra one-level reduction for acceptance
of responsibility pursuant to U.S.S.G. § 3E1.1(b) because the
government failed to file the required motion.
Gomez-Mendez objected to the report’s recommended sen-
tence, arguing that the maximum statutory penalty was only
two years imprisonment and one year of supervised release,
because the California conviction was neither alleged in the
indictment nor admitted at the plea colloquy. He also argued
that a sixteen-level enhancement was inappropriate because
his prior California conviction did not categorically qualify as
a “crime of violence.” Finally, Gomez-Mendez claimed that
a three-level downward adjustment for acceptance of respon-
sibility was appropriate because the government had no good
faith basis for not filing the motion required for the additional
one-level adjustment under U.S.S.G. § 3E1.1(b).
5656 UNITED STATES v. GOMEZ-MENDEZ
The district court refused to decide whether the government
improperly declined to file the motion required for the extra
one-level downward adjustment for acceptance of responsibil-
ity.1 The district court sentenced Gomez-Mendez to eighty-
four months in custody, three years of supervised release, and
a $100 penalty. The sentence included a sixteen-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for the prior
felony conviction under Cal. Penal Code § 261.5(d). The sen-
tence also reflected a two-level downward adjustment for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).
Gomez-Mendez appeals.
II
We consider as a matter of first impression Gomez-
Mendez’s argument that the district court erred in holding that
his prior conviction under Cal. Penal Code § 261.5(d) was a
“crime of violence.”
A
[1] Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing
Guidelines provides for a sixteen-level sentencing enhance-
ment upon conviction under 8 U.S.C. § 1326, where an alien
illegally reentered the United States after having been previ-
ously deported subsequent to a conviction for a felony “crime
of violence.”2 The Sentencing Guidelines fail to define a
1
The district court and the parties framed the inquiry as whether the
government violated an “abuse of discretion” standard. As discussed
below, we have recently held that the proper inquiry is whether the gov-
ernment acted “on the basis of an unconstitutional motive (e.g., racial dis-
crimination), or arbitrarily (i.e., for reasons not rationally related to any
legitimate governmental interest).” United States v. Espinoza-Cano, 456
F.3d 1126, 1136 (9th Cir. 2006) (internal quotation marks omitted).
2
While the Sentencing Guidelines are now advisory, see United States
v. Booker, 543 U.S. 220, 259 (2005); United States v. Ameline, 409 F.3d
UNITED STATES v. GOMEZ-MENDEZ 5657
“crime of violence” for such purposes. The Commission’s
commentary, however, defines a “crime of violence” to mean
any of the following: “murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, statutory rape, sex-
ual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling, or any offense
under federal, state, or local law that has as an element the
use, attempted use, or threatened used of physical force
against the person of another.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) (emphasis added).3
B
1
To determine whether a conviction constitutes “statutory
rape” and therefore a “crime of violence,” we employ the
familiar categorical approach the Supreme Court crafted in
Taylor v. United States, 495 U.S. 575 (1990). Guerrero-
Velasquez, 434 F.3d at 1195. In cases involving nontraditional
offenses, as here,4 we must determine whether the full scope
1073, 1077 (9th Cir. 2005) (en banc), they remain “an important aid for
district judges seeking to determine the appropriate sentence for a defen-
dant and which help to maintain uniformity in sentencing throughout the
country,” United States v. Guerrero-Velasquez, 434 F.3d 1193, 1195 n.1
(9th Cir. 2006). Accordingly, we review de novo whether the district court
correctly interpreted and applied the Sentencing Guidelines. United States
v. Baza-Martinez, 464 F.3d 1010, 1013 (9th Cir. 2006).
3
“Commentary to the Guidelines binds us in interpreting their provi-
sions unless it violates the Constitution or federal statute, or is inconsistent
with the Guidelines.” United States v. Asberry, 394 F.3d 712, 716 n.5 (9th
Cir. 2005).
4
Although we have suggested that statutory rape is an extension of the
common law crime of forcible rape and that the offense is old enough to
be considered part of the common law in the United States despite its stat-
utory heritage, see United States v. Brooks, 841 F.2d 268, 269 (9th Cir.
1988) (per curiam), statutory rape is distinct from the common law offense
5658 UNITED STATES v. GOMEZ-MENDEZ
of the conduct proscribed by Cal. Penal Code § 261.5(d) falls
within “the ordinary, contemporary, and common meaning”
of the term “statutory rape.” United States v. Lopez-Solis, 447
F.3d 1201, 1206-07 (9th Cir. 2006) (internal quotation marks
omitted). When we make this determination under the cate-
gorical approach, we “do not examine the facts underlying the
prior offense, but ‘look only to the fact of conviction and the
statutory definition of the prior offense.’ ” United States v.
Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en
banc) (quoting Taylor, 495 U.S. at 602).5
[2] Section 261.5(d) of the California Penal Code, the
offense at issue in this case, provides:
Any person 21 years of age or older who engages
in an act of unlawful sexual intercourse with a minor
who is under 16 years of age is guilty of either a mis-
demeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison for two,
three, or four years.
of forcible rape and not considered a “traditional” common law offense,
see United States v. Carlos-Colmenares, 253 F.3d 276, 279 (7th Cir.
2001); United States v. Rider, 282 F.2d 476, 477 & n.3 (9th Cir. 1960).
Unlike “traditional” common law offenses that generally required mens
rea, see Staples v. United States, 511 U.S. 600, 605 (1994); Morissette v.
United States, 342 U.S. 246, 251(1952); United States v. Balint, 258 U.S.
250, 251 (1922), “statutory rape was universally regarded as a strict liabil-
ity offense until well into the twentieth century,” Brooks, 841 F.2d at 270
(emphasis added); see also infra note 8.
5
If the offense fails to qualify as a “crime of violence” under the cate-
gorical approach, we may “go beyond the mere fact of conviction” and
consider “documentation of judicially noticeable facts that clearly estab-
lish the conviction is a predicate conviction for enhancement purposes.”
United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en
banc) (internal quotation marks omitted). We need not employ the modi-
fied categorical approach in this case because the parties did not raise this
issue on appeal and because of our decision on the merits.
UNITED STATES v. GOMEZ-MENDEZ 5659
Cal. Penal Code § 261.5(d). This section is considered Cali-
fornia’s statutory rape law. See Michael M. v. Superior Court,
450 U.S. 464, 466 (1981); In re Jennings, 95 P.3d 906, 921
(Cal. 2004); People v. Osband, 919 P.2d 640, 712 (Cal. 1996).6
[3] The term “statutory rape” is ordinarily, contemporarily,
and commonly understood to mean the unlawful sexual inter-
course with a minor under the age of consent specified by
state statute.7 This meaning of “statutory rape” covers the full
range of conduct proscribed by Cal. Penal Code § 261.5(d).
Moreover, we have recognized that the commentary to
U.S.S.G. § 2L1.2 “lists statutory rape as per se a crime of vio-
lence.” Valencia v. Gonzales, 439 F.3d 1046, 1053 (9th Cir.
2006). Therefore, the district court did not err in concluding
that Gomez-Mendez’s prior conviction for felony unlawful
sexual intercourse with a minor under sixteen years of age in
violation of Cal. Penal Code § 261.5(d) qualified categorically
as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
and warranted a sixteen-level sentencing enhancement.
2
[4] Gomez-Mendez nevertheless argues that a conviction
under Cal. Penal Code § 261.5(d) is overbroad under the cate-
6
Although Cal. Penal Code § 261.5 is titled “Unlawful Sexual Inter-
course,” “[w]e look solely to the statutory definition of the crime, not to
any name given to the offense.” United States v. Baron-Medina, 187 F.3d
1144, 1146 (9th Cir. 1999).
7
See Black’s Law Dictionary 1288 (8th ed. 2004) (defining “statutory
rape” as “[u]nlawful sexual intercourse with a person under the age of
consent (as defined by statute), regardless of whether it is against that per-
son’s will”); see also Susan M. Kole, Annotation, Statute Protecting
Minors in a Specified Age Range from Rape or Other Sexual Activity as
Applicable to Defendant Minor Within Protected Age Group, 18 A.L.R.
5th 856, § 2[a] (1994) (“In most states, the elements of statutory sex
offenses are simply sexual intercourse or engaging in some other pro-
scribed sexual act with a minor under the age of consent as specified in
the statute.”).
5660 UNITED STATES v. GOMEZ-MENDEZ
gorical approach because, according to Gomez-Mendez,
unlike “a large number of states” and the Model Penal Code,
the reasonable belief that the victim was over the age of six-
teen is no defense to statutory rape in California.8 Under Cali-
fornia case law, a reasonable belief that the victim was
eighteen or older, the age of consent established by Cal. Penal
Code § 261.5(a), is a defense, see People v. Hernandez, 393
P.2d 673, 677 (Cal. 1964), but a reasonable belief that the vic-
tim was sixteen, the age under which the most severe punish-
ment attaches to the offense pursuant to Cal. Penal Code
§ 261.5(d), is no defense, see People v. Scott, 100 Cal. Rptr.
