United States v. Lopez-Solis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-10059
v.
 D.C. No.
CR-02-01265-RCC
ALFREDO LOPEZ-SOLIS, aka Alfredo
Lopez, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued March 11, 2004
Submitted May 12, 2006
San Francisco, California
Filed May 19, 2006
Before: Thomas G. Nelson, Susan P. Graber, and
William A. Fletcher, Circuit Judges.
Opinion by Judge T.G. Nelson;
Dissent by Judge Graber
5487
UNITED STATES v. LOPEZ-SOLIS 5491
COUNSEL
Alfred Islas, Tucson, Arizona, for the defendant-appellant.
Paul K. Charlton, United States Attorney, Christina Cabanil-
las, Deputy Chief, Appellate Section, and Jeffrey H. Jacob-
son, Assistant United States Attorney, Tucson, Arizona, for
the plaintiff-appellee.
OPINION
T.G. NELSON, Circuit Judge:
Appellant Alfredo Lopez-Solis, a citizen of Mexico, was
indicted for entering the United States illegally in violation of
8 U.S.C. § 1326, with a sentencing enhancement pursuant to
8 U.S.C. § 1326(b)(2). The sentencing court subjected him to
a sixteen-level sentencing enhancement under § 2L1.2 of the
United States Sentencing Guidelines (“USSG”) based on his
prior conviction for statutory rape, a conviction the court
deemed “sexual abuse of a minor,” a “crime of violence”
under the guideline.1 On appeal, Lopez-Solis argues that his
conviction for statutory rape was not for “sexual abuse of a
minor,” and therefore not a “crime of violence.” For the rea-
sons discussed below, we agree. Accordingly, we vacate
1
Section 2L1.2 provides that “[i]f the defendant previously was
deported, or unlawfully remained in the United States, after — (A) a con-
viction for a felony that is . . . (ii) a crime of violence . . . increase by 16
levels.” USSG § 2L1.2(b)(1)(A)(ii) (Nov. 2002). The commentary to
§ 2L1.2 lists “sexual abuse of a minor” as a “crime of violence.” USSG
§ 2L1.2, cmt. n.1(B)(ii)(II) (Nov. 2002). We recognize that the Sentencing
Commission amended the commentary to include “statutory rape” as a
“crime of violence” in 2003, after the district court sentenced Lopez-Solis.
See USSG § 2L1.2, cmt. n.1(B)(iii) (Nov. 2003). As we discuss below, the
ex post facto clause prevents us from applying the amended version of the
guideline to Lopez-Solis’s sentencing. Thus, we will review Lopez-Solis’s
sentence under the 2002 version of the guideline.
5492 UNITED STATES v. LOPEZ-SOLIS
Lopez-Solis’s sentence and remand to the district court for
resentencing.
BACKGROUND
In August 2002, a grand jury indicted Lopez-Solis for ille-
gal entry into the United States after deportation, in violation
of 8 U.S.C. § 1326, with an enhancement pursuant to 8 U.S.C.
§ 1326(b)(2) because of his 2001 conviction for statutory rape
under title 39, chapter 13, section 506 of the Tennessee Code
(“section 39-13-506”).2 Section 39-13-506 criminalizes sexual
penetration of a minor under 18 years of age by an individual
who is at least four years older.3
Lopez-Solis admitted to having entered the United States
illegally but reserved his right to appeal the statutory enhance-
ment as well as any sentence imposed. The presentence report
recommended a sixteen-level sentencing enhancement based
on the statutory rape conviction. The district court agreed with
the presentence report and subjected Lopez-Solis to the
enhancement after it concluded that statutory rape was “sex-
ual abuse of a minor,” and therefore a “crime of violence”
under USSG § 2L1.2. The court sentenced Lopez-Solis to 46
months in prison, with 36 months of supervised release to fol-
low.
Lopez-Solis now appeals, arguing that his Tennessee con-
viction for statutory rape is not a conviction for “sexual abuse
of a minor,” and is therefore not a “crime of violence” under
2
Tenn. Code Ann. § 39-13-506 (2001). Section 1326 of title 8 of the
U.S. Code provides that a deported alien who thereafter enters the United
States without consent shall be fined or imprisoned for up to two years.
8 U.S.C. § 1326. However, under § 1326(b)(2), if “removal was subse-
quent to a conviction for commission of an aggravated felony, such alien
shall be fined . . . , imprisoned not more than 20 years, or both.” Id.
