Rafael Lopez Almaraz v. Eric H. Holder Jr. ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50018
Plaintiff-Appellee, D.C. No.
v.
 3:08-CR-01188-W-1
JOSE VALENCIA-BARRAGAN, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
January 13, 2010—Pasadena, California
Filed April 6, 2010
Amended June 22, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr. and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
9117
UNITED STATES v. VALENCIA-BARRAGAN 9119
COUNSEL
Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
David P. Curnow, Steve Miller (argued), Assistant United
States Attorneys, San Diego, California, for the plaintiff-
appellee.
9120 UNITED STATES v. VALENCIA-BARRAGAN
ORDER
The opinion filed April 6, 2010, is amended, and the
amended opinion is filed concurrently with this order.
With the filing of the amended opinion, the panel has voted
unanimously to deny both petitions for rehearing. Judge
Fisher voted to deny the appellant’s petition for rehearing en
banc, and Judges Goodwin and Canby recommended denial.
The full court has been advised of the petition for rehearing
en banc and no active judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for rehearing are DENIED and the petition
for rehearing en banc is DENIED.
Pursuant to General Order 5.3(a), subsequent petitions for
rehearing or rehearing en banc may be filed concerning this
amendment.
IT IS SO ORDERED.
OPINION
GOODWIN, Senior Circuit Judge:
The opinion filed April 6, 2010, and appearing at 600 F.3d
1132 (9th Cir. 2010), is ordered amended, and the amended
opinion is filed herewith.
Jose Valencia-Barragan appeals his forty-one month sen-
tence for attempted reentry into the United States after
removal in violation of 8 U.S.C. § 1326. That sentence
includes a sixteen-level increase in offense level for a prior
conviction under Revised Code of Washington section
UNITED STATES v. VALENCIA-BARRAGAN 9121
9A.44.076(1) (“section 9A.44.076(1)”), which criminalizes
the rape of a child who is twelve or thirteen years old. Wash.
Rev. Code § 9A.44.076(1). Valencia-Barragan argues, first,
that a conviction under section 9A.44.076(1) does not consti-
tute a “crime of violence” warranting a sixteen-level increase
under United States Sentencing Guideline (“U.S.S.G.”)
§ 2L1.2(b)(1)(A). He also argues that the district court erred
procedurally in failing to explain and apply the sentencing
factors under 18 U.S.C. § 3553(a) and imposed a substan-
tively unreasonable sentence in violation of United States v.
Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009).
We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291. We hold that a conviction under section 9A.44.076(1)
categorically constitutes “sexual abuse of a minor” and is
therefore a crime of violence warranting a sixteen-level
increase. We also hold that the district court did not impose
a procedurally or substantively unreasonable sentence. There-
fore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2008, a United States Border Patrol agent,
responding to information from a seismic intrusion device,
found Valencia-Barragan hiding in brush north of the United
States-Mexico border. Valencia-Barragan, a citizen of Mex-
ico, had previously been deported after pleading guilty to
second-degree rape of a child under fourteen, a felony under
Washington law. See Wash. Rev. Code § 9A.44.076(2).
According to his presentence report, Valencia-Barragan
expressed no remorse and stated that he believed he had done
nothing wrong. He also allegedly kissed, touched, and
exposed himself to a second child, an eleven-year-old girl,
although he was not charged for that incident. He was sen-
tenced to sixty-eight months in prison and was deported in
1999 following his release.
On June 30, 2008, Valencia-Barragan pleaded guilty to
being a deported alien found in the United States in violation
9122 UNITED STATES v. VALENCIA-BARRAGAN
of 8 U.S.C. § 1326. At sentencing, the district court ruled that
Valencia-Barragan’s prior conviction under section
9A.44.076(1) qualified as “statutory rape” and was therefore
a crime of violence for purposes of sentencing enhancement.
The court found a base offense level of eight, U.S.S.G.
§ 2L1.2(a); a sixteen-level increase based on a prior convic-
tion for a crime of violence, id. § 2L1.2(b)(1)(A)(ii); and a
three-level decrease for acceptance of responsibility, id.
§ 3E1.1. Noting that the applicable Guidelines range was
forty-one to fifty-one months, the court concluded, “Mindful
of the fact the statutory maximum for this offense is up to 20
years in custody, and reviewing the criteria set forth in [18
U.S.C. § 3553(a)], I find that the low end of the adjusted
Guideline range would be a sufficient sentence but not greater
than necessary,” and imposed a sentence of forty-one months.
Valencia-Barragan timely appealed.