2d 70, 81-82 (App. Ct. 2000). Thus, this affirmative defense
to statutory rape in California essentially mirrors the Model
Penal Code’s position, see Model Penal Code § 213.6(1), in
all ways but one: California sets the age of consent at eigh-
teen, rather than sixteen like the Model Penal Code and cer-
tain other states. See Model Penal Code § 213.3(1)(a).
[5] This difference is of no consequence. Taylor stands for
the proposition that a state crime must include all of the ele-
ments of the generic federal crime. See Asberry, 394 F.3d at
715 (“Under the categorical approach, we consider only the
8
A mistake-of-age defense to statutory rape is the minority rule in the
United States. See Colin Campbell, Annotation, Mistake or Lack of Infor-
mation as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R. 5th
499, § 2[a] (1997) (“The majority rule in the United States is that a defen-
dant’s knowledge of the age of a victim is not an essential element of stat-
utory rape. . . . A defendant’s good faith or reasonable belief that the
victim is over the age of consent is simply no defense. . . . Statutory rape,
then, is commonly referred to as a strict-liability crime, meaning that the
mental intent of the defendant is not important.”); see also Brooks, 841
F.2d at 269 (explaining that “[s]tatutory rape in sum has been and is a rec-
ognized judicial exception to the general principle that mistake of fact is
a defense if it negatives the existence of a mental state essential to the
crime charged” (internal quotation marks omitted)); Catherine L. Carpen-
ter, On Statutory Rape, Strict Liability, and the Public Welfare Offense
Model, 53 Am. U. L. Rev. 313, 317, 385-91 (2003) (stating that “most
states have concluded that statutory rape is a strict liability offense”
(emphasis added)).
UNITED STATES v. GOMEZ-MENDEZ 5661
statutory elements of the offense . . . .”). Assuming, without
deciding, that Taylor also requires that a state crime incorpo-
rate widely accepted affirmative defenses in order to fall
within the generic definition, the affirmative defense Gomez-
Mendez points to would not be part of the generic federal def-
inition of statutory rape. In most jurisdictions, statutory rape
is a strict liability crime. See supra notes 7 & 8. Thus a state
statute criminalizing unlawful sexual intercourse with a minor
can fall within the generic definition even if it allows no
mistake-of-age defense—much less one that is contingent on
defendant believing his victim was at least sixteen.
3
Gomez-Mendez further contends that Cal. Penal Code
§ 261.5(d) is overbroad under the categorical approach
because “promiscuity” or “unchaste character” provides no
defense to statutory rape in California. Gomez-Mendez’s only
authority for this assertion is Model Penal Code § 213.6(3),
which continues in spite of sharp criticism to promote a pro-
miscuity defense. He cites no jurisdiction, and we are aware
of none, that retains a promiscuity defense to a charge of stat-
utory rape.
4
Gomez-Mendez also argues that Cal. Penal Code
§ 261.5(d) is overbroad according to our decision in Corona-
Sanchez, 291 F.3d at 1207-08, because a conviction under that
statute could be based on aiding and abetting, or accessorial
liability. In Corona-Sanchez, we explained that “[u]nder Cali-
fornia law, aiding and abetting liability is quite broad, extend-
ing even to promotion and instigation.” 291 F.3d at 1207-08.
Thus, we held in Corona-Sanchez that a conviction for the
petty theft of cigarettes and beer under Cal. Penal Code § 484,
which could have followed from aiding and abetting liability,
does not constitute an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(G) because that statute criminalized conduct
5662 UNITED STATES v. GOMEZ-MENDEZ
that would not constitute a theft offense under federal sen-
tencing law. 291 F.3d at 1207-08.
[6] Like all other states and the federal government, Cali-
fornia has expressly abrogated the common law distinction
among principals, “aiders and abettors present at the scene of
the crime” (i.e., second-degree principals), and “aiders and
abettors who helped the principal before the basic criminal
event took place” (i.e., accessories before the fact). Gonzales
v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007); see also Cal.
Penal Code §§ 31, 971; People v. Mitten, 112 Cal. Rptr. 713,
715 (1974). Thus, under California law Gomez-Mendez could
indeed have been convicted for statutory rape under Cal.
Penal Code § 261.5(d) as a principal, as an aider and abettor
present at the scene of the crime, or as an accessory before the
fact.
