United States v. Bertan-Manguia ( 2007 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,             
    Plaintiff-Appellee,         No. 06-30118
    v.
           D.C. No.
    CR-05-00169-LRS
    CANDELARIO SILVESTRE BELTRAN-
    MUNGUIA,                                     OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Washington
    Lonny R. Suko, District Judge, Presiding
    Argued and Submitted
    November 14, 2006—Seattle, Washington
    Filed June 7, 2007
    Before: Pamela Ann Rymer, Marsha S. Berzon, and
    Richard C. Tallman, Circuit Judges.
    Opinion by Judge Berzon;
    Concurrence by Judge Rymer;
    Concurrence by Judge Tallman
    6873
    UNITED STATES v. BELTRAN-MUNGUIA            6877
    COUNSEL
    Kathleen Moran, Federal Defenders of Eastern Washington &
    Idaho, Spokane, Washington, for the defendant-appellant.
    James A. McDevitt, Acting United States Attorney for the
    Eastern District of Washington, Spokane, Washington;
    Pamela J. Byerly, Assistant United States Attorney, Spokane,
    Washington, for the plaintiff-appellee.
    OPINION
    BERZON, Circuit Judge:
    Candelario Silvestre Beltran-Munguia pleaded guilty, under
    8 U.S.C. § 1326, to unlawful reentry into the United States.
    Sentences for that offense are governed by United States Sen-
    tencing Guideline § 2L1.2. This case presents the question
    whether a prior felony conviction under Oregon Revised Stat-
    ute (ORS) section 163.425 for sexual abuse in the second
    degree qualifies as a “crime of violence” for purposes of that
    guideline. We hold that it does not, both because the state
    statute does not make force — be it used, attempted, or threat-
    ened — an element of the crime and because the crime does
    not constitute a “forcible sex offense” within the meaning of
    the applicable guideline. Because the district court concluded
    otherwise, we vacate Beltran-Munguia’s sentence and remand
    for resentencing.
    Beltran-Munguia also contends that his sentence violates
    his Fifth and Sixth Amendment rights because the district
    judge found facts about his prior conviction that allowed him
    to increase his sentence beyond the two-year maximum
    allowed under 8 U.S.C. § 1326(a). This argument is fore-
    closed by Supreme Court and Ninth Circuit precedents.
    6878             UNITED STATES v. BELTRAN-MUNGUIA
    I
    The base offense level for a violation of § 1326 is eight.
    U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a). Where the
    defendant was previously deported after being convicted of a
    felony that constitutes a “crime of violence,” the offense level
    goes up by sixteen levels. 
    Id. § 2L1.2(b)(1)(A)(ii).
    The presentence report (“PSR”) on Beltran-Munguia noted
    that he had been previously convicted for sexual abuse in the
    second-degree under ORS section 163.425 and recommended
    that the district court impose the sixteen-level enhancement
    on the basis of that conviction. Beltran-Munguia objected to
    this recommendation, arguing that his prior conviction did not
    constitute a “crime of violence” as defined for purposes of
    § 2L1.2(b)(1)(A)(ii), because the Oregon statute criminalizes
    nonconsensual sex and can be committed without the use of
    force. The district court disagreed, increased Beltran-
    Munguia’s offense level by the recommended sixteen levels,
    and sentenced him to a 57-month prison term. Beltran-
    Munguia timely appealed.1
    1
    The Sentencing Guidelines are, of course, now advisory rather than
    mandatory. See United States v. Booker, 
    543 U.S. 220
    , 245 (2005). This
    court has twice suggested that there are circumstances in which determin-
    ing the precise Guidelines sentence may be more complicated than it is
    worth, and so may not be required. See United States v. Jennings, 
    439 F.3d 604
    , 606 n.3 (9th Cir. 2006); United States v. Cantrell, 
    433 F.3d 1269
    ,
    1279 n.3 (9th Cir. 2006); see also United States v. Crosby, 
    397 F.3d 103
    ,
    112 (2d Cir. 2005) (noting situations where “precise calculation of the
    applicable Guidelines range may not be necessary”), abrogation on other
    grounds recognized by United States v. Lake, 
    419 F.3d 111
    , 113 n.2 (2d
    Cir. 2005). We leave that possibility open again. Here, however, the dis-
    trict court did not follow that procedure but calculated a specific Guideline
    level and then followed it. We therefore review the Guideline determina-
    tion made and followed by the district court, in accord with our post-
    Booker precedents. See, e.g., United States v. Gonzalez-Perez, 
    472 F.3d 1158
    , 1159 (9th Cir. 2007); United States v. Baza-Martinez, 
    464 F.3d 1010
    , 1013 (9th Cir. 2006).
    UNITED STATES v. BELTRAN-MUNGUIA                      6879
    We review de novo the district court’s decision that a
    defendant’s prior conviction qualifies for a sentencing
    enhancement under U.S.S.G. § 2L1.2(b). See United States v.
    Gonzalez-Perez, 
    472 F.3d 1158
    , 1159 (9th Cir. 2007).
    II
    For the purpose of § 2L1.2(b)(1)(A)(ii), a “crime of vio-
    lence” is defined as:
    any of the following: murder, manslaughter, kidnap-
    ping, aggravated assault, forcible sex offenses, statu-
    tory rape, sexual abuse of a minor, robbery, arson,
    extortion, extortionate extension of credit, burglary
    of a dwelling, or any 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.
    U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii)
    (emphases added). Applying this definition, second-degree
    sexual abuse in Oregon constitutes a “crime of violence” only
    if: (1) the crime qualifies as a “forcible sex offense,” a term
    left undefined by the guidelines; or (2) conviction of the crime
    requires proof of “the use, attempted use, or threatened use of
    physical force against the person of another.”2
    A
    We begin with the latter possibility.
    [1] In Taylor v. United States, 
    495 U.S. 575
    , 600-02 (1990),
    the Supreme Court instructed that in determining whether a
    2
    Because ORS section 163.425 makes no mention of the age of the vic-
    tim, it is clear from the face of the statute that second-degree sexual abuse
    cannot be categorically classified as “sexual abuse of a minor” or “statu-
    tory rape.”