DISCUSSION
A. Sixteen-Level Increase Under U.S.S.G. § 2L1.2(b)(1)(A)
[1] Valencia-Barragan argues, first, that his prior convic-
tion under section 9A.44.076(1) constitutes neither “statutory
rape” nor “sexual abuse of a minor” and therefore is not a
crime of violence warranting a sixteen-level increase under
U.S.S.G. § 2L1.2(b)(1)(A). For a violation of 8 U.S.C.
§ 1326, the Sentencing Guidelines provide for a base offense
level of eight with an increase of sixteen levels “[i]f the
defendant previously was deported . . . after . . . a conviction
for a felony that is . . . a crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). “Crime of violence” includes, inter alia,
“sexual abuse of a minor” and “statutory rape.” Id. at cmt.
n.1(B)(iii). On de novo review, United States v. Medina-Villa,
567 F.3d 507, 511 (9th Cir. 2009), we conclude that a convic-
tion under section 9A.44.076(1) categorically constitutes sex-
ual abuse of a minor, and that the sixteen-level increase
therefore applies.
UNITED STATES v. VALENCIA-BARRAGAN 9123
[2] Section 9A.44.076(1) provides that “[a] person is guilty
of rape of a child in the second degree when the person has
sexual intercourse with another who is at least twelve years
old but less than fourteen years old and not married to the per-
petrator and the perpetrator is at least thirty-six months older
than the victim.” Wash. Rev. Code § 9A.44.076(1). To deter-
mine whether a prior conviction under section 9A.44.076(1)
constitutes either “sexual abuse of a minor” or “statutory
rape” for purposes of sentencing enhancement, we apply the
categorical approach set forth in Taylor v. United States, 495
U.S. 575, 600-02 (1990). “Under the categorical approach, we
‘compare the elements of the statute of conviction with a fed-
eral definition of the crime to determine whether conduct pro-
scribed by the statute is broader than the generic federal
definition.’ ” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th
Cir. 2008) (quoting Quintero-Salazar v. Keisler, 506 F.3d
688, 692 (9th Cir. 2007)). “We do not examine the facts
underlying the offense, but ‘look only to the fact of conviction
and the statutory definition of the prior offense.’ ” Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en
banc) (quoting Taylor, 495 U.S. at 602).
[3] Our case law recognizes two different generic federal
definitions of “sexual abuse of a minor.” Pelayo-Garcia v.
Holder, 589 F.3d 1010, 1013 (9th Cir. 2009).1 The first
generic definition contains three elements: (1) sexual conduct;
(2) with a minor; (3) that constitutes abuse. Medina-Villa, 567
F.3d at 513. We define the first two elements—(1) sexual
conduct; (2) with a minor—by “employing the ordinary, con-
temporary, and common meaning of the words that Congress
used.” United States v. Baron-Medina, 187 F.3d 1144, 1146
(9th Cir. 1999) (quoting Zimmerman v. Or. Dep’t of Justice,
1
Although Pelayo-Garcia addressed whether a statute of conviction
constituted an “aggravated felony” in the immigration context, 8 U.S.C.
§ 1101(a)(43), that distinction is immaterial. The analysis is the same for
a “crime of violence” in the sentencing context, U.S.S.G. § 2L1.2. See
Pelayo-Garcia, 589 F.3d at 1013 n.1; Medina-Villa, 567 F.3d at 511-12.
9124 UNITED STATES v. VALENCIA-BARRAGAN
170 F.3d 1169, 1174 (9th Cir. 1999) (internal quotation marks
omitted)). We define the third element—abuse—as “ ‘physi-
cal or psychological harm’ in light of the age of the victim in
question.” Medina-Villa, 567 F.3d at 513. Sexual conduct
with younger children is per se abusive. Id. at 514-15. The
second generic definition, derived from 18 U.S.C. § 2243 and
set out in Estrada-Espinoza v. Mukasey, contains four ele-
ments: “(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.”2 546 F.3d at 1152.
[4] We conclude that a conviction under section
9A.44.076(1) categorically constitutes sexual abuse of a
minor under the first generic definition. Section 9A.44.076(1)
contains the first two elements of the generic crime because
it prohibits (1) sexual conduct (2) with a minor. It contains the
final element, abuse, because it applies to sexual conduct with
children younger than fourteen years, and therefore prohibits
conduct that is per se abusive. See, e.g., Baron-Medina, 187
F.3d at 1147 (concluding that the use of children under four-
teen for the gratification of sexual desire necessarily consti-
tutes abuse).
