United States v. Baza-Martinez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 05-10282
v.
RUBEN BAZA-MARTINEZ, aka Ruben  D.C. No.
CR-04-01640-JMR
Baza-Martines, Ruben Baza
OPINION
Martinex,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
April 5, 2006—San Francisco, California
Filed September 26, 2006
Before: Betty B. Fletcher, Robert R. Beezer, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge B. Fletcher
11951
11954 UNITED STATES v. BAZA-MARTINEZ
COUNSEL
Micaela Portillo, Assistant Federal Public Defender, Tucson,
Arizona, argued the case for the appellant; Jon M. Sands, Fed-
eral Public Defender, and Brian I. Rademacher, Assistant
Federal Public Defender, Tucson, Arizona, were on the briefs.
Elizabeth Berenguer, Assistant U.S. Attorney, Tucson, Ari-
zona, argued the case for the appellee; Paul K. Charlton,
United States Attorney, and Christina M. Cabanillas, Appel-
late Chief, were on the briefs.
OPINION
B. FLETCHER, Circuit Judge:
I.
Ruben Baza-Martinez appeals his seventy-month sentence,
following his guilty plea to illegal re-entry after deportation,
in violation of 8 U.S.C. § 1326. We remand for resentencing.
Baza-Martinez contends that the imposition of a sixteen-
level sentencing enhancement was not justified because his
prior felony conviction under North Carolina General Statute
(N.C.G.S.) § 14-202.1, for taking indecent liberties with a
child, is not “sexual abuse of a minor,” a “crime of violence”
under United States Sentencing Guidelines (U.S.S.G.)
§ 2L1.2(b)(1)(A)(ii). Baza-Martinez also challenges the dis-
trict court’s decisions not to grant his requests for a downward
adjustment for acceptance of responsibility and for a down-
ward departure based on cultural assimilation.
The record contains no documents that reveal the specifics
of Baza-Martinez’s conduct. As we are unable to undertake
the modified categorical approach, we decide this case using
UNITED STATES v. BAZA-MARTINEZ 11955
the categorical approach outlined in Taylor v. United States,
495 U.S. 575 (1990). Employing the categorical approach and
considering the full range of conduct criminalized by
N.C.G.S. § 14-202.1, we hold that a conviction under that
statute is not necessarily a “crime of violence,” as defined by
U.S.S.G. § 2L1.2(b)(1)(A)(ii) to include “sexual abuse of a
minor.” We agree with Baza-Martinez that N.C.G.S. § 14-
202.1 proscribes some conduct that does not categorically
constitute “sexual abuse of a minor” because that statute pro-
hibits conduct that is not necessarily physically or psychologi-
cally harmful, and therefore, is not necessarily “abuse.”
Because the record contains no documents that we may use
under the modified categorical approach that would reveal the
specifics of Baza-Martinez’s conduct, we must decide this
case using the categorical approach.
We vacate Baza-Martinez’s sentence and remand to the dis-
trict court for resentencing.
II.
Ruben Baza-Martinez was born in Mexico in 1978; he
came to the United States with his family when he was 14.
His mother and siblings moved from Oregon to North Caro-
lina and remain there. His father resides in Cutzmala, Mexico.
Baza-Martinez attended school in Oregon and North Carolina,
but he did not graduate from high school. He worked in North
Carolina from 1995 until 2001.
On June 4, 2001, Baza-Martinez was convicted of taking
indecent liberties with a child in violation of N.C.G.S. § 14-
202.1. He received a suspended sentence of 18 to 22 months,
36 months probation, and 45 days in custody with credit for
45 days served. Shortly thereafter, on September 19, 2001, a
petition to revoke Baza-Martinez’s probation was filed, con-
tending that he had failed to report to and participate in sex-
offender treatment as directed, and that he had failed to main-
tain employment. On November 13, 2001, he was ordered to
11956 UNITED STATES v. BAZA-MARTINEZ
enter residential treatment for 90-120 days. On December 31,
2001, Baza-Martinez was handed over to immigration author-
ities. He was deported on February 15, 2002.