3
Lopez-Solis pleaded guilty to the statutory rape charge, and was sen-
tenced to one year of custody, with credit for time served, and one year
of probation. He was then deported to Mexico.
UNITED STATES v. LOPEZ-SOLIS 5493
USSG § 2L1.2. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the district court’s conclusion de novo.4
ANALYSIS
I.
[1] One year after Lopez-Solis was sentenced, the Sentenc-
ing Commission amended the definition of “crime of vio-
lence” under the application note to USSG § 2L1.2(b)(1)(A)
to include “statutory rape,” in addition to “sexual abuse of a
minor.”5 Typically, we apply clarifying but not substantive
amendments retroactively.6 We cannot do so if retroactive
application would violate the ex post facto clause, however.7
As a threshold matter, then, we must determine whether we
can apply the amended definition to Lopez-Solis’s appeal.
[2] In contrast to the dissent, we conclude that we cannot
apply the amended definition retroactively. In this context,
retroactive application would violate the ex post facto clause.8
That clause is violated when: (1) a law is “appl[ied] to events
occurring before its enactment,” and (2) its application “dis-
advantage[s] the offender affected by it.”9 Lopez-Solis’s
4
United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).
5
The definition of “crime of violence” that existed when the district
court sentenced Lopez-Solis read: “ ‘Crime of violence’ includes . . . forc-
ible sex offenses (including sexual abuse of a minor) . . . .” USSG § 2L1.2,
cmt. n.1(B)(ii)(II) (Nov. 2002). The amended definition reads: “ ‘Crime of
violence’ means . . . forcible sex offenses, statutory rape, sexual abuse of
a minor . . . .” USSG § 2L1.2, cmt. n.1(B)(iii) (Nov. 2003).
6
See United States v. Aquino, 242 F.3d 859, 865 (9th Cir. 2001).
7
See United States v. Alfaro, 336 F.3d 876, 882-83 (9th Cir. 2003);
United States v. Smallwood, 35 F.3d 414, 418 n.8 (9th Cir. 1994).
8
See Alfaro, 336 F.3d at 882-83 (holding that the district court’s retroac-
tive application of an amended sentencing guideline violated the ex post
facto clause because the new guideline disadvantaged the offender by
increasing his sentence).
9
Id. at 882 (internal quotation marks omitted).
5494 UNITED STATES v. LOPEZ-SOLIS
crime occurred before the amendment and, without the
amendment, his crime did not satisfy the definition of “sexual
abuse of a minor.” Thus, we apply the 2002 version of
§ 2L1.2(b)(1)(A).10
II.
[3] Section 2L1.2(b)(1)(A) provides a sixteen-level
enhancement “[i]f the defendant previously was deported . . .
10
We question United States v. Asberry’s acceptance of the Commis-
sion’s designation of the amendment as merely “clarifying.” 394 F.3d 712,
716 (9th Cir. 2005). While the amendment certainly made the definition
of “crime of violence” clearer, it did so by making substantive changes.
See Alfaro, 336 F.3d at 883 (refusing to characterize an amendment as
clarifying, rather than substantive, because the amendment added a chemi-
cal that was not listed previously as a chemical warranting a departure).
Specifically, it added a term — “statutory rape” — to the previous defini-
tion of “crime of violence.” Under ordinary rules of construction, the free-
standing terms in the amended definition — “forcible sex offenses, statu-
tory rape, [and] sexual abuse of a minor” — have distinct definitions. See
United States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir. 1989) (reaffirming
“the fundamental principle of statutory construction that interpretative
constructions of statutes which would render some words surplusage are
to be avoided”) (internal quotation marks, omissions, and brackets omit-
ted); United States v. Fish, 368 F.3d 1200, 1204 (9th Cir. 2004) (applying
the principle to interpret the Sentencing Guidelines). While these defini-
tions may overlap, no definition should be completely subsumed within
another. See id.
