United States v. Castro , 607 F.3d 566 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50164
Plaintiff-Appellee,
v.  D.C. No.
3:08-CR-00881-W-1
EDUARDO CASTRO,
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
January 13, 2010—Pasadena, California
Filed March 26, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr. and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
4903
UNITED STATES v. CASTRO 4905
COUNSEL
Anthony E. Colombo, Jr., San Diego, California, for the
defendant-appellant.
Steve Miller, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
GOODWIN, Senior Circuit Judge:
Eduardo Castro, convicted of attempted reentry into the
United States after removal in violation of 8 U.S.C. § 1326,
appeals his forty-six month sentence. Castro’s sentence
4906 UNITED STATES v. CASTRO
includes a sixteen-level increase in offense level for a prior
conviction under California Penal Code section 288(c)(1),
which criminalizes lewd or lascivious acts on a child of 14 or
15 years by a person at least ten years older than the child.
Cal. Penal Code § 288(c)(1). Castro argues that a conviction
under section 288(c)(1) does not constitute a “crime of vio-
lence” warranting a sixteen-level increase under United States
Sentencing Guideline § 2L1.2(b)(1)(A). U.S. Sentencing
Guidelines Manual “U.S.S.G.” § 2L1.2(b)(1)(A) (2009). We
have jurisdiction under 28 U.S.C. § 1291. We hold that a con-
viction under California Penal Code section 288(c)(1) cate-
gorically constitutes neither “sexual abuse of a minor” nor
“statutory rape” and therefore does not qualify as a crime of
violence warranting a sixteen-level increase. We therefore
vacate Castro’s sentence and remand for resentencing.
Castro also argues that the district court imposed an unrea-
sonable sentence and that it erred by increasing the statutory
maximum under 8 U.S.C. § 1326(b) because Castro’s prior
conviction was neither alleged in the indictment nor admitted
by him. Because we vacate Castro’s sentence, we do not
address whether the sentence was reasonable. Nor do we
reach his argument that the district court erred by increasing
the statutory maximum because, as Castro concedes, that
argument is foreclosed by precedent. See, e.g., United States
v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009).
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2008, immigration and border patrol agents
arrested Castro while executing a search warrant at the home
of his ex-wife, who had been arrested two or three weeks ear-
lier for smuggling illegal aliens into the United States. Castro,
a citizen of Mexico, had been deported in 2003 after pleading
guilty to committing lewd or lascivious acts on a child of 14
or 15 years, a felony, under California Penal Code section
288(c)(1).
UNITED STATES v. CASTRO 4907
On March 23, 2009, Castro pleaded guilty to being a
deported alien found in the United States in violation of 8
U.S.C. § 1326. At sentencing, the district court concluded that
Castro’s prior conviction under section 288(c)(1) constituted
“sexual abuse of a minor” and was therefore a crime of vio-
lence 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 conviction for a crime
of violence, id. § 2L1.2(b)(1)(A)(ii); and a three-level
decrease for acceptance of responsibility, id. § 3E1.1, and
sentenced Castro to forty-six months in prison and three years
of supervised release. Castro timely appealed.
DISCUSSION
[1] Castro contends that his prior conviction under Califor-
nia Penal Code section 288(c)(1) does not qualify as 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 Sen-
tencing Guidelines provide for a base offense level of eight
and instruct that the offense level be increased by sixteen
levels “[i]f the defendant previously was deported . . . after
. . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). For
purposes of the Sentencing Guidelines, “crime of violence”
includes, inter alia, “sexual abuse of a minor” and “statutory
rape.” Id. at cmt. n.1(B)(iii). We hold that section 288(c)(1)
is broader than the generic offenses of both statutory rape and
sexual abuse of a minor and that it therefore is not categori-
cally a crime of violence.
[2] To determine whether a conviction under section
288(c)(1) constitutes either “sexual abuse of a minor” or “stat-
utory rape,” 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 federal definition of the crime to
determine whether conduct proscribed by the statute is
broader than the generic federal definition.’ ” Cerezo v.
4908 UNITED STATES v. CASTRO
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 defi-
nition of the prior offense.’ ” Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1152 (9th Cir. 2008) (en banc) (quoting Tay-
lor, 495 U.S. at 602).
[3] The statute of conviction, California Penal Code sec-
tion 288(c)(1), criminalizes the conduct of “[a]ny person who
commits an act described in subdivision (a) with the intent
described in that subdivision, and the victim is a child of 14
or 15 years, and that person is at least 10 years older than the
child.” Cal. Penal Code § 288(c)(1). Section 288(a), in turn,
applies to “[a]ny person who willfully and lewdly commits
any lewd or lascivious act . . . upon or with the body, or any
part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the
child.” Id. § 288(a). Section 288(c)(1) therefore contains the
following four elements: (1) willfully and lewdly; (2) commit-
ting any lewd or lascivious act; (3) on a child ages 14 or 15;
(4) with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of the defendant or the child;
and (5) the defendant must be at least ten years older than the
child.
[4] Using the categorical approach, we first compare sec-
tion 288(c)(1) to the generic crime of sexual abuse of a minor.
“Sexual abuse of a minor” contains three elements: (1) sexual
conduct; (2) with a minor; (3) that constitutes abuse. United
States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). We
define the first two elements—(1) sexual conduct; (2) with a
minor—by “ ‘employing the ordinary, contemporary, 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. Oregon Dep’t of Justice, 170 F.3d
1169, 1174 (9th Cir. 1999)). A statute of conviction contains
UNITED STATES v. CASTRO 4909
the third element, “abuse,” if it expressly prohibits conduct
that causes “ ‘physical 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. Because “[t]he conduct reached by Section 288(a)
indisputably falls with the common, everyday meanings of the
words ‘sexual’ and ‘minor,’ ” Baron-Medina, 187 F.3d at
1147, and because it applies only to sexual conduct with
younger children, we have previously held that a conviction
under section 288(a) categorically constitutes “sexual abuse
of a minor” for purposes of sentencing enhancement. See id.;
Medina-Villa, 567 F.3d at 516.