In July 2004, Baza-Martinez attempted to re-enter the
United States for a short stay to visit his family living in
North Carolina — he planned to return to Mexico. On July
14, 2004, a police officer in Benson, Arizona stopped a vehi-
cle for a traffic violation and informed Border Patrol that he
suspected that illegal immigrants were in the car. Baza-
Martinez was among them; he admitted his prior deportation
and his illegal re-entry.
Baza-Martinez pleaded guilty to the charge of illegal re-
entry, in violation of 8 U.S.C. § 1326, without a plea bargain.
He did not admit to a prior felony or a prior aggravated felony
conviction. The pre-sentence report (PSR) calculated a base
offense level of 8 and recommended a sixteen-level upward
adjustment to an offense level of 24, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on Baza-Martinez’s 2001 felony
conviction in North Carolina, concluding that this conviction
qualified as “sexual abuse of a minor” and therefore as a
“crime of violence.” Baza-Martinez objected in the district
court to the PSR’s characterization of this conviction as “sex-
ual abuse of a minor.”
The PSR recommended an adjusted offense level of 24 to
be downwardly adjusted three levels from 24 to 21 for accep-
tance of responsibility. One level of adjustment was contin-
gent upon the government’s motion. The government then
informed the district court that it did not intend to move for
an additional reduction for acceptance of responsibility. The
district court set the total offense level at 22, accepting the
PSR’s calculations but incorporating the government’s deci-
sion not to move for the final downward adjustment for
acceptance of responsibility. Nothing in the record suggests
that the prosecutor’s motive was retaliatory.
UNITED STATES v. BAZA-MARTINEZ 11957
Baza-Martinez also sought a downward departure based on
cultural assimilation. The district court declined to depart
from the guidelines. Based on an offense level of 22, a crimi-
nal history category of IV, and a resulting guidelines range of
63-78, the district court sentenced Baza-Martinez to 70
months imprisonment. Baza-Martinez timely appealed.
III.
[1] We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Cantrell, 433 F.3d 1269,
1279 (9th Cir. 2006).
U.S.S.G. § 2L1.2(b)(1)(A) provides for a sixteen-level sen-
tencing enhancement where “the defendant previously was
deported . . . after . . . a conviction for a felony that is . . . a
crime of violence.” Application Note 1(B)(iii) to this provi-
sion defines “crime of violence” to include “sexual abuse of
a minor.” We must determine whether Baza-Martinez’s 2001
conviction under N.C.G.S. § 14-202.1 necessarily constitutes
“sexual abuse of a minor.”
[2] The categorical approach outlined in Taylor governs our
inquiry. Under the categorical approach, we must not “exam-
ine the conduct underlying the prior offense, but ‘look only to
the fact of conviction and the statutory definition of the prior
offense.’ ” United States v. Rivera-Sanchez, 247 F.3d 905,
907-08 (9th Cir. 2001) (en banc) (quoting Taylor, 495 U.S. at
602). “[I]n order for a violation of the state statute to qualify
as a predicate offense, the full range of conduct covered by
the state statute must fall within the scope of the federal statu-
tory provision.” United States v. Pallares-Galan, 359 F.3d
1088, 1099-1100 (9th Cir. 2004) (internal quotation marks
omitted); see also United States v. Baron-Medina, 187 F.3d
1144, 1146 (9th Cir. 1999). As a result, “our categorical
inquiry need focus only on the conduct falling at the least
egregious end of [the state statute’s] range of conduct.”
11958 UNITED STATES v. BAZA-MARTINEZ
United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.
2006) (internal quotation marks omitted).
IV.
[3] We are unable to apply the modified categorical
approach to determine whether the specific conduct for which
Baza-Martinez was convicted constitutes “sexual abuse of a
minor” because the record is devoid of any documents we are
permitted to consider (signed plea agreements, plea tran-
scripts, the indictment, minutes from the change of plea hear-
ing and judgment). See United States v. Hernandez-
Hernandez, 431 F.3d 1212, 1217-18 (9th Cir. 2005). In plea
cases, we may also consider “the statement of the factual
basis for the charge,” as shown by a plea colloquy or written
plea agreement, or by a record of findings of fact adopted by
the defendant upon entering his plea. Id. at 1218 (citing Shep-
ard v. United States, 544 U.S. 13 (2005)). Here, there is no
plea agreement or documents establishing the factual basis for
the charge. Furthermore, the indictment and minutes from the
plea hearing do not address the prior conviction. As the dis-
trict judge correctly stated, “we’re back to what the North
Carolina statute prohibits.”