We are not bound by Asberry’s implied acceptance of the Commis-
sion’s designation of the amendment as “clarifying” because Asberry did
not have to determine if the amendment was substantive or clarifying for
purposes of retroactive application. See Asberry, 394 F.3d at 716-17 (bor-
rowing the 2003 amendment to § 2L1.2’s definition of “crime of violence”
to interpret the phrase “crime of violence” in a different section of the
2003 Guidelines); see also Smallwood, 35 F.3d at 418 n.8 (declining to
apply an amendment to the Guidelines retroactively, even though the
Commission labeled it clarifying, to avoid an ex post facto violation);
United States v. Sanchez-Rodriguez, 161 F.3d 556, 563 n.11 (9th Cir.
1998) (en banc) (stating that “[w]hile we give some deference to the Com-
mission’s conclusion [that an amendment is clarifying, not substantive],
we are not bound by it”).
UNITED STATES v. LOPEZ-SOLIS 5495
after . . . a conviction for a felony that is . . . a crime of vio-
lence.”11 The application note to USSG § 2L1.2(b)(1)(A)
defines “crime of violence” in the following manner:
“Crime of violence”—
(I) means an offense under federal, state, or local
law that has as an element the use, attempted
use, or threatened use of physical force against
the person of another; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses
(including sexual abuse of a minor), robbery,
arson, extortion, extortionate extension of
credit, and burglary of a dwelling.12
This circuit consistently has held that statutory rape laws
prohibiting sexual contact with a minor under 16 proscribe
conduct constituting “sexual abuse of a minor.”13 We have
never interpreted that phrase de novo with respect to a law
such as Tennessee’s that prohibits sexual contact with a minor
11
USSG § 2L1.2(b)(1)(A).
12
USSG § 2L1.2, cmt. n.1(B)(ii) (emphasis added). “Sexual abuse of a
minor” is the only category into which Lopez-Solis’s statutory rape con-
viction might fall because section 39-13-506 does not include as an ele-
ment “the use, attempted use, or threatened use of physical force.” See
Tenn. Code Ann. § 39-13-506; USSG § 2L1.2, cmt. n.1(B)(ii)(I). Thus, his
conviction is not for an offense under subpart (I) of the application note
to USSG § 2L1.2(b)(1)(A), or for a “forcible sex offense” under subpart
(II). See United States v. Pereira-Salmeron, 337 F.3d 1148, 1151 (9th Cir.
2003); United States v. Lopez-Montanez, 421 F.3d 926, 930 (9th Cir.
2005). Although the Sentencing Commission used the conjunction “and”
between subparts (I) and (II), “we read the two subparts as presenting
alternative definitions of ‘crime of violence,’ rather than a two-pronged
test requiring satisfaction of both subparts.” Pereira-Salmeron, 337 F.3d
at 1151.
13
See, e.g., Pereira-Salmeron, 337 F.3d at 1155.
5496 UNITED STATES v. LOPEZ-SOLIS
between the ages of 17 and 18.14 As we discuss below, the age
of the victim is material. The age affects whether the conduct
the statutory rape law covers constitutes “abuse.” Thus, this
case requires us to “break new ground.”15
III.
We begin our analysis by defining the phrase “sexual abuse
of a minor.”16 Then, we determine whether the conduct pro-
scribed by section 39-13-506 falls within that definition.17 We
must make the latter determination categorically: the conduct
punished by section 39-13-506 “qualifies as ‘sexual abuse of
a minor’ . . . if and only if the ‘full range of conduct’ covered
by that statute falls within the meaning of that term.”18 Under
the “categorical” approach, “[w]e look solely to the statutory
definition of the crime, not to . . . the underlying circum-
stances of the predicate conviction.”19 In this case, the “full
range of conduct” that section 39-13-506 covers ranges from
consensual20 sexual intercourse between a minor aged 13 and
an adult many years older to the “slight[est]” sexual penetra-
tion of a minor just under 18 by a 22 year old.21 In order for
14
We have addressed such a law under a different standard of review,
as discussed below.
15
See Valencia v. Gonzales, 439 F.3d 1046, 1050 (2006) (distinguishing
out-of-circuit caselaw holding that statutory rape is a crime of violence
because the statutes at issue in those cases pertained only to minors under
16).
16
See Baron-Medina, 187 F.3d at 1146.
17
Id.
18
Id.
19
Id.
20
Although section 39-13-506 does not include consent as an element,
Tennessee courts have held that the section “contemplates circumstances
in which the sexual relations are admittedly consensual.” See e.g., State v.
Ealey, 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997). Tennessee prose-
cutes non-consensual sex as rape. See Tenn. Code Ann. § 39-13-503(a)(2).