    6880          UNITED STATES v. BELTRAN-MUNGUIA
    prior conviction meets the requirements of a federal recidi-
    vism provision, courts should ordinarily look only to the cov-
    erage of the statute of conviction and not to the specific
    conduct involved in the defendant’s conviction. This exami-
    nation is necessarily limited to “the elements of the crimes of
    which the defendant was previously convicted.” United States
    v. Selfa, 
    918 F.2d 749
    , 751 (9th Cir. 1990). To constitute an
    “element” of a crime, the particular factor in question needs
    to be “a ‘constituent part’ of the offense [that] must be proved
    by the prosecution in every case to sustain a conviction under
    a given statute.” United States v. Hasan, 
    983 F.2d 150
    , 151
    (9th Cir. 1992) (per curiam) (internal quotation marks omit-
    ted).
    [2] A plain reading of ORS section 163.425 makes clear
    that force — used, attempted, or threatened — is decidedly
    not an “element” of the crime of second-degree sexual abuse
    in Oregon. Instead, the victim’s lack of consent is the crime’s
    defining characteristic.
    Specifically, under the state statute,
    [a] person commits the crime of sexual abuse in the
    second degree when that person subjects another
    person to sexual intercourse, deviate sexual inter-
    course, or . . . penetration of the vagina, anus or
    penis with any object other than the penis or mouth
    of the actor and the victim does not consent thereto.
    OR. REV. STAT. § 163.425(1) (emphasis added). Thus, the gov-
    ernment bears no burden of proving force extrinsic to the act
    of penetration. By comparison, when prosecuting a defendant
    for either rape in the first degree or sexual abuse in the first
    degree     under     ORS       sections   163.375(1)(a)     and
    163.427(1)(a)(B), respectively, the state bears the burden of
    proving that the victim was “subjected to forcible compul-
    sion.” 
    Id. §§ 163.375(1)(a),
    163.427(1)(a)(B) (emphasis
    added).
    UNITED STATES v. BELTRAN-MUNGUIA                    6881
    That the same “forcible compulsion” requirement does not
    apply to second-degree sexual abuse is evident not only from
    the language of ORS section 163.425 but also from its legisla-
    tive history. That history makes clear that ORS section
    163.425 was enacted to fill a specific “omission” in the Ore-
    gon criminal code — namely, the failure to make criminal
    “subject[ing] another to sexual intercourse without the vic-
    tim’s consent — but not by forcible compulsion.” See State
    v. Stamper, 
    106 P.3d 172
    , 177-78 (Or. Ct. App.) (discussing
    a 1983 amendment to Oregon’s second degree sexual abuse
    statute), review denied, 
    119 P.3d 790
    (Or. 2005).3
    That force, actual or inchoate, is not a required element of
    ORS section 163.425 is further corroborated by the Oregon
    appellate decisions that have interpreted the statute. Those
    decisions make clear that a defendant can be convicted of
    second-degree sexual abuse where the victim professed con-
    sent but was legally incapable of giving it. See 
    id. at 179;
    State v. Mezick, 
    820 P.2d 849
    , 850 (Or. Ct. App. 1991); State
    v. Landino, 
    590 P.2d 737
    , 739 (Or. Ct. App. 1979).
    ORS section 163.315 delineates four types of legal incapac-
    ity that apply to all sexual offenses listed in the Oregon crimi-
    nal code, including second-degree sexual abuse. See OR. REV.
    STAT. § 163.315; 
    Landino, 590 P.2d at 739
    (“That all four
    types of legal incapacity set out in ORS 163.315 were
    intended to apply to all sexual offenses is clear.”):4 Under
    ORS section 163.315(1):
    3
    The original second-degree sexual abuse statute was adopted in 1971,
    but treated the offense as only a Class A misdemeanor. See OR. REV. STAT.
    § 163.415 (1971). In 1983, the statute was codified as section 163.425 and
    reclassified as a Class C felony. We note that Oregon now also criminal-
    izes this exact “omission” as rape in the first degree. See OR. REV. STAT.
    § 163.375(1)(d).
    4
    Landino interpreted an earlier version of Oregon’s second-degree sex-
    ual abuse statute, codified as ORS section 163.415, which defined the
    offense, in relevant part, as follows:
    6882             UNITED STATES v. BELTRAN-MUNGUIA
    A person is considered incapable of consenting to a
    sexual act if the person is:
    (a)   Under 18 years of age;
    (b)    Mentally defective;
    (c)   Mentally incapacitated; or
    (d)    Physically helpless.
    OR. REV. STAT. § 163.315(1). ORS section 163.305, in turn,
    defines the terms “mentally defective,” “mentally incapacitat-
    ed,” and “physically helpless.” 
    Id. § 163.305(3)-(5).
    To be
    “mentally defective,” for example, “means that a person suf-
    fers from a mental disease or defect that renders [her] incapa-
    ble of appraising the nature of the conduct of the person.” 
    Id. § 163.305(3).
    To be “mentally incapacitated,” the victim must
    have been
    rendered incapable of appraising or controlling the
    conduct of the person at the time of the alleged
    A person commits the crime of sexual abuse in the second degree
    if he subjects another person to sexual contact; and
    (a)   The victim does not consent to the sexual contact; or
    (b) The victim is incapable of consent by reason of being
    mentally defective, mentally incapacitated or physically
    helpless.
    OR. REV. STAT. § 163.415(1) (1971). The current version of Oregon’s
    second-degree sexual abuse statute, codified as ORS section 163.425, con-
    tains a more specific definition of the type of “sexual contact” at issue and
    has also replaced subparts (a) and (b) with the general language “the vic-
    tim does not consent thereto.” Despite this change, Landino remains good
    law, and the new language regarding consent still encompasses the four
    categories of legal incapacity listed in section 163.315. See 
    Stamper, 106 P.3d at 176
    .
    UNITED STATES v. BELTRAN-MUNGUIA              6883
    offense because of the influence of a controlled or
    other intoxicating substance administered to the per-
    son without the consent of the person or because of
    any other act committed upon the person without
    [her] consent.