V.
Section 14-202.1 of the General Statutes of North Carolina
provides:
(a) A person is guilty of taking indecent liberties
with children if, being 16 years of age or more and
at least five years older than the child in question, he
either:
(1) Willfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of
either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire; or
UNITED STATES v. BAZA-MARTINEZ 11959
(2) Willfully commits or attempts to commit any
lewd or lascivious act upon or with the body or any
part or member of the body of any child of either sex
under the age of 16 years.
N.C. Gen. Stat. § 14-202.1 (2005).
Baza-Martinez contends that, while some conduct covered
by this statute does fall under the Ninth Circuit’s definition of
“sexual abuse of a minor,” the “full range of conduct” does
not because the Ninth Circuit’s definition requires psycholog-
ical or physical injury to the victim.1 Baza-Martinez argues
that § 14 202.1 includes a range of conduct too broad for the
categorical approach to permit a conviction under that statute
to be characterized as “sexual abuse of a minor” and therefore
as a “crime of violence” under U.S.S.G. § 2L1.2. We agree.
A. Ninth Circuit’s Definition of “Sexual Abuse of a
Minor”
[4] “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 statu-
tory words.” Lopez-Solis, 447 F.3d at 1206-07 (quoting
United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th
Cir. 2001)). To do this, we “couple[ ] the dictionary definition
of ‘abuse’ with the common understanding of ‘sexual’ and
‘minor.’ ” Trinidad-Aquino, 259 F.3d at 1143. The common
1
Baza-Martinez argues that touching is a necessary element of the crime
of “sexual abuse of a minor.” We note that while we have held in a variety
of cases that harm may be physical or psychological, all of those cases
have involved statutes that have touching as an element. We have never
held that psychological or emotional harm alone, without touching, would
be enough to support a conviction for “sexual abuse of a minor.” On the
other hand, we have never held that “sexual abuse of a minor” requires
touching. Our holding today is grounded in our determination that the
North Carolina statute focuses on the conduct of the perpetrator and not
on the effect on the minor, i.e., “sexual abuse.”
11960 UNITED STATES v. BAZA-MARTINEZ
understandings of “sexual” and “minor” cover the conduct
prohibited by § 14-202.1 which prohibits taking liberties with
a “minor” under the age of 16 to gratify one’s “sexual desire.”
But, the conduct prohibited categorically must also consti-
tute “abuse.” See Lopez-Solis, 447 F.3d at 1207 (deciding that
a Tennessee statutory rape law does not constitute a convic-
tion for “sexual abuse of a minor” because the prohibited con-
duct is not categorically “abuse”). Lopez-Solis summarized
the law of our court that defines “abuse”: “Employing the dic-
tionary definition, we have defined abuse as ‘misuse . . . to
use or treat so as to injure, hurt, or damage . . . to commit
indecent assault on.’ ” 447 F.3d at 1207 (citing Pallares-
Galan, 359 F.3d at 1100). Applying that definition of
“abuse,” we held that the Tennessee statutory rape law was
not categorically “sexual abuse of a minor” because the full
range of conduct covered by the law was “not necessarily
physically or psychologically abusive.” Id. at 1209 (emphasis
added).
The definition of “abuse” as physical or psychological
harm finds support in both Pallares-Galan and Baron-
Medina. Pallares-Galan held that a misdemeanor conviction
under California Penal Code § 647.6(a) does not support a
finding of “sexual abuse of a minor.” 359 F.3d at 1102. Sec-
tion 647.6(a) reads in relevant part: “Every person who
annoys or molests any child under the age of 18 shall be pun-
ished by a fine not exceeding one thousand dollars . . . .” Cal.
Penal Code § 647.6. We noted that conduct may be “irritat-
ing” or “disturbing” without rising to the level that would be
injurious, hurtful or damaging. Pallares-Galan, 359 F.3d at
1101 (citing examples that provided the basis for convictions
under this statute such as urinating in a public place in the
presence of a child). Cal. Penal Code § 647.6 was overbroad
because it did not necessarily require harm or injury, whether
psychological or physical.