21
See Tenn. Code Ann. §§ 39-13-506, 39-13-501(7) (2001).
UNITED STATES v. LOPEZ-SOLIS 5497
section 39-13-506 to satisfy the categorical test, even the least
egregious conduct the statute covers must qualify as “sexual
abuse of a minor.”22 If that conduct does not qualify, then sec-
tion 39-13-506 is overbroad. Thus, our categorical inquiry
need focus only on the conduct falling at the least egregious
end of section 39-13-506’s “range of conduct”: “slight” sex-
ual penetration of a minor just under 18 by a 22 year old.23
IV.
Our first task is to define the phrase “sexual abuse of a
minor.” In cases involving non-traditional offenses, such as
“sexual abuse of a minor,” we define the offense based on
“the ordinary, contemporary, and common meaning” of the
statutory words.24 Specifically, we “couple[ ] the dictionary
definition of ‘abuse’ with the common understanding of ‘sex-
ual’ and ‘minor’ . . . .”25 The common understanding of the
words “sexual” and “minor” encompasses the conduct prohib-
ited by section 39-13-506.26 The section prohibits “sexual
penetration” of individuals who are under 18, the legal age of
majority. Thus, this case turns on the definition of “abuse.”
[4] Employing the dictionary definition, we have defined
abuse as “misuse . . . to use or treat so as to injure, hurt, or
damage . . . to commit indecent assault on.”27 The Eleventh
Circuit similarly has defined abuse in this context to mean
“physical or nonphysical misuse or maltreatment.”28 Both def-
22
See Valencia, 439 F.3d at 1052 & n.3.
23
See id.; see Baron-Medina, 187 F.3d at 1146.
24
See United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th Cir.
2001).
25
See id. (describing the approach of Baron-Medina, 187 F.3d at 1146).
26
See Baron-Medina, 187 F.3d at 1147; Pereira-Salmeron, 337 F.3d at
1155.
27
United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004)
(quoting Webster’s Third New Int’l Dictionary 8 (3d Ed. 1981)) (internal
quotation marks omitted).
28
United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001).
5498 UNITED STATES v. LOPEZ-SOLIS
initions encompass behavior that is harmful emotionally and
physically. With these definitions in mind, we now compare
them with the range of conduct prohibited by section 39-13-
506. If the full range of conduct prohibited by the statute com-
pletely encompasses our definition of “abuse,” then section
39-13-506 satisfies the categorical approach. However, if sec-
tion 39-13-506 covers conduct that does not satisfy our defini-
tion, the statute is overbroad.
V.
As discussed above, section 39-13-506 categorically pro-
scribes consensual sexual penetration of a victim just under
18 by an individual who is 22. “Sexual penetration” includes
“any [consensual] intrusion, however slight, of any part of a
person’s body” into the victim’s body.29 For the following rea-
sons, we hold that the conduct the statute proscribes does not
categorically constitute physical or psychological “abuse.”
A. Physical abuse
[5] Consensual sexual penetration of an individual between
the ages of 17 and 18 by a 22 year old does not necessarily
involve physical “misuse,” “injur[y],” or “assault” for three rea-
sons.30 First, physical “misuse,” “injur[y],” or “assault” is not
necessarily involved in the commission of the act. We
recently held that a statutory rape law nearly identical to the
one at issue here does not “by its nature, involve[ ] a substan-
tial risk that physical force may be used against the [victim]
. . . in the course of committing the offense.”31 Second, physi-
cal harm or injury is not necessarily a result of the act. While
we have recognized that pregnancy and contraction of sexu-
ally transmitted diseases constitute injuries that may result
29
Tenn. Code Ann. § 39-13-501(7).
30
See Pallares-Galan, 359 F.3d at 1100.
31
Valencia, 439 F.3d at 1049 (quoting 18 U.S.C. § 16(b)) (internal quo-
tation marks omitted).
UNITED STATES v. LOPEZ-SOLIS 5499
from sexual intercourse,32 section 39-13-506 encompasses
conduct far short of intercourse.33 Such conduct may present
no risk of pregnancy and very little risk of sexually transmit-
ted diseases.34 Thus, the risk of pregnancy and contraction of
disease associated with sexual intercourse is not present with
respect to some of the conduct that section 39-13-506 covers.