    
    Id. § 163.305(4).
    Finally, to be “physically helpless,” the vic-
    tim must have been “unconscious or for any other reason
    [was] physically unable to communicate unwillingness to an
    act.” 
    Id. § 163.305(5).
    Given the applicability of ORS section 163.315 to ORS
    section 163.425, a perpetrator could commit second-degree
    sexual abuse by surreptitiously adding to his victim’s drink a
    drug that affects one’s judgment, thereby rendering her “men-
    tally incapacitated.” She would then be legally incapable of
    consent even if she participated fully in the sex act. Similarly,
    the victim could be “mentally defective,” yet fully physically
    cooperative. Under both those circumstances, a perpetrator
    would not necessarily have to use, attempt to use, or threaten
    to use any force above and beyond the force inherent in the
    act of penetration, see infra pp. 6885, to commit second-
    degree sexual abuse. In other words, under such circum-
    stances, a perpetrator would not have categorically committed
    a “crime of violence,” as the term is defined for purposes of
    § 2L1.2(b)(1)(A)(ii).
    [3] To be sure, a victim of second-degree sexual abuse
    could, in reality, have been subjected to force during the com-
    mission of the crime. In defining the term “without [her] con-
    sent,” the Oregon state legislature included not only victims
    “considered to be incapable of consenting as a matter of law,”
    but also victims who were “forcibly compelled to submit” and
    victims who did “not acquiesce in the actor’s conduct.”
    
    Stamper, 106 P.3d at 176
    (citing to the Commentary to Crimi-
    nal Law Revision Commission Proposed Oregon Criminal
    Code, Final Draft and Report §§ 105, 106 (July 1971)). But
    the possibility that extrinsic force was used in some fashion
    6884            UNITED STATES v. BELTRAN-MUNGUIA
    in the commission of the crime does not make it an essential
    “element” of second-degree sexual abuse. Put another way,
    even if a defendant did use force to commit his offense, the
    prosecution bore no burden to prove that fact, as the govern-
    ment could establish lack of consent in some other fashion.
    Absent such a burden, this portion of § 2L1.2(b)(1)(A)(ii)’s
    “crime of violence” definition does not categorically apply.
    B
    [4] The government argues otherwise, and in so doing,
    claims support in this circuit’s case law. We do not agree that
    our     precedents      support      the    proposition      that
    § 2L1.2(b)(1)(A)(ii) applies where it is possible that force will
    be used to accomplish the sex crime but the prosecution need
    not prove that it was.
    United States v. Yanez-Saucedo, 
    295 F.3d 991
    (9th Cir.
    2002), for example, involved a markedly different question
    than the one presented here. There, the court was charged
    with determining whether third-degree rape, as defined under
    Washington law, constituted an “aggravated felony” under
    § 2L1.2. 
    Id. at 992.
    Like the Oregon statute at issue here, the
    Washington statute in Yanez-Saucedo criminalizes noncon-
    sensual sex.5 
    Id. at 992,
    995. Unlike the “crime of violence”
    definition used for purposes of § 2L1.2(b)(1)(A)(ii), however,
    an aggravated felony, under the same guideline, is defined as
    including “rape,” in general. 
    Id. at 993-94.
    In holding that
    third-degree rape constituted an aggravated felony, Yanez-
    Saucedo concluded only that that particular crime “fit[ ]
    within a generic, contemporary definition of rape, which can,
    5
    Under Washington Revised Code section 9A.44.060(1), a person is
    guilty of third-degree rape if he engaged in sexual intercourse: “(a)
    [w]here the victim did not consent . . . and such lack of consent was
    clearly expressed by the victim’s words or conduct, or (b) [w]here there
    is threat of substantial unlawful harm to property rights of the victim.”
    WASH. REV. CODE § 9A.44.060(1).
    UNITED STATES v. BELTRAN-MUNGUIA                   6885
    but does not necessarily, include an element of physical force
    beyond that required for penetration.” 
    Id. at 996
    (emphasis
    added). In other words, far from indicating that nonconsensual
    sex necessarily involves the use or threatened use of force as
    an element of the crime, Yanez-Saucedo held only that “rape”
    — which is an “aggravated felony,” but not a per se “crime
    of violence” — need not include any such element.
    [5] As the careful wording of Yanez-Saucedo indicates, this
    circuit has never held that a sex crime can be considered to
    require the “use of force,” as an element of the crime, simply
    because it involves the act of penetration. While we have
    never expressly ruled out that possibility, the majority of other
    circuits have. See United States v. Sarmiento-Funes, 
    374 F.3d 336
    , 340 (5th Cir. 2004) (rejecting that “the act of penetration
    itself is enough to supply the force required under § 2L1.2”);
    United States v. Meader, 
    118 F.3d 876
    , 881-82 (1st Cir. 1997)
    (concluding that a statutory rape offense did not involve the
    “use of force,” within the meaning of U.S.S.G. § 4B1.2, even
    though penetration was involved in the crime); United States
    v. Shannon, 
    110 F.3d 382
    , 384-85 (7th Cir. 1997) (en banc)
    (same); but see United States v. Ivory, 
    475 F.3d 1232
    , 1236
    (11th Cir. 2007) (concluding that a state offense was a cate-
    gorical match for § 4B1.2(a)(1) because the “nonconsensual
    act of sexual penetration by its nature involves at least some
    level of physical force and pressure directed against another
    person’s body”). While the Eleventh Circuit’s approach may
    have common sense appeal, it does not satisfy the statutory
    requirement that an “element” of the crime involve “the use,
    attempted use, or threatened use of physical force against the
    person of another.” See 
    Hasan, 983 F.2d at 151
    (explaining
    that an “element” must be a “constituent part of the offense”
    (internal quotations omitted) (emphasis added)).6
    6
    In addition, the Eleventh Circuit case law that underlies Ivory has
    evolved differently than similar case law in our circuit. Compare 
    Ivory, 475 F.3d at 1235
    (explaining that, under Eleventh Circuit precedent, the
    crime of “simple battery” has “as an element, the use or attempted use of
    6886             UNITED STATES v. BELTRAN-MUNGUIA
    Like in Yanez-Saucedo, in Castro-Baez v. Reno, 
    217 F.3d 1057
    (9th Cir. 2000), it was also unnecessary to find force as
    a requisite element of the prior conviction. There, we were
    asked to decide whether a defendant’s prior rape conviction
    under California Penal Code section 261(a)(3) qualified as an
    “aggravated felony” within the meaning of § 101(a)(43)(A) of
    the Immigration and Nationality Act, 8 U.S.C.