[7] Gomez-Mendez’s reliance on Corona-Sanchez, how-
ever, is misplaced because that case was decided under Sen-
tencing Guidelines that have since been amended. Unlike the
1997 version of U.S.S.G. § 2L1.2 we construed in Corona-
Sanchez, the amended version of the application notes accom-
panying that section now expressly provide that “[p]rior con-
victions of offenses counted under Subsection (b)(1) include
the offenses of aiding and abetting, conspiring, and attempt-
ing, to commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5; see
also Guerrero-Velasquez, 434 F.3d at 1196 (recognizing that
Corona-Sanchez was superseded by U.S.S.G. § 2L1.2 cmt.
n.5). Moreover, the Supreme Court’s recent decision in
Duenas-Alvarez, 127 S. Ct. 815, supports our conclusion.
There, the Court held in the immigration context that, because
“criminal law now uniformly treats” principals, second-
degree principals, and accessories before the fact alike, “the
criminal activities of these aiders and abettors of a generic
theft must themselves fall within the scope of the term ‘theft’
in the federal statute.” Id. at 820. Thus, Gomez-Mendez’s
argument that Cal. Penal Code § 261.5(d) is overbroad
because a defendant could be convicted of statutory rape for
UNITED STATES v. GOMEZ-MENDEZ 5663
aiding and abetting or for participating as an accessory before
the fact is unpersuasive.
[8] Finally, a conviction for statutory rape under § 261.5(d)
does not run afoul of our decision in United States v. Innie,
7 F.3d 840 (9th Cir. 1993). In that case, we held that “the
offense of being an accessory after the fact is clearly different
from aiding and abetting” and therefore that a conviction as
an accessory after the fact to murder for hire was not a crime
of violence under the Sentencing Guidelines. Id. at 852-53.
Acting as an accessory after the fact to statutory rape, how-
ever, is punishable not as statutory rape under Cal. Penal
Code § 261.5(d), but as a separate and distinct criminal
offense under Cal. Penal Code § 32. People v. Prado, 136
Cal. Rptr. 521, 523-24 (1977); Mitten, 112 Cal. Rptr. at 715.
Accordingly, a prior conviction under Cal. Penal Code
§ 261.5(d) could not be based on liability for acting as an
accessory after the fact.
III
[9] There is one other related sentencing issue to be
resolved. Gomez-Mendez claims that the district court erred
by increasing his sentence based on a prior conviction that
was not alleged in the indictment, proven beyond a reasonable
doubt to a jury, or admitted at the time of the guilty plea.
Aliens who return to the United States after removal and with-
out permission are subject to two years incarceration pursuant
to 8 U.S.C. § 1326(a). Under 8 U.S.C. § 1326(b)(2), a prison
term of up to twenty years may be imposed for aliens “whose
[prior] removal was subsequent to a conviction for commis-
sion of an aggravated felony.” In Almendarez-Torres v.
United States, 523 U.S. 224 (1998), the Supreme Court con-
cluded that 8 U.S.C. § 1326(b) “simply authorizes a court to
increase the sentence for a recidivist . . . [and] does not define
a separate crime” and therefore held that a prior conviction
need not be charged in the indictment and proved beyond a
reasonable doubt. Id. at 226-27.
5664 UNITED STATES v. GOMEZ-MENDEZ
[10] Gomez-Mendez asserts that according to principles of
statutory construction, a prior conviction is an element of the
offense under the current version of 18 U.S.C. § 1326(b)(2),
rather than a sentencing factor, because a 1996 amendment
changed the structure of that section and added a title to sub-
section (b). But 18 U.S.C. § 1326(b)(2), the provision consid-
ered in Almendarez-Torres and at issue in this case, remains
virtually unchanged after the 1996 amendment.9 We do not
believe that the 1996 amendment transformed subsection
(b)(2) from a sentencing factor, as the Supreme Court held in
Almendarez-Torres, to a new criminal offense, as Gomez-
Mendez claims, simply because that amendment modified the
title of subsection (b) and added subsections (b)(3) and (b)(4).
In the pith of his claim, Gomez-Mendez essentially argues
that we are no longer bound by the Supreme Court’s holding
in Almendarez-Torres, because it interpreted a prior version
of 18 U.S.C. § 1326. We have repeatedly rejected the argu-
ment that Almendarez-Torres is no longer good law and have
held that the current version of 18 U.S.C. § 1326(b)(2) consti-
tutes a sentencing factor under Almendarez-Torres. See, e.g.,
United States v. Ochoa-Gaytan, 265 F.3d 837, 840 n.1, 845-
46 (9th Cir. 2001); United States v. Pacheco-Zepeda, 234
F.3d 411, 413-14 (9th Cir.), cert. denied, 532 U.S. 966 (2001).10
9
The 1996 amendment to subsection (b)(2) simply replaced the term
“deportation” with “removal” to reflect new terminology introduced by
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
No. 104-208, § 309(d)(2), 110 Stat. 3009, 3009-627 (1996). We have held
that “any distinction between deportation and removal is legally insignifi-
cant for purposes of § 1326.” United States v. Lopez-Gonzalez, 183 F.3d
933, 935 (9th Cir. 1999). The subsection is otherwise identical to the lan-
guage considered in Almendarez-Torres.