Accordingly, our concern in Asberry with the “serious poten-
tial risks” of sexual intercourse to teens does not apply here.35
[6] Third, according to Tennessee courts, physical abuse is
neither involved in nor a result of the conduct section 39-13-
506 proscribes. Specifically, courts distinguish between sec-
tion 39-13-506 and Tennessee’s sexual assault crimes.36
Whereas sexual assault crimes “require some form of [assaul-
tive] contact between the accused and the victim,” an individ-
ual can violate section 39-13-506 without “causing physical
injury” or coming into physical contact with a person in a way
regarded as “offensive or provocative.”37 Under Tennessee
law, if the sexual penetration resulted from an assault, the
crime committed would be rape.38 In addition, sexual assault
crimes “contemplate the lack of effective consent by the vic-
tim.”39 Section 39-13-506, however, “contemplates circum-
32
See Asberry, 394 F.3d at 717.
33
See Tenn. Code Ann. § 39-13-501(7) (defining “sexual penetration” as
“any [ ] intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of the victim’s, the defendant’s, or
any other person’s body, [and] emission of semen is not required”)
(emphasis added).
34
See id.
35
See Asberry, 394 F.3d at 717.
36
See e.g., Ealey, 959 S.W.2d at 611 & n.5 (describing the “fundamen-
tal[ ] differen[ces]” between section 39-13-506 and sexual assault crimes).
37
See id. at 611 (stating that sexual assault crimes involve “unlawful”
contact, whereas section 39-13-506 does not); see Tenn. Code Ann. § 39-
13-101(a) (defining assault).
38
See Tenn. Code Ann. § 39-13-503(a)(1).
39
Ealey, 959 S.W.2d at 611.
5500 UNITED STATES v. LOPEZ-SOLIS
stances in which the sexual relations are admittedly
consensual.”40
[7] Thus, based on our precedent and the Tennessee courts’
interpretation of the statute, we conclude that section 39-13-
506 encompasses conduct that does not meet the definition of
physical “abuse.”
B. Psychological abuse
[8] The “slight,” consensual sexual penetration of a minor
just under 18 by a 22 year old also is not necessarily psycho-
logically harmful or damaging for two reasons. First, the gov-
ernment has not furnished us with evidence showing such
harm.41 In the absence of evidence,42 we refuse to assume the
existence of harm.43
[9] Second, our prior caselaw — as well as common sense
— suggest that, while consensual underage sex may be psy-
chologically harmful to a young teen,44 it may not be harmful
to an older one.45 For instance, in Baron-Medina, we held that
40
Id.
41
See Pallares-Galan, 359 F.3d at 1101-02 (making the obvious point
that “ ‘[a]buse’ requires . . . conduct that is abusive”).
42
Our own review of the legislative history of Tennessee’s statutory
rape law uncovered no evidence that a purpose of the law was to protect
minors from the psychological repercussions of underage sex. Rather, the
law sought to preserve the sexual “purity,” i.e., chastity, of young, unmar-
ried women. See Ledbetter v. State, 199 S.W.2d 112, 113 (Tenn. 1947)
(interpreting section 39-13-506’s statutory predecessor); State v. Hood,
868 S.W.2d 744, 747 (Tenn. Crim. App. 1993).
43
See United States v. Thomas, 159 F.3d 296, 299 (7th Cir. 1998).
44
See Baron-Medina, 187 F.3d at 1147; accord United States v. Zavala-
Sustaita, 214 F.3d 601, 605 (5th Cir. 2000).
45
See United States v. Melton, 344 F.3d 1021, 1028-29 (9th Cir. 2003)
(suggesting that only in the presence of certain aggravating factors, such
as incest, will a sexual encounter between a 17 year old and an adult nec-
essarily create a “situation of [psychological] dominance and control”).
UNITED STATES v. LOPEZ-SOLIS 5501
consensual sexual contact with a minor under 14 necessarily
involved psychological abuse because a child that young can-
not understand the nature of an adult’s sexual advances.46 Our
society does not criminalize or automatically consider “abu-
sive” similar conduct with a teen who has reached the age of
majority, however. We do not believe something miraculous
happens in the moments separating minority from majority.