    § 1101(a)(43)(A). 
    Id. at 1058.
    California defines “rape” for
    purposes of section 261(a)(3) as including “an act of sexual
    intercourse” accomplished “[w]here a person is prevented
    from resisting by any intoxicating or anesthetic substance, or
    any controlled substance, and this condition was known, or
    reasonably should have been known by the accused.” 
    Id. at 1059
    (alteration in original) (quoting CAL. PENAL CODE
    § 261(a)(3)) (internal quotation marks omitted). We explained
    in Castro-Baez that “[i]n ordinary usage, rape is understood
    to include the act of engaging in non-consensual sexual inter-
    course with a person whose ability to resist has been substan-
    tially impaired by drugs or other intoxicants.” Id.; see also 
    id. (citing the
    Black’s Law Dictionary definition of rape as an
    “act of sexual intercourse committed by a man with a woman
    not his wife and without her consent, committed when the
    woman’s resistance is overcome by force or fear, or under
    other prohibitive conditions” (emphases added)). A prior con-
    viction for rape under California Penal Code section 261(a)(3)
    physical force” because it involves “physical contact of an insulting or
    provoking nature”), with Ortega-Mendez v. Gonzales, 
    450 F.3d 1010
    ,
    1017-18 (9th Cir. 2006) (explaining that “[w]e have held that conduct
    involving mere offensive touching does not rise to the level of a ‘crime of
    violence,’ ” and that, as a result, a prior conviction for battery cannot be
    considered a crime of violence, within the meaning of 18 U.S.C. § 16),
    and 
    id. at 1016-18
    (citing a series of Ninth Circuit cases for the proposi-
    tion that battery, as criminalized under various state statutes, cannot be a
    categorical “crime of violence”), and 
    id. at 1016
    (explaining that “we have
    ‘squarely held that the force necessary to be a crime of violence [under 18
    U.S.C. § 16(a)] must actually be violent in nature’ ” (citing Singh v. Gon-
    zales, 
    386 F.3d 1228
    , 1233 (9th Cir. 2004) (internal quotation marks omit-
    ted))).
    UNITED STATES v. BELTRAN-MUNGUIA             6887
    therefore qualified as “rape” and thus as an “aggravated felo-
    ny” under the immigration statute. 
    Id. Like Yanez-Saucedo,
    then, Castro-Baez held only that a sexual offense that covers
    nonconsensual sexual intercourse can be “rape” for purposes
    of federal provisions using that term.
    United States v. Cortez-Arias, 
    403 F.3d 1111
    (9th Cir.
    2005), is also inapplicable here, albeit for a different reason.
    Cortez-Arias held that the “threatened use of physical force
    against the person of another” portion of U.S.S.G.
    § 2L1.2(b)(1)(A)(ii)’s “crime of violence” definition inher-
    ently encompasses “acts that communicate to another person
    an intent to use physical force against that person and acts
    suggesting that physical force against that person may be
    impending.” 
    Id. at 1116.
    The Oregon second-degree sexual
    abuse statute does not establish as a required element such
    communicative or suggestive acts. See also United States v.
    Anderson, 
    989 F.2d 310
    , 311 (9th Cir. 1993) (holding that
    where a “ ‘violent felony’ includes any crime that ‘has as an
    element the use, attempted use, or threatened use of physical
    force against the person of another,’ ” “[a] threat of force
    against a person is an element of a crime only if the crime
    must involve a threat of force” (emphasis omitted) (quoting
    18 U.S.C. § 924(e)(2)(B)(i))).
    Finally, United States v. Riley, 
    183 F.3d 1155
    (9th Cir.
    1999), does not support the government’s submission either.
    Riley concerned a prior conviction under Louisiana’s “simple
    rape” statute — a statute that, much like ORS section
    163.425, criminalizes nonconsensual, but not necessarily
    forceful, sexual intercourse. See 
    id. at 1157
    n.2 (quoting LA.
    REV. STAT. ANN. § 14:43 (1998)). Riley, however, involved a
    separate Sentencing Guideline from the one at issue here —
    namely, § 4B1.2, which defines “crime of violence” in materi-
    ally different terms than § 2L1.2.
    Under § 4B1.2(a), a “crime of violence” is a federal or state
    felony that:
    6888          UNITED STATES v. BELTRAN-MUNGUIA
    (1) has as an element the use, attempted use, or
    threatened use of physical force against the person of
    another, or
    (2) is burglary of a dwelling, arson, or extortion,
    involves use of explosives, or otherwise involves
    conduct that presents a serious potential risk of
    physical injury to another.
    U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (emphases
    added). Although the first part of this definition mirrors some
    of the language used in the commentary to
    § 2L1.2(b)(1)(A)(ii), the second part of the definition — in
    particular, the words “otherwise involves conduct that pre-
    sents a serious potential risk of physical injury to another” —
    are unique to § 4B1.2. It was those words that Riley relied
    upon when it held that “simple rape” constituted a crime of
    violence, emphasizing the potential risk of violence inherent
    in all sexual crimes. 
    See 183 F.3d at 1157-58
    .
    Because § 4B1.2 contains the “serious potential risk of
    physical injury” catchall provision not applicable to
    § 2L1.2(b)(1)(A), Riley does not control our outcome. Cortez-
    Arias dictates this conclusion, as it declined to transfer to the
    § 2L1.2(b)(1)(A) context a holding premised on the “serious
    risk” language in § 4B1.2(a):
    Cortez-Arias received a sentencing enhancement
    under USSG § 2L1.2. The commentary to that sec-
    tion defines a “crime of violence” somewhat differ-
    ently than does § 4B1.2(a) . . . . Neither [§ 2L1.2]
    nor its commentary in explicit words refer to crimes
    that “involve conduct that presents a serious risk of
    physical injury to another.”
