Toledo-Castillo v. Ashcroft

MEMORANDUM^***

Marcos Williams Toledo-Castillo argues that his conviction under California Penal Code § 261.5(a) for unlawful sexual intercourse with a minor is not an “aggravated felony.”¹ 8 U.S.C. § 1101(a)(43) defines an aggravated felony offense to include “sexual abuse of a minor.” In US v. Baron-Medina, we concluded that a conviction under Cal.Penal Code § 288(a), which prohibits lewd or lascivious acts on children under age 14, qualified as “sexual abuse of a minor” and, hence, an “aggravated felony” within the meaning of the INA.² We interpreted the undefined term “sexual abuse of a minor” by employing the ordinary, contemporary, and common meaning of the words that Congress used, and then determining whether or not Section 288(a) fell within it.³

The elements of a Section 261.5 offense are: (1) a person 21 years of age or older; (2) engaged in an act of sexual intercourse; (3) with a person under the age of 16; and (4) these persons were not married to each other at the time of the act of sexual intercourse.⁴ The conduct reached by Section 261.5 indisputably falls within the common, everyday meanings of the words “sexual” and “minor.” Toledo-Castillo’s act constitutes sexual abuse of a minor, an aggravated felony. Since Toledo-Castillo was convicted of an aggravated felony, we lack jurisdiction to hear this appeal and therefore dismiss the petition.⁵

Petition for review DISMISSED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . While Cal.Penal Code § 261.5 allows for both felony and misdemeanor convictions, Toledo-Castillo has never argued that he was not convicted of a felony under § 261.5. His argument has been that although he was convicted of a felony, it was not "aggravated.”

2 . United States v. Baron-Medina, 187 F.3d 1144, 1146 (1999); see also United States v. Mendoza-Iribe, 198 F.3d 742, 745 (9th Cir. 1999) (holding that under the sentencing guidelines, a conviction for sexual penetration with an object in violation of Cal.Penal Code § 289(j) constituted sexual abuse of a minor).

3 . Baron-Medina, 187 F.3d at 1146.

4 . People v. Scott, 83 Cal.App.4th 784, 794 n. 4, 100 Cal.Rptr.2d 70, 77 n. 4 (2000).

5 . See Castro-Baez v. Reno, 217 F.3d 1057, 1058 (9th Cir.2000).