United States v. Eduardo Rangel-Castaneda , 709 F.3d 373 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 12-4408
EDUARDO RANGEL-CASTANEDA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Martin K. Reidinger, District Judge.
(1:10-cr-00045-MR-1)
Argued: February 1, 2013
Decided: March 7, 2013
Before WILKINSON and FLOYD, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Judge Floyd and Judge Good-
win joined.
2 UNITED STATES v. RANGEL-CASTANEDA
COUNSEL
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. William Michael Miller, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Car-
olina, for Appellee. ON BRIEF: Henderson Hill, Executive
Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
The district court held in this case that defendant Eduardo
Rangel-Castaneda’s Tennessee statutory rape conviction qual-
ified as a generic "statutory rape" offense and thus constituted
a "crime of violence" under the sentencing enhancement
established at U.S.S.G. § 2L1.2(b)(1)(A)(ii). This was incor-
rect.
Employing the "categorical approach" for assessing the
applicability of enhancements, as articulated in Taylor v.
United States, 495 U.S. 575 (1990), we find that the "generic,
contemporary meaning" of statutory rape sets the general age
of consent at sixteen years old. In so holding, we note the
importance of achieving some degree of uniformity in apply-
ing the United States Sentencing Guidelines across the nation,
particularly with respect to an element as crucial as the age of
consent is for the crime of statutory rape. Because Tennes-
see’s statutory rape provision sets the age of consent at eigh-
teen and is therefore significantly broader than the generic
offense, we hold that a conviction thereunder does not cate-
gorically qualify for the crime-of-violence enhancement.
UNITED STATES v. RANGEL-CASTANEDA 3
I.
The defendant was born in Mexico in 1979. At the age of
fifteen, Rangel illegally entered the United States, settling in
Tennessee. In 2007, he was deported to Mexico but returned
to the United States shortly thereafter. In April 2009, Rangel
was convicted in Tennessee state court of "aggravated statu-
tory rape," in violation of Tenn. Code Ann. § 39-13-506(c),
for having sexual intercourse with his then-girlfriend, who
was sixteen years old and twelve years his junior at the time
of the offense. The victim acknowledged that she willingly
participated in the sexual relationship and stated that Rangel
had believed that she was eighteen. Rangel received a sus-
pended two-year prison sentence. He was subsequently con-
victed of illegal reentry in federal district court, and he was
again deported to Mexico in September 2009.
Once more, Rangel returned to the United States unlaw-
fully, this time settling in North Carolina. In 2010, he was
convicted in state court of driving while impaired and failing
to register as a sex offender. In July 2010, he was indicted by
a federal grand jury in the Western District of North Carolina
on one count of illegal reentry by an alien who was removed
after an aggravated felony conviction, under 8 U.S.C.
§ 1326(a) and (b)(2). He pleaded guilty without a plea agree-
ment in June 2011.
At a sentencing hearing in February 2012, the district court
held that Rangel’s Tennessee statutory rape conviction consti-
tuted a "crime of violence" pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Based on Rangel’s criminal history, the
district court therefore applied a sixteen-level sentencing
enhancement and found the Guidelines range to be fifty-seven
to seventy-one months’ imprisonment. The court continued
the proceeding for additional argument in light of this
enhancement. At the second sentencing hearing, which took
place that May, the court granted Rangel a four-level down-
ward departure on the ground that the statutory rape convic-
4 UNITED STATES v. RANGEL-CASTANEDA
tion was not as serious as the enhancement would imply, thus
yielding a final Guidelines range of thirty-seven to forty-six
months’ imprisonment. The court sentenced Rangel to forty-
two months.
II.
A.
The primary issue in this appeal involves the applicability
of a sentencing enhancement for a defendant convicted of ille-
gally entering or staying in the country "[i]f the defendant
previously was deported, or unlawfully remained in the
United States, after . . . a conviction for a felony that is . . .
a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). This
"crime-of-violence" enhancement can be either twelve or six-
teen levels depending on the defendant’s criminal history. Id.
The commentary provides that "crime of violence" means
any of the following offenses under federal, state, or
local law: Murder, manslaughter, kidnapping, aggra-
vated assault, forcible sex offenses (including where
consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is invol-
untary, incompetent, or coerced), statutory rape, sex-
ual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwell-
ing, or any other 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.