    Accordingly, we conclude that . . . [a case] holding
    that California Penal Code section 246 is a “crime of
    violence” [for purposes of § 4B1.2] because it
    UNITED STATES v. BELTRAN-MUNGUIA                6889
    involves conduct that presents a serious risk of phys-
    ical injury to another does not necessarily resolve the
    question of whether the same offense is a “crime of
    violence” for purposes of USSG § 
    2L1.2. 403 F.3d at 1114
    (citing United States v. Weinert, 
    1 F.3d 889
    (9th Cir. 1993) (per curiam)); see also United States v. Pax-
    ton, 
    422 F.3d 1203
    , 1206 (10th Cir. 2005) (explaining that, as
    a result of the difference between §§ 4B1.2 and 2L1.2, an
    offense that is not a crime of violence under § 2L1.2 because
    it “lack[s] the use of physical force as an element” can none-
    theless be a crime of violence under § 4B1.2 “because of an
    inherent risk of physical injury”), cert. denied, 
    126 S. Ct. 1403
    (2006); United States v. Jaimes-Jaimes, 
    406 F.3d 845
    ,
    849-50 (7th Cir. 2005) (explaining that “ ‘crime of violence’
    is defined more narrowly in § 2L1.2 than in other contexts
    because the definition does not encompass acts . . . that
    merely pose a risk of harm to another person”).
    [6] There are cases in our circuit containing language
    which, taken out of context, can be read to suggest that the
    phrase “crime of violence” must be interpreted to carry the
    same meaning throughout the guidelines, even when the
    defining language in particular guidelines differs. See, e.g.,
    United States v. Pereira-Salmeron, 
    337 F.3d 1148
    , 1153 (9th
    Cir. 2003) (writing that “there is no indication that the term
    [‘crime of violence’] is intended to mean something different
    for [one] provision than it does elsewhere”); United States v.
    Granbois, 
    376 F.3d 993
    , 996 (9th Cir. 2004) (same). Pereira-
    Salmeron and Granbois, however, do not equate § 4B1.2’s
    “serious potential risk of physical injury” prong with
    § 2L1.2’s “force as an element of the crime” prong, but
    instead equate only the per se crimes of violence aspects of
    the two definitions. See 
    Pereira-Salmeron, 337 F.3d at 1154
    (noting, after discussing in dicta the results reached under the
    catchall provision of another guideline, that “[t]he specific
    issue before us is whether Pereira-Salmeron’s conviction . . .
    falls within the category of ‘sexual abuse of a minor,’ ” a per
    6890          UNITED STATES v. BELTRAN-MUNGUIA
    se category); 
    Granbois, 376 F.3d at 995
    (noting that Pereira-
    Salmeron “explained that crimes involving the sexual abuse
    of a minor are per se ‘crimes of violence,’ ” and following
    that holding while declining to consider the application of the
    “serious risk of physical injury” catchall provision in
    § 4B1.2); United States v. Asberry, 
    394 F.3d 712
    , 716 (9th
    Cir. 2005) (stating that “[i]n Granbois, we held in the context
    of interpreting ‘sexual abuse of a minor’ that ‘there is no indi-
    cation that [“crime of violence”] is intended to mean some-
    thing different’ in section 4B1.2 than it does in section 2L1.2”
    (second alteration in original) (emphasis added) (quoting
    
    Granbois, 376 F.3d at 996
    )). Because these cases did not con-
    cern the application of § 4B1.2’s catchall “serious risk” lan-
    guage to § 2L1.2, the controlling precedent for purposes of
    this case is Cortez-Arias, which does concern precisely that
    issue.
    We note that the holding of Cortez-Arias is supported by
    the fact that § 4B1.2(a) defines “crime of violence” under that
    section as encompassing, in addition to the list of per se
    crimes of violence, both offenses that “ha[ve] as an element
    the use, attempted use, or threatened use of physical force
    against the person of another,” and offenses that “otherwise
    involve[ ] conduct that presents a serious potential risk of
    physical injury to another,” while the definition applicable to
    § 2L1.2(b)(1)(A)(ii) contains only the former phrase. Com-
    pare U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a), with
    
    id. § 2L1.2
    cmt. n.1(B)(iii). To equate the two sections even
    though one has a phrase of some length entirely absent from
    the other would violate established principles of construction
    proscribing interpretations that assume mere surplusage. See,
    e.g., United States v. Stevens, 
    462 F.3d 1169
    , 1171 (9th Cir.
    2006); United States v. Wenner, 
    351 F.3d 969
    , 975 (9th Cir.
    2003). Instead, it is evident that the catchall language of
    § 4B1.2 is broader than the catchall provision language appli-
    cable to § 2L1.2.
    Nor does Riley’s reliance on the words “serious potential
    risk of physical injury to another” mean that second-degree
    UNITED STATES v. BELTRAN-MUNGUIA              6891
    sexual abuse in Oregon necessarily involves the “threatened
    use of physical force.” In explicating what it meant by “risk,”
    Riley reasoned that the act of rape, whether overtly forceful
    or “merely” nonconsensual, always “creates an atmosphere
    that fosters the potential for physical 
    confrontation.” 183 F.3d at 1159
    (emphasis added) (explaining how, in cases involving
    simple rape, “if the victim realize[s] at any point that the per-
    petrator [is] not her husband or if the victim [comes] out of
    her stupor, the situation could easily escalate into a violent
    confrontation”). But the “threatened use” of physical force is
    not the same as the “potential use” of physical force. “Threat-
    ened use” for purposes of § 2L1.2(b)(1)(A)(ii) must be an ele-
    ment of the crime, and denotes a specific communication,
    explicit or implicit, by the defendant — a threat — not a risk
    that may occur as a result of the action that constitutes the
    offense.