[5] Because we conclude that Valencia-Barragan’s convic-
tion under section 9A.44.076(1) criminalizes conduct that sat-
isfies the first federal generic definition of “sexual abuse of a
minor,” we do not address whether his conviction also satis-
fies the second generic federal definition or whether it consti-
tutes “statutory rape.” Valencia-Barragan’s prior conviction
constitutes a crime of violence and the district court did not
2
Although Estrada-Espinoza referred to those elements as defining
“sexual abuse of a minor” generally, we subsequently clarified that the
Estrada-Espinoza definition “encompassed statutory rape crimes only.”
Medina-Villa, 567 F.3d at 514; accord Pelayo-Garcia, 589 F.3d at 1013-
14. Rather than defining the universe of crimes constituting “sexual abuse
of a minor,” therefore, Estrada-Espinoza set forth a second generic defini-
tion.
UNITED STATES v. VALENCIA-BARRAGAN 9125
err in imposing a sixteen-level increase under U.S.S.G.
§ 2L1.2(b)(1)(A).
B. Procedural and Substantive Reasonableness
Valencia-Barragan also contends that the district court
failed to adequately address and apply the sentencing factors
listed in 18 U.S.C. § 3553(a) (“the § 3553(a) factors”) and
imposed a substantively unreasonable sentence. We review
sentencing decisions for abuse of discretion. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Where,
as here, a defendant failed to object on the ground that the dis-
trict court erred procedurally in explaining and applying the
§ 3553(a) factors, we review only for plain error.3 United
States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913,
918 (9th Cir. 2006).
[6] The district court did not plainly err in its explanation
and application of the § 3553(a) factors. Under the sentencing
statute, the district court was required to “state in open court
the reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c). “Nonetheless, when a judge decides simply
to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007). Accordingly, “a sentencing
judge does not abuse his discretion when he listens to the
defendant’s arguments and then ‘simply [finds the] circum-
stances insufficient to warrant a sentence lower than the
Guidelines range.’ ” Amezcua-Vasquez, 567 F.3d at 1053-54
3
Valencia-Barragan argues that, although he did not object on proce-
dural grounds before the district court, presenting arguments relevant to
mitigation should be sufficient to invoke the abuse of discretion standard.
However, to the extent that Valencia-Barragan raised the issue of the
§ 3553(a) factors before the district court, he did so in challenging the sub-
stantive reasonableness of his sentence, arguing that the court should con-
sider various factors in mitigation. See Gall v. United States, 552 U.S. 38,
51 (2007). Because he raised no issue of procedural error by the district
court, plain error review applies.
9126 UNITED STATES v. VALENCIA-BARRAGAN
(quoting Carty, 520 F.3d at 995) (alteration in Amezcua-
Vasquez). Here, the district court listened to Valencia-
Barragan’s arguments, stated that it had reviewed the criteria
set forth in § 3553(a), and imposed a sentence within the
Guidelines range. Its failure to do more does not constitute
plain error.
Moreover, contrary to Valencia-Barragan’s contention, his
sentence is not substantively unreasonable under Amezcua-
Vasquez. In Amezcua-Vasquez, 567 F.3d at 1052, the defen-
dant was convicted of assault with great bodily injury and
attempted voluntary manslaughter after a stabbing during a
gang-related bar fight. He was deported more than twenty
years after completing a four-year prison sentence for that
crime and nearly fifty years after becoming a permanent resi-
dent, and was apprehended entering the United States shortly
thereafter. Id. at 1051-52. In those circumstances, we held that
a fifty-two month sentence that was largely predetermined by
a sixteen-level sentencing enhancement was substantively
unreasonable. Id. at 1056. We emphasized that “[t]he scope of
our decision is limited . . . . We make no pronouncement as
to the reasonableness of a comparable sentence were [the
defendant’s] conviction more recent, the sentence resulting
from the prior conviction more severe or ‘the need . . . to pro-
tect the public from further crimes of the defendant’ otherwise
greater.” Id. at 1058 (quoting 18 U.S.C. § 3553(a)(2)(C)).
[7] Given the limited scope of Amezcua-Vasquez’s hold-
ing, the district court did not abuse its discretion in applying
a sixteen-level enhancement for Valencia-Barragan’s prior
conviction. Unlike the defendant in Amezcua-Vasquez,
Valencia-Barragan was deported immediately after serving
his sentence, and Valencia-Barragan’s conviction was com-
paratively more recent. Moreover, given the nature of
Valencia-Barragan’s crime, and the fact that he allegedly also
kissed, touched, and exposed himself to an eleven-year-old
girl, “the need . . . to protect the public from further crimes
of the defendant” might logically be greater. 18 U.S.C.
UNITED STATES v. VALENCIA-BARRAGAN 9127
§ 3553(a)(2)(C). The district court therefore did not abuse its
discretion in imposing a within-Guidelines sentence. The sen-
tence is neither procedurally nor substantively unreasonable.
AFFIRMED.