Id. § 2L1.2 cmt. n.1(B)(iii). As noted, the main question here
is whether Rangel’s Tennessee conviction qualifies as "statu-
tory rape," and hence a "crime of violence," pursuant to this
provision.
In Taylor v. United States, the Supreme Court held that
where Congress has not indicated how a prior offense enu-
UNITED STATES v. RANGEL-CASTANEDA 5
merated in a sentencing enhancement statute is to be inter-
preted, it should be understood to refer to "the generic,
contemporary meaning" of the crime. 495 U.S. 575, 598
(1990) (interpreting "burglary" as used in the Armed Career
Criminal Act, 18 U.S.C. § 924(e)). This meaning, the Court
made clear, will generally correspond to the "sense in which
the term is now used in the criminal codes of most States." Id.In construing how an enhancement applies, a sentencing court
must compare the elements of the generic offense to "the stat-
utory definition[ ] of the prior offense[ ]." Id. at 599-600. If
"the defendant was convicted of [the prior offense] in a State
where the generic definition has been adopted, with minor
variations in terminology, then the [sentencing] court need
find only that the state statute corresponds in substance to the
generic meaning" of the crime, rendering the enhancement
applicable. Id. at 599. By contrast, if a defendant "has been
convicted under a nongeneric[ ] statute," the conviction does
not qualify for the enhancement. Id. at 599-600. Specifically,
an offense is "categorically overbroad" if "it is evident from
the statutory definition of the state crime that some violations
of the statute are ‘crimes of violence’ and others are not."
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.
2008).
This approach, Taylor explained, is "formal" and "categori-
cal" because it allows courts to "look[ ] only to the statutory
definitions of the prior offenses, and not to the particular facts
underlying those convictions." 495 U.S. at 600. Resort to such
facts is appropriate, however, in "a narrow range of cases"
where "all the elements" of the generic offense were required
to be found, id. at 602—that is, where "the statute is divisible,
with some categories constituting a crime of violence and
some not constituting a crime of violence," United States v.
Gomez, 690 F.3d 194, 200 (4th Cir. 2012). This latter mode
of analysis, of course, has become known as the "modified
categorical approach."
6 UNITED STATES v. RANGEL-CASTANEDA
B.
Rangel was convicted of "aggravated statutory rape" pursu-
ant to Tenn. Code Ann. § 39-13-506(c), which provides that
[a]ggravated statutory rape is the unlawful sexual
penetration of a victim by the defendant, or of the
defendant by the victim when the victim is at least
thirteen (13) but less than eighteen (18) years of age
and the defendant is at least ten (10) years older than
the victim.
The parties agree that the categorical approach controls this
case. They disagree quite strenuously, however, about
whether Rangel’s conviction comports with the generic defi-
nition of "statutory rape" as that term is used in the crime-of-
violence enhancement. On this question, the district court held
that
under 2L1.2, it specifically enumerates statutory rape
as a crime that constitutes a crime of violence, and,
therefore, applying the ordinary, contemporary, com-
mon meaning of that term, the conviction of the
defendant falls within that term. Even though there
may be differences from jurisdiction to jurisdiction
as to the particular age of consent, the crime that is
committed by committing statutory rape is one that
can be discerned using the ordinary, contemporary,
and common meaning of that term, and therefore, the
Application Note 1(B)(iii) of 2L1.2 can be applied.
The government argues, first, that the generic definition of
statutory rape requires sexual intercourse with a person youn-
ger than eighteen. Because the Tennessee statute sets the age
of consent at eighteen, the government contends that the state
offense meets the generic definition and is consequently not
overbroad under Taylor. In the alternative, the government
argues that even if the default age of consent is sixteen (as the
UNITED STATES v. RANGEL-CASTANEDA 7
defendant contends), the generic offense also encompasses
statutes that increase the age of consent in conjunction with
an element that the perpetrator be some minimum age or a
certain number of years older than the victim. The govern-
ment asserts that because the Tennessee statute includes such
an age-difference element, it easily satisfies this formulation
—particularly the aggravated statutory rape provision under
which Rangel was convicted, which requires a gap of at least
ten years. For the reasons that follow, however, we cannot
accept these arguments.