To the contrary, it seems logical to conclude that a teen’s
capacity to understand the nature of sexual relations increases
gradually as he or she grows older. Thus, an almost 18 year
old typically will have a higher level of sophistication about
sex and a greater ability to understand the nature and ramifi-
cations of sexual activity than a younger teen or child.47 Con-
sequently, as the victim’s age increases, the concerns we
expressed in Baron-Medina decrease. In the absence of evi-
dence demonstrating psychological risks to older teens from
sexual contact, we hold that section 39-13-506 does not sat-
isfy the categorical test with respect to psychological harm.
[10] In sum, section 39-13-506 is overbroad. The “full
46
187 F.3d at 1147. Similarly, in Pereira-Salmeron, we observed that
sexual contacts between “a child under the age of fourteen” and an adult
often occur as a result of the “coercive power of [the] adult[’s] authority.”
337 F.3d at 1154. Whatever disparity in authority there may be between
a 17 year old and a 22 year old, it does not raise the same risk of psycho-
logical manipulation. See Melton, 344 F.3d at 1028-29.
47
We note that Tennessee law, as well as caselaw interpreting section
39-13-506, implicitly acknowledge the distinction we make between older
teens and younger teens or children. Compare Tenn. Code Ann. § 39-13-
522 (making sexual penetration of a minor under 13 a class A felony),
with Tenn. Code Ann. § 39-13-506 (making the same conduct with a
minor 13 and over a class E felony); see Ealey, 959 S.W.2d at 610-11 (dis-
tinguishing section 39-13-522 from section 39-13-506 based upon the
minor’s capacity to give his or her “effective” — express or implied —
consent to the sexual act and stating that minors 13 and older are capable
of giving effective consent).
5502 UNITED STATES v. LOPEZ-SOLIS
range of conduct” the statute covers includes conduct that is
not necessarily physically or psychologically abusive.48
Our recent decision in Afridi v. Gonzales49 is not to the con-
trary. There, we affirmed the Board of Immigration Appeals’
determination that the phrase “sexual abuse of a minor” under
the Immigration and Nationality Act (“INA”) encompassed a
conviction for the statutory rape of a victim under 18.50 In that
case, “established principles of deference to administrative
agencies”51 narrowed our review to whether the Board’s deter-
mination was “contrary to the plain and sensible meaning of
the [INA].”52 Because we found the Board’s “construction [of
the phrase ‘sexual abuse of a minor’] permissible,” we had to
defer to it.53 In this case, no agency is involved. Thus, we owe
no deference to agency interpretation.54 We are faced with an
entirely different task: reviewing de novo the district court’s
48
See Pallares-Galan, 359 F.3d at 1101-02 (holding that a state statute
that “proscribes conduct that both would and would not constitute ‘sexual
abuse’ ” is overbroad).
We note that the language of the 2003 amendment to USSG § 2L1.2’s
definition of “crime of violence,” if not the label placed upon it, lends sup-
port to our conclusion that statutory rape is not completely encompassed
by the term “sexual abuse of a minor.” As discussed above, free-standing
terms ordinarily are interpreted to have distinct meanings.
49
442 F.3d 1212 (9th Cir. 2006).
50
Id. at 1216; see 8 U.S.C. § 1101(a)(43)(A).
51
Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005).
52
Afridi, 442 F.3d at 1215 (quoting Yeghiazaryan v. Gonzales, 431 F.3d
678, 682 (9th Cir. 2005)) (internal quotation marks omitted).
53
Id. at 1216.
54
See United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 n.2 (9th
Cir. 2000) (rejecting the defendant’s argument that the court must defer to
the Board’s interpretation of the term “aggravated felony” under the INA
for purposes of interpreting the Sentencing Guidelines and stating that “the
[Board] has no special authority to interpret or implement [ ] the Sentenc-
ing Guidelines”); see also Chevron U.S.A. Inc. v. Nat’l Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984) (stating that deference is owed only to
an agency’s interpretation of the statute “which it administers”).
UNITED STATES v. LOPEZ-SOLIS 5503
definition of the phrase “sexual abuse of a minor.” Accord-
ingly, we need not adopt the definition adopted by the Board
to which the panel deferred in Afridi.
VI.