    ****
    [7] In short, because ORS section 163.425 of the Oregon
    Revised Statutes does not make “the use, attempted use, or
    threatened use of physical force” an element of the crime of
    second-degree sexual abuse, Beltran-Munguia’s prior convic-
    tion does not qualify as a “crime of violence” under this prong
    of our § 2L1.2(b)(1)(A)(ii) analysis.
    C
    [8] Beltran-Munguia’s prior conviction does not qualify as
    a “crime of violence” under § 2L1.2(b)(1)(A)(ii)’s “forcible
    sex offenses” alternative either. Not surprisingly, given its
    language, we have interpreted the phrase “forcible sex
    offenses” as requiring the use of force, an interpretation that
    precludes application to the Oregon crime here at issue.
    [9] United States v. Lopez-Montanez, 
    421 F.3d 926
    (9th
    Cir. 2005), concerned whether a conviction under California’s
    sexual battery statute, California Penal Code section 243.4(a),
    6892              UNITED STATES v. BELTRAN-MUNGUIA
    qualifies as a conviction for a “forcible sex offense” and
    therefore as a conviction for a “crime of violence” under
    § 2L1.2. We held that it does not, because “under the Califor-
    nia sexual battery statute, the touching may be ‘ephemeral,’
    or committed without the use of force.” 
    Id. at 929.7
    In so hold-
    ing, we relied on several other Ninth Circuit cases that require
    some degree of force to label a crime “violent.” See 
    id. (citing Ye
    v. INS, 
    214 F.3d 1128
    (9th Cir. 2000), for the proposition
    that “the force necessary to constitute a crime of violence [ ]
    must actually be violent in nature,” and Singh v. Ashcroft, 
    386 F.3d 1228
    (9th Cir. 2004), as declining to make a conviction
    under an Oregon harassment statute a categorical crime of
    violence “because it did not involve the requisite use of force”
    (alteration in original) (quoting 
    Ye, 214 F.3d at 1133
    ) (internal
    quotation marks omitted)). While it recognized that other
    cases in our circuit, like Pereira-Salmeron and Granbois, had
    held that “sexual abuse of a minor” is a “crime of violence”
    under § 2L1.2, Lopez-Montanez distinguished those cases by
    concluding that “[n]either our case law nor the statute . . . sup-
    ports the proposition that the commission of a ‘forcible sex
    offense[ ]’ against an individual who is not a minor consti-
    tutes a crime of violence if the statute of conviction does not
    require the use of force.” 
    Id. at 930
    (alteration in original). It
    thus “reject[ed] the government’s invitation to read out ‘forc-
    ible’ from ‘forcible sex offenses.’ ” Id.8
    7
    Under the California statute:
    Any person who touches an intimate part of another person while
    that person is unlawfully restrained by the accused or an accom-
    plice, and if the touching is against the will of the person touched
    and is for the purpose of sexual arousal, sexual gratification, or
    sexual abuse, is guilty of sexual battery.
    CAL. PENAL CODE § 243.4(a) (emphasis added).
    8
    The Third Circuit has concluded otherwise, holding that a “forcible sex
    offense” does not require some “application of direct physical force.” See
    United States v. Remoi, 
    404 F.3d 789
    , 794 (3d Cir.) (per curiam), cert.
    denied 
    126 S. Ct. 467
    (2005). We are, however, bound by Lopez-
    Montanez. See Miller v. Gammie, 
    335 F.3d 889
    , 899 (9th Cir. 2003) (en
    banc) (holding that “a three-judge panel may not overrule a prior decision
    of the court” unless the “prior decision . . . [has] been undercut by higher
    authority to such an extent that it has been effectively overruled”).
    UNITED STATES v. BELTRAN-MUNGUIA                      6893
    D
    [10] Although we have already determined that sexual
    abuse in the second degree does not categorically require the
    use of force, under the modified categorical approach we sep-
    arately consider whether any judicially noticeable facts show
    that Beltran-Munguia was in fact convicted of committing
    second-degree sexual abuse through the use of force. See
    United States v. Rivera-Sanchez, 
    247 F.3d 905
    , 908 (9th Cir.
    2001) (en banc); 
    Lopez-Montanez, 421 F.3d at 931-32
    .9 Doing
    so, we conclude that none of the additional documents exam-
    ined by the sentencing judge — the charging document, the
    judgment, the plea agreement, a court order for HIV testing,
    and the notice of sex offender registration — establish that
    Beltran-Munguia was convicted of a crime involving the use
    of force.
    [11] As a result, Beltran-Munguia’s conviction of second-
    degree sexual abuse under Oregon law does not amount to a
    “crime of violence” under the modified categorical approach.
    III
    Beltran-Munguia next argues that the district judge violated
    his Fifth and Sixth Amendment rights by finding that his
    deportation occurred “subsequent to” a prior conviction. We
    reject this argument.10
    9
    We do not decide whether the modified categorical approach can be
    used to decide if a prior conviction constitutes a “crime of violence” under
    the provision that defines § 2L1.2(b)(1)(A)(ii) to include “any offense . . .
    that has as an element the use, attempted use, or threatened use of physical
    force against the person of another.” We have previously assumed both
    that this approach does apply and that it does not. Compare United States
    v. Martinez-Martinez, 
    468 F.3d 604
    , 613-14 (9th Cir. 2006), with United
    States v. Piccolo, 
    441 F.3d 1084
    , 1086-86, 1088 n.7 (9th Cir. 2006). Given
    that none of the available documents here make any mention of force, we
    need not resolve this question today.
    10
    Although we vacate Beltran-Munguia’s current sentence, we reach
    this claim because it is likely to be raised again if we do not. On remand,
    6894             UNITED STATES v. BELTRAN-MUNGUIA
    [12] Under recent Supreme Court and Ninth Circuit juris-
    prudence, Almendarez-Torres v. United States, 
    523 U.S. 224
    (1998), holding that the fact of a prior conviction need not be
    proven to a jury beyond a reasonable doubt, remains good
    law. So a judge may find the fact of a prior conviction —
    including facts about that conviction apparent from the face
    of the cognizable documents — to enhance a sentence. See
    
    Booker, 543 U.S. at 244
    ; Apprendi v. New Jersey, 
    530 U.S. 466
    , 489-90 (2000); United States v. Quintana-Quintana, 
    383 F.3d 1052
    , 1053 (9th Cir. 2004) (order); see also United
    States v. Beng-Salazar, 
    452 F.3d 1088
    , 1091 (9th Cir. 2006)
    (holding that nothing in two post-Apprendi Supreme Court
    cases, Shepard v. United States, 
    544 U.S. 13
    (2005), and
    Dretke v. Haley, 
    541 U.S. 386
    (2004), overrules Almendarez-
    Torres).