III.
Our analysis focuses on the particular crime at issue in this
case—statutory rape. Tennessee’s statutory rape provision
sets the age of consent at eighteen, and the defendant argues
that the generic offense sets it at sixteen. Although we recog-
nize that a particular state offense can fall within the generic
formulation of a crime despite "minor variations in terminol-
ogy" between the two, Taylor v. United States, 495 U.S. 575,
599 (1990), the disparity between the predicate state crime
and the defendant’s contended generic offense here simply
cannot be considered insignificant.
Because the age of consent is central to the conception of
statutory rape in every jurisdiction across the country and
because the contrast between age sixteen and age eighteen is
highly consequential, the divergence engenders dramatically
different crimes. In other words, conduct that is perfectly
legal for some people could subject many others in neighbor-
ing states to years upon years in federal prison. This, of
course, is the sort of unjust and "odd result[ ]" that Taylor
intended to preclude by holding that enhancement predicates
"must have some uniform definition independent of the labels
employed by the various States’ criminal codes." Id. at 591-
92.
8 UNITED STATES v. RANGEL-CASTANEDA
We thus find it significant that, in defining what in com-
mon parlance constitutes statutory rape, a robust majority of
American jurisdictions—the federal government, thirty-two
states, and the District of Columbia—has set the general age
of consent precisely at sixteen years old.1 See 18 U.S.C.
§ 2243(a); Ala. Code §§ 13A-6-62, -70; Alaska Stat.
§ 11.41.438; Ark. Code Ann. § 5-14-127; Conn. Gen. Stat.
§ 53a-71; D.C. Code §§ 22-3001, -3009; Ga. Code Ann. § 16-
6-3; Haw. Rev. Stat. § 707-730; Ind. Code § 35-42-4-9; Iowa
Code § 709.4; Kan. Stat. Ann. §§ 21-5506, -5507; Ky. Rev.
Stat. Ann. §§ 510.020, .060; Me. Rev. Stat. tit. 17-A, § 254;
Md. Code Ann., Crim. Law §§ 3-307, -308; Mass. Gen. Laws
ch. 265, § 23; Mich. Comp. Laws § 750.520d; Minn. Stat.
§ 609.344; Miss. Code Ann. §§ 97-3-65, -95; Mont. Code
Ann. § 45-5-501; Neb. Rev. Stat. § 28-319; Nev. Rev. Stat.
§ 200.364; N.H. Rev. Stat. Ann. § 632-A:3; N.J. Stat. Ann.
§ 2C:14-2; N.M. Stat. Ann. § 30-9-11; N.C. Gen. Stat. § 14-
27.7A; Ohio Rev. Code Ann. § 2907.04; Okla. Stat. tit. 21,
§ 1111; 18 Pa. Cons. Stat. §§ 3122.1, 3125; R.I. Gen. Laws
§ 11-37-6; S.C. Code Ann. § 16-3-655; S.D. Codified Laws
§§ 22-22-1, -7; Vt. Stat. Ann. tit. 13, § 3252; Wash. Rev.
Code § 9A.44.079; W. Va. Code §§ 61-8B-2, -5. Only eleven
states set the general age of consent at eighteen.2 Bolstering
1
In discussing the general age of consent here and elsewhere, we do not
address state code provisions establishing a higher age of consent in spe-
cific factual circumstances, such as where defendants are in positions of
authority over their victims. See, e.g., N.J. Stat. Ann. § 2C:14-2(c)(3) ("An
actor is guilty of sexual assault if he commits an act of sexual penetration
with another person [and] [t]he victim is at least 16 but less than 18 years
old and: (a) The actor is related to the victim by blood or affinity to the
third degree; or (b) The actor has supervisory or disciplinary power of any
nature or in any capacity over the victim; or (3) The actor is a resource
family parent, a guardian, or stands in loco parentis within the house-
hold.").
2
See Ariz. Rev. Stat. Ann. § 13-1405; Cal. Penal Code § 261.5; Del.