[5] Section 288(c)(1), however, is categorically broader
than the generic definition of “sexual abuse of a minor.”
Although it contains two elements of the generic crime—(1)
sexual conduct; (2) with a minor—it is broader than the
generic crime because it criminalizes conduct that does not
necessarily constitute abuse. Section 288(c)(1) does not
expressly include physical or psychological abuse as an ele-
ment of the crime. Moreover, unlike section 288(a), which
applies only where the minor is younger than 14, section
288(c)(1) does not address conduct that is per se abusive. See
Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir.
2009) (concluding that sexual conduct with a 15-year-old
child is not per se abusive). Section 288(c)(1) is therefore
broader than the generic crime of sexual abuse of a minor.
[6] We next compare section 288(c)(1) to the generic
crime of statutory rape. “Statutory rape,” as set forth by an en
banc panel in Estrada-Espinoza, contains 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 differ-
ence of at least four years between the defendant and the minor.”1
1
Although Estrada-Espinoza addressed whether a statute of conviction
constituted an “aggravated felony” in the immigration context, 8 U.S.C.
§ 1101(a)(43), and the present case concerns whether the statute of convic-
tion constitutes a “crime of violence” in the sentencing context, U.S.S.G.
§ 2L1.2, the analysis is the same. See Pelayo-Garcia, 589 F.3d at 1013
n.1; Medina-Villa, 567 F.3d at 511-12.
4910 UNITED STATES v. CASTRO
546 F.3d at 1152. Although Estrada-Espinoza referred to
those elements, derived from 18 U.S.C. § 2243, as defining
“sexual abuse of a minor,” we subsequently clarified that the
Estrada-Espinoza definition “encompassed statutory rape
crimes only.” Medina-Villa, 567 F.3d at 514-15; accord
Pelayo-Garcia, 598 F.3d at 1013-14. As Medina-Villa noted,
reading the Estrada-Espinoza definition to define the universe
of crimes constituting “sexual abuse of a minor” would lead
to absurd results, because the Estrada-Espinoza definition
excludes crimes against children under 12; moreover, it would
“eliminate the need for the separate and independent example
of ‘statutory rape’ as a ‘crime of violence’ ” for purposes of
U.S.S.G. § 2L1.2(b)(1)(A). Medina-Villa, 567 F.3d at 515-16.
Estrada-Espinoza therefore defined generic statutory rape and
did not alter the existing definition of generic sexual abuse of
a minor.
Section 288(c)(1) is broader than the generic definition of
“statutory rape.” It contains three of the required four ele-
ments: it applies to minors within the generic crime’s desig-
nated age range; it requires an age difference greater than the
generic crime’s required four years; and it contains the mens
rea requirement because, in this context, a defendant cannot
act “willfully” without also acting “knowingly.” This is so
because the mens rea requirement of “knowingly” applies
only to the defendant’s act of engaging in a sexual act,
Pelayo-Garcia, 589 F.3d at 1013, and California Penal Code
section 7(1) defines “willfully” as implying “a purpose or
willingness to commit the act.” Cal. Penal Code § 7(1). A
defendant cannot logically have a purpose or willingness to
commit an act without knowing that he or she is engaging in
the act. Section 288(c)(1) therefore contains three elements of
the generic crime of statutory rape.
[7] Section 288(c)(1), however, is categorically broader
than “statutory rape” because it is missing one element of the
generic crime, a “sexual act.” For purposes of the generic
UNITED STATES v. CASTRO 4911
offense of statutory rape set out in 18 U.S.C. § 2243, “sexual
act” is defined as follows:
(A) contact between the penis and the vulva or the
penis and the anus, and for purposes of this subpara-
graph contact involving the penis occurs upon pene-
tration, however slight;
(B) contact between the mouth and the penis, the
mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by
any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(D) the intentional touching, not through the cloth-
ing, of the genitalia of another person who has not
attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.
18 U.S.C. § 2246(2). Thus, for purposes of statutory rape,
“sexual act” requires, at a minimum, an intentional touching,
not through the clothing, of a minor’s genitalia.
[8] Section 288(c)(1), however, contains no such require-
ment; it requires only a “lewd or lascivious” act. Lewd touch-
ing, for purposes of section 288, can occur through a victim’s
clothing and can involve any part of the victim’s body. People
v. Martinez, 903 P.2d 1037, 1042-43 (Cal. 1995). Moreover,
a lewd or lascivious act need not involve touching at all; a
defendant can violate section 288 by instructing a minor to
disrobe. People v. Mickle, 814 P.2d 290, 308-09 (Cal. 1991).
Because a defendant could be convicted under section
288(c)(1) even if the government failed to prove beyond a
reasonable doubt that the conduct constituted a “sexual act,”
4912 UNITED STATES v. CASTRO
section 288(c)(1) is broader than the generic crime of statu-
tory rape. Therefore, because it constitutes neither “sexual
abuse of a minor” nor “statutory rape,” a conviction under
California Penal Code section 288(c)(1) does not categori-
cally constitute a crime of violence for purposes of the
sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A).
Where, as here, the government has not asked us to apply
the modified categorical approach, we do not do so. See Latu
v. Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008). Because we
remand for resentencing on an open record, see United States
v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc), the
district court has discretion to consider the modified categori-
cal issue on remand. We retain jurisdiction to hear an appeal
after resentencing.
VACATED and REMANDED for resentencing.