    [13] We have held, in contrast, that district courts do com-
    mit Apprendi error by finding on its own both the fact of prior
    removal and the fact of prior conviction. See United States v.
    Zepeda-Martinez, 
    470 F.3d 909
    , 912-13 (9th Cir. 2006);
    United States v. Covian-Sandoval, 
    462 F.3d 1090
    , 1097-98
    (9th Cir. 2006), cert. denied ___ S. Ct. ___ (2007). But in this
    case, Beltran-Munguia admitted when pleading guilty that he
    was removed from the United States “on or about April 8,
    2005.” And the date of his prior conviction under ORS sec-
    tion 163.425 — April 25, 2000 — was readily apparent from
    several of the judicially noticeable documents available to the
    district court. The district court could, therefore, readily con-
    clude that Beltran-Munguia was removed “subsequent to” his
    prior conviction, without making any factual findings not
    apparent from the face of the conviction documents.
    Almendarez-Torres is therefore binding on us in this case.
    the district court will have to recalculate the appropriate guidelines level.
    See 
    Cantrell, 433 F.3d at 1280
    . In doing so, the question of reliance on
    the sexual abuse in the second degree conviction will arise again, because
    § 2L1.2(b)(1)(C) allows for an eight-level increase where a prior convic-
    tion constitutes an “aggravated felony.” U.S. SENTENCING GUIDELINES
    MANUAL § 2L1.2(b)(1)(C).
    UNITED STATES v. BELTRAN-MUNGUIA           6895
    IV
    [14] In conclusion, the sentencing judge erred when he
    enhanced Beltran-Munguia’s sentence sixteen levels, under
    § 2L1.2(b)(1)(A)’s “crime of violence” provision. As a result,
    we vacate Beltran-Munguia’s sentence and remand for resen-
    tencing.
    VACATED AND REMANDED.
    RYMER, Circuit Judge, with whom Circuit Judge Tallman
    joins, concurring:
    If we were writing on a clean slate, I would hold that non-
    consensual penetration falls within the plain meaning of
    “physical force.” See United States v. Ivory, 
    475 F.3d 1232
    (11th Cir. 2007).
    TALLMAN, Circuit Judge, with whom Circuit Judge Rymer
    joins, concurring:
    I am bound by precedent to concur. I write separately, how-
    ever, because of the injustice resulting from our precedents.
    In our zeal to be good legal technicians, we are abandoning
    the role of common sense in fashioning appropriate punish-
    ment for repeat offenders like Beltran-Munguia. Our current
    case law yields a result that minimizes a crime effected by
    exploiting a victim’s helplessness. For purposes of a “crime
    of violence” enhancement, I have conceptual difficulties char-
    acterizing the “force” of physical penetration imposed on an
    unwilling victim as different in kind from the physical force
    imposed to overcome the victim’s unwillingness. From the
    victim’s perspective, both acts are “violent” and surely non-
    consensual. Nevertheless, I cannot say that the Oregon
    6896          UNITED STATES v. BELTRAN-MUNGUIA
    offense requires the prosecution to prove the use, attempted
    use, or threatened use of physical force to sustain a convic-
    tion. See United States v. Hasan, 
    983 F.2d 150
    , 151 (9th Cir.
    1992).
    Were I writing on a clean slate, I would hold that the Ore-
    gon conviction categorically qualifies as a “crime of violence”
    because it is a specifically enumerated offense—namely, a
    “forcible sex offense.” In my view, a sex offense committed
    against an unconscious victim is as much a “crime of vio-
    lence” as a sex offense involving physical force committed
    against a conscious victim. In both circumstances, the perpe-
    trator commits an act against the victim’s will. The law pre-
    sumes that were the victim competent and capable of giving
    consent, she would not, and that she would resist the assault
    as best she could.
    Neither the Sentencing Guidelines nor their commentary
    define “forcible sex offenses.” Were I not confined by United
    States v. Lopez-Montanez, 
    421 F.3d 926
    (9th Cir. 2005), I
    would interpret the undefined term—“forcible sex offenses”
    —to encompass nonconsensual sex crimes. In “ordinary, con-
    temporary, and common parlance,” United States v. Trinidad-
    Aquino, 
    259 F.3d 1140
    , 1145 (9th Cir. 2001), “forcible”
    denotes an act against a person’s will. “Forcible” should
    encompass all acts undertaken against the victim’s will,
    regardless of whether the perpetrator inflicts the assault by
    physical force, threatens physical force, or cripples the vic-
    tim’s ability to consent.
    The Guidelines’ language and the Commission’s intent
    compel this interpretation. “Forcible sex offenses,” like other
    listed offenses—e.g., statutory rape, sexual abuse of a minor,
    extortionate extension of credit, and burglary of a dwelling—
    automatically qualify as “crimes of violence,” regardless of
    whether force is an essential element. See United States v.
    Pereira-Salmeron, 
    337 F.3d 1148
    , 1152 (9th Cir. 2003). The
    Commission amended the Guidelines’ commentary in
    UNITED STATES v. BELTRAN-MUNGUIA             6897
    November 2003 to clarify that enumerated offenses need not
    involve the actual use, attempted use, or threatened use of
    physical force. See United States v. Asberry, 
    394 F.3d 712
    ,
    716 (9th Cir. 2005) (tracking evolving language of section
    2L1.2 (citing U.S. Sentencing Commission, Guidelines Man-
    ual app. C, amend. 658, Reason for Amend., 397-402 (2003)).