Code Ann. tit. 11, § 770; Fla. Stat. § 794.05; Idaho Code Ann. § 18-6101;
N.D. Cent. Code § 12.1-20-05; Or. Rev. Stat. § 163.315; Tenn. Code Ann.
§ 39-13-506; Utah Code Ann. § 76-5-401.2; Va. Code Ann. § 18.2-371;
UNITED STATES v. RANGEL-CASTANEDA 9
this consensus, both the Model Penal Code and Black’s Law
Dictionary recognize sixteen as the default age of consent.
See Model Penal Code § 213.3(1)(a); Black’s Law Dictionary
70, 1374 (9th ed. 2009) (defining "statutory rape" as
"[u]nlawful sexual intercourse with a person under the age of
consent (as defined by statute)" and defining "age of consent"
as "[t]he age, usu. defined by statute as 16 years, at which a
person is legally capable of agreeing to . . . sexual inter-
course").
Based on this broad consensus, we conclude that the gen-
eral age of consent for purposes of the "generic, contemporary
meaning" of the term "statutory rape" in U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) is sixteen. This holding comports with that of
the Ninth Circuit, which has squarely and definitively ruled
on the issue. See United States v. Rodriguez-Guzman, 506
F.3d 738, 745-46 (9th Cir. 2007) (finding the age of consent
for generic statutory rape to be sixteen after conducting a
thoroughgoing categorical analysis).
To be sure, the government appears correct in arguing that,
in at least some factual circumstances, "[m]ost states and the
Model Penal Code require proof of an additional element
establishing a minimum age for defendants or requiring a par-
ticular age differential between the defendant and victim" or
provide certain exceptions from prosecution based on such fac-
tors.3 This datum, however, is of no moment in this case
Wis. Stat. Ann. § 948.09. The general age of consent is seventeen in the
remaining seven states. See Colo. Rev. Stat. § 18-3-402; 720 Ill. Comp.
Stat. 5/11-1.50; La. Rev. Stat. Ann. § 14:80; Mo. Rev. Stat. § 566.034;
N.Y. Penal Law §§ 130.05, .25; Tex. Penal Code Ann. § 22.011; Wyo.
Stat. Ann. § 6-2-316.
3
See Ala. Code § 13A-6-62; Alaska Stat. § 11.41.438; Ark. Code Ann.
§ 5-14-127; Colo. Rev. Stat. § 18-3-402; Conn. Gen. Stat. § 53a-71; Del.
Code Ann. tit. 11, § 770; D.C. Code § 22-3009; Fla. Stat. § 794.05; Haw.
Rev. Stat. § 707-730; 720 Ill. Comp. Stat. 5/11–1.50; Ind. Code § 35-42-
4-9; Iowa Code § 709.4; Ky. Rev. Stat. Ann. § 510.060; La. Rev. Stat.
10 UNITED STATES v. RANGEL-CASTANEDA
because in all thirty-four of the jurisdictions that set the gen-
eral age of consent at sixteen, that age never increases, regard-
less of how old the defendant may be. The clear majority of
states on which we rest our ruling thus remains intact. At
some point, this court may be required to decide whether the
generic definition of statutory rape includes an additional ele-
ment pertaining to the defendant’s age. This case, however,
does not compel us to resolve that question, and we therefore
reserve it for another day.
Having thus determined the general age of consent for the
generic definition of statutory rape to be sixteen, it is clear
that Tennessee’s provision is overbroad under Taylor.
Because the age of consent established by that statute is eigh-
teen, it "is overly inclusive, exceeding the common and
accepted definition of statutory rape, and so cannot be cate-
gorically applied to enhance a sentence under
§ 2L1.2(b)(1)(A)(ii)." Rodriguez-Guzman, 506 F.3d at 740.
We in no way suggest that a simple strategy of "counting
noses" will control the outcome of the categorical approach in
all cases for all crimes. Our federal system allows the various
states to define offenses as they see fit, unencumbered by
overly stringent federal sentencing standards. That is precisely
why "minor variations in terminology" must be respected.