Conversely, our court in Baron-Medina held that the con-
duct reached by Cal. Penal Code § 288(a) constitutes “sexual
UNITED STATES v. BAZA-MARTINEZ 11961
abuse of a minor” and noted that “[t]he use of young children
for the gratification of sexual desires constitutes abuse.” 187
F.3d at 1147. The definition of “abuse” employed is consis-
tent with our definitions in Pallares-Galan, 359 F.3d at 1102,
and Lopez-Solis, 447 F.3d at 1207, because it requires “use”
of young children, implying harmful or injurious conduct, and
discusses “abuse” in the context of conduct that is undoubt-
edly psychologically harmful. Id. (noting that § 288(a) covers
the conduct described in People v. Imler, 9 Cal. App. 4th
1178, 1182 (Cal. Ct. App. 1992), in which the perpetrator
telephoned a child and told him that he would never see his
father again if he did not disrobe and touch himself).
B. Scope of conduct covered by N.C.G.S. § 14-202.1
A conviction under § 14-202.1 requires proof of the follow-
ing elements:
(1) the defendant was at least 16 years of age, and
more than five years older than the victim, (2) the
victim was under 16 years of age at the time the
alleged act or attempted act occurred, and (3) the
defendant willfully took or attempted to take an
immoral, improper, or indecent liberty with the vic-
tim for the purpose of arousing or gratifying sexual
desire.
State v. McClees, 424 S.E.2d 687, 689 (N.C. Ct. App. 1993).
Certainly some of the conduct criminalized by this statute
would fall under our court’s definition of “sexual abuse of a
minor.” E.g., State v. Laney, 631 S.E.2d 522, 522 (N.C. Ct.
App. 2006) (describing how defendant awoke the victim in
her bed, touched her breasts, put his hand under the waistband
of her pants, and then touched her through her pants).
[5] Beyond such cases, however, the range of conduct pro-
scribed is very broad. This is exemplified in North Carolina’s
case law. “Indecent liberties are defined as such liberties as
11962 UNITED STATES v. BAZA-MARTINEZ
the common sense of society would regard as indecent and
improper.” McClees, 424 S.E.2d at 690 (internal quotation
marks omitted). The “legislative policy inherent in” this pro-
vision is “to provide ‘children broader protection than avail-
able under other statutes proscribing sexual acts.’ ” Id. at 689
(quoting State v. Etheridge, 352 S.E.2d 673, 682 (N.C.
1987)); accord State v. Every, 578 S.E.2d 642, 648 (N.C. Ct.
App. 2003) (noting the broad scope of the statute’s protec-
tion). In fact, the North Carolina courts have been explicit in
holding that “mere words” may constitute taking an indecent
liberty with a child. Every, 578 S.E.2d at 647. “All that is
required is that at the time of the immoral, improper, or inde-
cent liberty, the defendant must be in either the actual or con-
structive presence of the child.” Id. at 648 (internal quotation
marks omitted). “[A] variety of acts may be considered inde-
cent and may be performed at varied distances from the vic-
tim, yet still be considered ‘with’ a child ‘for the purpose of
arousing or gratifying sexual desire.’ ” McClees, 424 S.E.2d
at 689.
[6] Whereas the touchstone of “abuse” in our case law is
“hurt,” “injury,” or “maltreatment,” Lopez-Solis, 447 F.3d at
1207; Pallares-Galan, 359 F.3d at 1100; Baron-Medina, 187
F.3d at 1147, the touchstone of the crime of indecent liberties
under N.C.G.S. § 14-202.1, as construed by the North Caro-
lina Supreme Court, is the perpetrator’s mens rea:
The evil the legislature sought to prevent in this con-
text was the defendant’s performance of any
immoral, improper, or indecent act in the presence of
a child “for the purpose of arousing or gratifying
sexual desire.” Defendant’s purpose for committing
such act is the gravamen of this offense; the particu-
lar act performed is immaterial.
State v. Hartness, 391 S.E.2d 177, 180 (N.C. 1990) (emphasis
added) (citing State v. Etheridge, 352 S.E.2d 673 (N.C.
