United States v. Eduardo Valdez-Santana , 651 F. App'x 675 ( 2016 )


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  •                                                                            FILED
    JUN 09 2016
    NOT FOR PUBLICATION
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        15-10174
    Plaintiff-Appellee,                D.C. No. 4:14-cr-00871-RM-DTF-
    1
    v.
    MEMORANDUM*
    EDUARDO VALDEZ-SANTANA, AKA
    Eduardo Santana Valdez,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Rosemary Marquez, District Judge, Presiding
    Submitted June 7, 2016**
    San Francisco, California
    Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
    District Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Marvin J. Garbis, Senior United States District Judge
    for the District of Maryland, sitting by designation.
    Eduardo Valdez-Santana appeals from his sentence for illegal reentry, in
    violation of 8 U.S.C. § 1326. Because the parties are familiar with the facts and
    procedural history of this case, we repeat only those facts necessary to resolve the
    issues raised on appeal. We vacate and remand for resentencing on a closed
    record.
    The district court — not having been put on notice of the issue by an
    objection — committed plain error by applying a sentencing enhancement under
    U.S.S.G. § 2L1.2(B). Under this Court's decision in United States v. Caceres-Olla,
    
    738 F.3d 1051
    (9th Cir. 2013), Valdez-Santana’s predicate Oregon convictions for
    rape in the third degree and sodomy in the third degree are not categorically
    “forcible sex offenses,” because the relevant Oregon statutes — O.R.S. § 163.355
    and O.R.S. § 163.385 — criminalize sexual conduct based entirely on the age of
    the victim. See 
    Caceres-Olla, 738 F.3d at 1054
    –56. Similarly, Valdez-Santana’s
    predicate convictions do not constitute “statutory rape” under the applicable
    Guideline because the Oregon statutes “do[] not have an age difference element.”
    
    Id. at 1057.
    Finally, the predicate convictions do not constitute “sexual abuse of a
    minor” because they lack both an age difference element and an abuse element,
    and thus “sweep more broadly” than either federal definition of “sexual abuse of a
    2
    minor.” Descamps v. United States, 
    133 S. Ct. 2276
    , 2283 (2013); see also United
    States v. Castro, 
    607 F.3d 566
    , 568 (9th Cir. 2010) (recognizing two federal
    definitions of “sexual abuse of a minor”).
    Because Valdez-Santana has been incarcerated for a longer period of time
    than the Guidelines would have provided absent the improper enhancement, we
    respectfully urge the district court to resentence Valdez-Santana expeditiously.
    The mandate shall issue forthwith.
    VACATED and REMANDED.
    3
    

Document Info

Docket Number: 15-10174

Citation Numbers: 651 F. App'x 675

Judges: Silverman, Nguyen, Garbis

Filed Date: 6/9/2016

Precedential Status: Non-Precedential

Modified Date: 10/19/2024