Taylor, 495 U.S. at 599. Accordingly, Tennessee retains the
Ann. § 14:80; Me. Rev. Stat. tit. 17-A, § 254; Md. Code Ann., Crim. Law
§§ 3-307, -308; Minn. Stat. § 609.344; Miss. Code Ann. §§ 97-3-65, -95;
Mo. Rev. Stat. § 566.034; Neb. Rev. Stat. § 28-319; Nev. Rev. Stat.
§ 200.364; N.H. Rev. Stat. Ann. § 632-A:3; N.J. Stat. Ann. § 2C:14-2;
N.M. Stat. Ann. § 30-9-11; N.Y. Penal Law § 130.25; N.C. Gen. Stat.
§ 14-27.7A; Ohio Rev. Code Ann. § 2907.04; Okla. Stat. tit. 21, § 1112;
18 Pa. Cons. Stat. §§ 3122.1, 3125; R.I. Gen. Laws § 11-37-6; S.C. Code
Ann. § 16-3-655; S.D. Codified Laws §§ 22-22-1, -7; Tenn. Code Ann.
§ 39-13-506; Tex. Penal Code Ann. § 22.011; Utah Code Ann. § 76-5-
401.2; Vt. Stat. Ann. tit. 13, § 3252; Va. Code Ann. § 18.2-371; Wash.
Rev. Code § 9A.44.079; W. Va. Code § 61-8B-5; Wyo. Stat. Ann. § 6-2-
316; Model Penal Code § 213.3(1)(a).
UNITED STATES v. RANGEL-CASTANEDA 11
ability to define the state crime of statutory rape in the manner
it desires. And yet, when it comes to the common meaning of
that offense for federal sentencing enhancement purposes, the
gap between an age of consent of sixteen versus eighteen is
simply too consequential to disregard, and the majority of
states adopting the former age is too extensive to reject.
Because of the competing concern for uniformity among sen-
tences imposed by federal courts across the nation, we must
accept this broad consensus as stating the generic definition
of statutory rape. See United States v. Wilson, 951 F.2d 586,
590 (4th Cir. 1991) (explaining that while "the categorical
approach furthers the important values of comity and federal-
ism," it also "promotes the Guidelines’ goal of uniformity in
sentencing").
It may be that, although a consensus-based analysis ulti-
mately aids the defendant in the case at bar, the approach can
cut both ways. To wit, if the majority of states subscribes to
a broad definition of an offense enumerated in a federal sen-
tencing enhancement, a defendant convicted in one of those
jurisdictions might not be able to avoid the enhancement by
pointing to a minority view defining the offense more nar-
rowly. Be that as it may, our task is to apply the Taylor deci-
sion in a neutral manner.
IV.
Our review of Rangel’s sentence does not end there, how-
ever. The district court also justified applying the crime-of-
violence enhancement on the ground that Rangel’s statutory
rape conviction constituted a "forcible sex offense[ ]," a sec-
ond predicate crime enumerated in § 2L1.2 cmt. n.1(B)(iii).
The court recited the relevant part of that provision nearly
verbatim, declaring that the Tennessee statutory rape provi-
sion encompasses "a forcible sexual offense that includes one
where consent to the conduct is not given or is not legally
valid, such as where consent is involuntary or incompetent or
coerced." The court concluded that "the State of Tennessee
12 UNITED STATES v. RANGEL-CASTANEDA
has determined that the victim’s consent is incompetent
because of the age difference between the victim and the per-
petrator."
Rangel challenges this alternative basis for the crime-of-
violence enhancement as well. The government does not
attempt to defend the district court’s judgment on the ground
that Rangel’s statutory rape conviction qualified as a forcible
sex offense. And for good reason. To begin with, the statutory
rape provision in the crime-of-violence enhancement
addresses precisely and specifically the situation before us.
Moreover, the district court’s proffered interpretation of
"forcible sex offenses" would, as Rangel contends, "render[ ]
superfluous the inclusion of ‘statutory rape’ as a separate enu-
merated offense," thereby offending "well-established princi-
ples of statutory (and Guidelines) interpretation."