[11] Because we hold that section 39-13-506 is overbroad,
Lopez-Solis’s sentence enhancement was proper only if the
behavior for which he was actually convicted falls within the
meaning of “sexual abuse of a minor” under the modified cat-
egorical approach.55 For example, under this approach, if a
defendant was actually convicted for sexual penetration of a
young teen or child, we would conclude his actual conduct
constituted “sexual abuse of a minor.”56 Our examination of
the facts underlying a defendant’s conviction, however, is limit-
ed.57 We may examine only “documentation or judicially
noticeable facts that clearly establish that the conviction is a
predicate conviction for enhancement purposes, such as the
indictment, the judgment of conviction, jury instructions, a
signed guilty plea, or the transcript from the plea proceedings.”58
Documents such as a police affidavit establishing probable
cause or a pre-sentencing report, which “require [the court] to
make factual determinations that were not necessarily made in
the prior criminal proceeding,” are not judicially noticeable.59
Thus, we must first determine if judicially noticeable facts or
documentation of Lopez-Solis’s actual conduct exist in the
55
See Valencia, 439 F.3d at 1054.
56
See e.g., Pereira-Salmeron, 337 F.3d at 1155.
57
See Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1260-62
(2005) (explaining that a federal court’s examination of a state court con-
viction for sentence enhancement purposes must be limited in order to
avoid “collateral trials” and to protect a defendant’s Sixth Amendment
right to have a jury find the facts necessary to enhance his sentence); Par-
rilla, 414 F.3d at 1043.
58
United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217 (9th Cir.
2005) (internal quotation marks and brackets omitted).
59
Parrilla, 414 F.3d at 1044.
5504 UNITED STATES v. LOPEZ-SOLIS
record. If they do, we can then determine whether that con-
duct meets the federal definition of “sexual abuse of a minor”
using the modified categorical approach.60
[12] Lopez-Solis’s judgment of conviction is the only judi-
cially noticeable document that the Government included in
the record.61 That document states only that Lopez-Solis
pleaded guilty to statutory rape. Accordingly, the record pro-
vides no more information than the fact of Lopez-Solis’s con-
viction. Thus, the modified categorical approach does not
further our inquiry. Because the statute under which Lopez-
Solis was convicted is overbroad and the record does not
establish that his conviction was for conduct actually consti-
tuting “abuse,” the district court erred when it punished him
for conduct that does not satisfy the enhancement.62 Thus, we
must vacate his sentence and remand for resentencing.
CONCLUSION
Tennessee Code section 39-13-506 is overbroad because it
encompasses conduct that does not constitute “abuse.” Absent
evidence demonstrating that Lopez-Solis’s conviction was for
conduct actually constituting “abuse,” the district court erred
when it applied the 16-level sentencing enhancement.
60
See id.
61
The minutes of Lopez-Solis’s federal sentencing, which recite Lopez-
Solis’s date of birth, are not judicially noticeable because they are not “re-
cords of the convicting court.” See Shepard, 125 S. Ct. at 1261 (reaffirm-
ing that “respect for congressional intent and avoidance of collateral trials
require” courts to confine their inquiry to “records of the convicting
court”); Valencia, 439 F.3d at 1054 (declining to take judicial notice of the
defendant’s age at the time he committed the statutory rape); see also
Thomas, 159 F.3d at 299 (same); United States v. Sacko, 178 F.3d 1, 5 n.2
(1st Cir. 1999) (affirming the sentencing court’s judicial notice of the
defendant’s age since his date of birth was written in the state court indict-
ment).
62
See Lopez-Montanez, 421 F.3d at 932.
UNITED STATES v. LOPEZ-SOLIS 5505
SENTENCE VACATED and REMANDED FOR RESEN-
TENCING.
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
Our task in this case is to interpret United States Sentencing
Guideline § 2L1.2. In United States v. Asberry, 394 F.3d 712,
716 (9th Cir.), cert. denied, 126 S. Ct. 198 (2005), we held
that the 2003 amendment to Guideline § 2L1.2 “to list specifi-
cally ‘forcible sex offenses, statutory rape, [and] sexual abuse
of a minor’ ” as three separate kinds of “crimes of violence”
was a “merely” clarifying amendment. (Alteration in origi-
nal.) That holding accords with the Sentencing Commission’s
own interpretation of its 2003 amendment. See U.S. Sentenc-
ing Guidelines Manual app. C, amend. 658, Reason for
Amendment 401-02 (2003) (noting that the 2003 amendment
“clarifies the meaning of the term ‘crime of violence’ ” and
that the enumerated offenses, including statutory rape and
sexual abuse of a minor, “are always classified as ‘crimes of
violence,’ regardless of whether the prior offense expressly
has as an element the use, attempted use, or threatened use of
physical force against the person of another”). We are bound
by that interpretation because “commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative”
except in certain situations that do not apply here. Stinson v.