1987)). By contrast, we made clear in Pallares-Galan that
UNITED STATES v. BAZA-MARTINEZ 11963
“ ‘[a]buse’ requires more than improper motivation; it
requires conduct that is abusive.” 359 F.3d at 1101-02.
Because § 14-202.1, as interpreted by Hartness, 391 S.E.2d at
180, focuses on improper motivation rather than “conduct that
is abusive,” id., such as psychological or physical harm, it is
overbroad.
While we agree with the government that physical harm or
touching is not required in order for conduct to be abusive,
§ 14-202.1 prohibits conduct that need not be either physi-
cally or psychologically harmful to the minor. In State v.
McClees, 424 S.E.2d 687, a North Carolina court held that the
defendant had violated § 14-202.1 when he secretly set up a
video camera in an office and asked a minor to undress for the
purpose of filming her without her knowledge. The victim was
made aware of the videotape only after she was 21-years-old,
see id. at 688, and therefore was not psychologically harmed
until she was no longer a minor. Since § 14-202.1 does not
require physical or psychological harm to the victim, we con-
clude that a conviction under § 14-202.1 is not categorically
“abuse of a minor.”
VI.
We reach a different holding than two of our sister circuits
as to whether N.C.G.S. § 14-202.1 is “sexual abuse of a
minor.” See United States v. Izaguirre-Flores, 405 F.3d 270
(5th Cir. 2005); Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir.
2001) (per curiam). In Bahar, the Eleventh Circuit deferred to
the BIA’s interpretation of the North Carolina statute. 264
F.3d at 1311. That deference may have been unnecessary in
that the interpretation of a criminal statute is not within the
particular expertise of the agency as would be the interpreta-
tion of immigration statutes. In any event, by contrast, here
we are reviewing de novo the district court’s determination.
We recognized this very same distinction in Lopez-Solis, 447
F.3d at 1209-10 (distinguishing Afridi v. Gonzales, 442 F.3d
1212 (9th Cir. 2006)). To the extent the Bahar court itself
11964 UNITED STATES v. BAZA-MARTINEZ
analyzed the North Carolina statute, it focused on the culpa-
bility of the perpetrator — the willful intent to arouse or grat-
ify sexual desire — not the effect on the minor. Bahar, 264
F.3d at 1312.
The Fifth Circuit in Izaguirre-Flores took an unusual
approach to its analysis. Rather than conducting a Taylor
analysis, it stated that it preferred a “common sense”
approach. 405 F.3d at 275. It conceded that “[i]n similar
cases, when we have been called on to determine whether a
violation of a state statute constitutes a specifically enumer-
ated offense under Application Note (1)(B)(iii) [U.S.S.G.
§ 2L1.2(b)(1)(A)(ii)], we have held that when the enumerated
offense under the Guidelines encompasses a narrower range
of conduct than that prohibited by the state statute, we cannot
hold as a matter of law that the sentencing enhancement is
proper.” Id. at 276-77. Then following its “common sense”
approach, however, the court said it refused to read the statute
as criminalizing acts that did not involve “overt sexual acts,”
eliminating other conduct that would be included were the
statute broadly though literally read. Id. at 277. Like the
Bahar court, it focused on the statutory language “for the pur-
pose of arousing or gratifying sexual desire” rather than the
harm to the minor. Id. We fault its reasoning both for reading
out of the statute some acts that the statute clearly includes
and focusing on the wrong issue. We reiterate that whether
sexual abuse of a minor is an element of all crimes prohibited
by the statute is the key consideration.
VII.
[7] Our case law recognizes that either psychological or
physical harm is necessary to constitute “abuse.” Because
N.C.G.S. § 14-202.1 does not make psychological or physical
harm to the minor a necessary element of the crimes it pro-
scribes, we conclude that Baza-Martinez’s conviction under
N.C.G.S. § 14-202.1 does not qualify as “sexual abuse of a
minor” and therefore is not a “crime of violence” under
UNITED STATES v. BAZA-MARTINEZ 11965
U.S.S.G. § 2L1.2. Accordingly, we vacate the sentence and
remand to the district court for resentencing in accordance
with this opinion, all applicable provisions of the Sentencing
Guidelines, and 18 U.S.C. § 3553(a).
SENTENCE VACATED; REMANDED.