    The Sentencing Commission selected certain offenses that
    deserve treatment as crimes of violence per se, probably
    because the selected crimes inherently pose an implicit
    “threatened use of force.” 
    Pereira-Salmeron, 337 F.3d at 1152
    . Furthermore, the Guidelines’ language “indicates the
    Commission’s intent to cover crimes that involve an implicit
    use of force or a substantial potential for violence.” 
    Id. at 1153.
    Nonconsensual sex offenses fall within this category of
    crimes. See United States v. Yanez-Saucedo, 
    295 F.3d 991
    ,
    995-96 (9th Cir. 2002) (rejecting the notion that rape absent
    a forcible compulsion element lacks any degree of force);
    United States v. Riley, 
    183 F.3d 1155
    , 1159 (9th Cir. 1999)
    (likening simple rape—intercourse without the victim’s law-
    ful consent—to crimes previously deemed inherently violent);
    United States v. Ivory, 
    475 F.3d 1232
    , 1236 (11th Cir. 2007)
    (recognizing that nonconsensual penetration “involves at least
    some level of physical force and pressure directed against
    another person’s body”); State v. Bashaw, 
    672 P.2d 48
    , 49
    (Or. 1983) (considering rape a crime of “degradation as well
    as violence”).
    In addition to the Guidelines’ language and the Commis-
    sion’s intent, a fundamental rule of statutory construction sup-
    ports interpreting “forcible sex offenses” to encompass all sex
    acts taken against a victim’s will. Specifically, courts should
    not interpret one provision in a way that renders another part
    of the same statute superfluous. United States v. Fish, 
    368 F.3d 1200
    , 1205 (9th Cir. 2004). Along these lines, “ ‘no defi-
    nition should be completely subsumed within another.’ ”
    United States v. Stevens, 
    462 F.3d 1169
    , 1171 (9th Cir. 2006)
    (quoting United States v. Lopez-Solis, 
    447 F.3d 1201
    , 1205
    6898             UNITED STATES v. BELTRAN-MUNGUIA
    n.10 (9th Cir. 2006)). By defining “forcible sex offenses” to
    encompass only a narrower group of offenses, i.e., those
    offenses with a “forcible compulsion” element, the “has as an
    element” definition in section 2L1.2(b)(1)(A)(ii) subsumes
    “forcible sex offenses,” and renders the phrase meaningless.
    For this reason, we would be better advised to interpret the
    term as did the Third Circuit in United States v. Remoi, 
    404 F.3d 789
    (3d Cir. 2005).
    In Remoi, the court concluded that a defendant’s prior New
    Jersey conviction for penetration against a physically helpless,
    mentally defective, or mentally incapacitated victim consti-
    tuted a “forcible sex offense,” and thus a “crime of violence.”
    
    Id. at 794.
    The court explained that the Commission “did not
    mean to limit ‘forcible sex offenses’ to those involving the
    application of direct physical force, as opposed to some other
    type of compulsion,” where doing so renders the provision
    superfluous. 
    Id. at 794-95.
    The court further noted that the
    Commission considers sex crimes against minors per se “forc-
    ible sex offenses” because a minor lacks the capacity to con-
    sent to sexual relations, which makes the relations “forcible.”
    
    Id. at 795.1
    Because the logic applies equally to other types of
    1
    In 2001, the Commission amended section 2L1.2 by defining “crime
    of violence” with the parenthetical “(including sexual abuse of a child)”
    after “forcible sex offenses.” 
    Asberry, 394 F.3d at 716
    . In 2003, the Com-
    mission further amended the definition of “crime of violence” to list “sex-
    ual abuse of a minor” separately. 
    Id. The 2002
    version applied in Remoi.
    Though the 2004 edition of the Guidelines applies in this case, the reason-
    ing in Remoi is persuasive. That the Commission once cited “sexual abuse
    of a minor” as an example of a “forcible sex offense” supports extending
    the term to all sex acts taken against a victim’s will, not just those involv-
    ing forcible compulsion. The Commission revised the definition in 2003
    to list “sexual abuse of a minor” only because the previous definition led
    to confusion about whether the specified offenses, particularly sexual
    abuse of a minor, had to include as an element “the use, attempted use, or
    threatened use of physical force against the person of another.” 
    Asberry, 394 F.3d at 716
    (citing U.S. Sentencing Guidelines Manual app. C,
    amend. 658, Reason for Amendment, 397-402 (2003)). Had the Commis-
    sion intended that “forcible sex offenses” involve physical force or a threat
    of force, it could have said so at the same time.
    UNITED STATES v. BELTRAN-MUNGUIA            6899
    vulnerable victims, the Third Circuit had no trouble conclud-
    ing that penetration against a “physically helpless, mentally
    defective or mentally incapacitated” victim constituted a
    “forcible sex offense.” 
    Remoi, 404 F.3d at 795
    . Finally, the
    court recognized the Sentencing Commission’s November
    2003 Amendment as clarifying that an enumerated offense
    always qualifies as a “crime of violence,” regardless of
    whether the perpetrator employed physical force. Id.; see also
    United States v. Luciano-Rodriguez, 
    442 F.3d 320
    , 329 (5th
    Cir. 2006) (Owen, J., dissenting) (concluding that sexual
    intercourse without legally effective consent falls within the
    scope of “forcible sex offenses” based on the history behind
    the definition).
    We may find under this post-Booker/Fanfan advisory
    Guidelines regime that district judges can nonetheless dis-
    pense justice in fashioning an appropriate sentence for recidi-
    vist offenders like Beltran-Munguia. If so, then the mental
    gymnastics of the panel’s opinion here, though an interesting
    academic discussion, does no real harm to sentencing discre-
    tion. Nevertheless, there is confusion in our case law, and I
    urge our court to revisit any precedent that precludes us from
    classifying nonconsensual sex as a “crime of violence” under
    section 2L1.2(b)(1)(A)(ii). We should join the Third Circuit
    and define “forcible sex offenses” to include any sexual act
    committed against the victim’s will or consent. See 
    Remoi, 404 F.3d at 796
    . Because Judge Berzon correctly applies
    existing circuit precedent here, I reluctantly concur.