United States, 508 U.S. 36, 38 (1993).
A clarifying amendment is to be applied retroactively
where, as here, the sentencing took place before the clarifying
amendment was made. United States v. Garcia-Cruz, 40 F.3d
986, 990 (9th Cir. 1994). Accordingly, the majority’s careful
attention to what type of sexual contact with a minor consti-
tuted sexual “abuse” of the minor under the former Guidelines
is, in my view, beside the point. The question we should be
5506 UNITED STATES v. LOPEZ-SOLIS
answering is what constitutes “statutory rape,” which is an
independently sufficient kind of crime of violence under the
Guidelines. See Valencia v. Gonzales, 439 F.3d 1046, 1053
(9th Cir. 2006) (distinguishing Asberry on the ground that
“the Commentary to section 2L1.2 of the Guidelines lists stat-
utory rape as per se a crime of violence”).
The majority contends that we cannot apply the 2003 Sen-
tencing Guidelines to Petitioner because an ex post facto vio-
lation would result. I disagree. A clarifying amendment, by
definition, creates no new law, but instead merely explains an
already existing guideline. See United States v. Chea, 231
F.3d 531, 539 (9th Cir. 2000) (noting that there is no ex post
facto violation if an amendment to the Guidelines merely clar-
ifies its substance). As we held in Asberry, and as the Sen-
tencing Commission made clear in 2003, statutory rape and
sexual abuse of a minor always fell within the general classifi-
cation of a “crime of violence,” so any cases holding to the
contrary were erroneous interpretations of the Guidelines.
The majority’s reliance on United States v. Alfaro, 336 F.3d
876, 883 (9th Cir. 2003), is misplaced because Alfaro
involved a substantive amendment to the Sentencing Guide-
lines. We have held, however, that the 2003 amendment that
we consider here was “clarifying” because the Commission
was just explaining its meaning in more detail. Asberry, 394
F.3d at 716. Indeed, the Alfaro court reaffirmed that a clarify-
ing amendment—like this one—applies retroactively without
resulting in an ex post facto violation. 336 F.3d at 883.
Tennessee Code Annotated section 39-13-506(a) defines
the crime of “statutory rape,” which is a felony, as “sexual
penetration of a victim by the defendant . . . when the victim
is at least thirteen (13) but less than eighteen (18) years of age
and the defendant is at least four (4) years older than the vic-
tim.” Were it to matter whether that felony categorically poses
potential risks of physical injury, pregnancy, sexually trans-
mitted disease, or psychological harm, I would hold that it
UNITED STATES v. LOPEZ-SOLIS 5507
does, notwithstanding the generous definition of “sexual pen-
etration” in Tennessee Code Annotated section 39-13-501(7).
In part those potential harms arise from the statutorily
required minimum age difference between the defendant and
the victim.
As the majority properly notes, Defendant Alfredo Lopez-
Solis pleaded guilty in Tennessee to the felony of “statutory
rape.” The Guidelines require no more to demonstrate that he
stands convicted of a “crime of violence.”
Additionally, even if we had to reach the modified categori-
cal approach, the majority’s interpretation of the judgment of
conviction is incomplete whether “sexual abuse of a minor”
or “statutory rape” is the appropriate category to consider. On
its face the judgment shows that the indictment charged the
Class B felony of “rape,” but that Defendant instead pleaded
guilty to “statutory rape,” a Class E felony. In Tennessee, the
Class B felony of “rape” requires the “unlawful sexual pene-
tration of a victim by the defendant” to be accompanied by
“[f]orce or coercion . . . to accomplish the act,” or a known
lack of consent, or mental or physical incapacity, or fraud.
Tenn. Code Ann. § 39-13-503; see Rivas-Gomez v. Gonzales,
441 F.3d 1072, 1077 (9th Cir. 2006) (concluding that “all fel-
ony rape—whatever the methodology of the offender—
appears to us to fall above the line that might separate aggra-
vated from non-aggravated rape felonies—if there is such a
thing”). From the judgment we know, at a minimum, that the
potential for violence or harm to the victim actually was pres-
ent, in the eyes of a Tennessee grand jury.
Accordingly, I would affirm the sentence.