10
Gomez-Mendez filed a letter of supplemental authorities under Fed.
R. App. 28(j) contending that the district court committed Apprendi error
by enhancing his sentence based on his prior removal, a fact which was
never admitted nor proven to a jury beyond a reasonable doubt. See United
States v. Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006). But he
has not properly raised this issue. In the 39-page opening brief filed by his
counsel, Gomez-Mendez’s only reference to the district court’s finding of
UNITED STATES v. GOMEZ-MENDEZ 5665
IV
[11] Finally, we consider Gomez-Mendez’s argument that
the district court erred in failing to apply an additional one-
level reduction for timely acceptance of responsibility under
U.S.S.G. § 3E1.1(b)11 because the government improperly
refused to file a motion under that provision. The district
court expressly refused to make a finding whether the govern-
a subsequent removal appeared in a footnote, which states: “[S]ections
1326(b)(1) and (2) do not simply require a finding that a defendant suf-
fered a prior conviction. There must also be a finding that the conviction
was before the defendant’s deportation and that it falls into a certain cate-
gory: (1) a misdemeanor involving drugs or crimes against the person; (2)
a felony; or (3) an aggravated felony.” Gomez-Mendez did not enumerate
this as a separate claim. Indeed, he made no effort whatsoever to connect
this general observation about the law to the facts of his case. See Officers
for Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726 (9th Cir. 1992) (“We
will not ordinarily consider matters on appeal that are not specifically and
distinctly raised and argued in appellant’s opening brief.”) (internal quota-
tion marks and alteration omitted)).
Moreover, an issue raised for the first time in a letter of supplemental
authorities under Fed. R. App. 28(j) is ordinarily deemed waived. See,
e.g., Pawlyk v. Wood, 248 F.3d 815, 821-22 n.5 (9th Cir. 2001) (holding
that an attempt to raise an issue “by submitting a supplemental citation,
pursuant to Federal Rule of Appellate Procedure 28(j) . . . . is too late; the
issue is waived”). There is an exception to this rule when failure to con-
sider an issue first raised in a 28(j) letter would result in “substantial ineq-
uity.” United States v. Sterner, 23 F.3d 250, 252 n.3 (9th Cir. 1994),
overruled on other grounds by United States v. Keys, 95 F.3d 874, 879 n.6
(9th Cir. 1997). Gomez-Mendez has failed to meet that standard.
11
U.S.S.G. § 3E1.1(a) requires a sentencing court to reduce by two
levels the offense level of a defendant who “clearly demonstrates accep-
tance of responsibility for his offense.” Under U.S.S.G. § 3E1.1(b), a
defendant whose offense level is 16 or greater prior to the adjustment
authorized by U.S.S.G. § 3E1.1(a) could receive an additional one-level
reduction “upon motion of the government stating that the defendant has
assisted authorities . . . by timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to avoid prepar-
ing for trial and permitting the government and the court to allocate their
resources efficiently.”
5666 UNITED STATES v. GOMEZ-MENDEZ
ment improperly declined to file the motion. We have recently
held that the government cannot refuse to file a motion under
this provision “on the basis of an unconstitutional motive
(e.g., racial discrimination), or arbitrarily (i.e., for reasons not
rationally related to any legitimate governmental interest).”
Espinoza-Cano, 456 F.3d at 1136 (internal quotation marks
omitted). In its brief, the government concedes that remand is
appropriate on this issue. We agree and remand this case to
the district court to determine under Espinoza-Cano whether
the government refused to file the motion for an additional
one-level reduction arbitrarily or on the basis of an unconsti-
tutional motive.
V
Thus, we affirm the district court’s determination that
Gomez-Mendez’s prior conviction for unlawful sexual inter-
course by a person at least twenty-one years old with a minor
under sixteen years old under Cal. Penal Code § 261.5(d)
qualifies as a “crime of violence” under U.S.S.G. § 2L1.2(b)
(1)(A)(ii). We further conclude that the district court did not
err in increasing Gomez-Mendez’s sentence under 18 U.S.C.
§ 1326(b)(2). We remand this case to the district court for fur-
ther proceedings to determine whether the government
improperly refused to file a motion under U.S.S.G.
§ 3E1.1(b).
AFFIRMED IN PART AND REMANDED IN PART.