Reading the various portions of the crime-of-violence
enhancement in context, it is clear that the Sentencing Com-
mission purposely juxtaposed the neighboring terms "forcible
sex offense[ ]" and "statutory rape," with the former intended
to connote rape or other qualifying conduct by compulsion
and the latter intended to connote rape on account of the vic-
tim’s age. In United States v. Chacon, this court accordingly
interpreted the word "forcible" in this provision to mean
"[e]ffected by force or threat of force against opposition or
resistance" and, in turn, interpreted "force" as denoting
"[p]ower, violence, or pressure." 533 F.3d 250, 257 (4th Cir.
2008) (citing Black’s Law Dictionary 673-74 (8th ed. 2004)).
The Chacon court thus concluded that "the use of force neces-
sarily involves a degree of compulsion," though it need not be
physical in nature. Id. It is likewise clear that the Guidelines’
reference in describing "forcible sex offenses" to consent that
is "not legally valid" by virtue of being "involuntary, incom-
petent, or coerced" was intended simply to clarify that the req-
uisite compulsion need not be physical in nature. See U.S.S.G.
app. C, amend. 722, at 302-03.
UNITED STATES v. RANGEL-CASTANEDA 13
Here, the fact that Tennessee law renders the consent of a
statutory rape victim formally irrelevant does not mean that
the offense necessarily requires sexual conduct that is "forc-
ible" in the manner described above—that is, involving actual
compulsion. We thus cannot affirm the enhancement on the
alternate basis offered by the district court.
V.
The government argues finally that the same sixteen-level
crime-of-violence enhancement applies because Rangel’s
conviction qualifies as "sexual abuse of a minor," yet another
predicate offense enumerated in § 2L1.2 cmt. n.1(B)(iii). That
argument too fails.
It is tautological to state that "sexual abuse of a minor"
requires that the victim be a minor. And while the precise age
denoted by the word "minor" may vary depending on the legal
context, that age is sixteen for purposes of this enhancement
for the very same reasons described previously. That is, a
large majority of jurisdictions sets the age at which an indi-
vidual is legally capable of consenting to sexual relationships
at sixteen, as discussed above with respect to statutory rape.
It would seem discordant to hold that the same conduct that
is deemed consensual for purposes of one qualifying predicate
could somehow be deemed criminally abusive for purposes of
another predicate. Relying on the general age of consent for
the generic definition of statutory rape therefore precludes
actions that involve only individuals who are above age six-
teen from constituting "sexual abuse of a minor." See
Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152-53 (9th
Cir. 2008) (en banc) (interpreting "sexual abuse of a minor"
in 8 U.S.C. § 1101(a)(43)(A) to require that the victim be less
than sixteen on account, inter alia, of the age of consent for
the generic definition of statutory rape), overruled on other
grounds by United States v. Aguila-Montes de Oca, 655 F.3d
915, 926-28 (9th Cir. 2011) (en banc). We do not attempt to
establish a global definition of a "sexual abuse of a minor"
14 UNITED STATES v. RANGEL-CASTANEDA
offense. In other words, rather than set out what "sexual abuse
of a minor" can mean, we simply note one particular thing
that it cannot mean.
Consequently, because the Tennessee statute under which
Rangel was convicted sets the age of consent at eighteen, it
is categorically overbroad in this respect as well. See Rivera-
Cuartas v. Holder, 605 F.3d 699, 702 (9th Cir. 2010) (finding
Arizona statutory rape provision, for which the age of consent
is eighteen, overbroad with respect to "sexual abuse of a
minor" under § 1101(a)(43)(A)).
For the same reasons, the eight-level "aggravated-felony"
enhancement articulated at U.S.S.G. § 2L1.2(b)(1)(c), which
the district court appears to have referenced in its ruling, can-
not serve as an alternative to the crime-of-violence enhance-
ment. Among multiple other offenses that are irrelevant here,
an "aggravated felony" can include "sexual abuse of a minor."
See U.S.S.G. § 2L1.2 cmt. n.3(A) (adopting definition of "ag-
gravated felony" from 8 U.S.C. § 1101(a)(43), which, in turn,
includes "sexual abuse of a minor" at § 1101(a)(43)(A)). And
while an aggravated felony can also include "rape," 8 U.S.C.
§ 1101(a)(43)(A), we find that Rangel’s conviction cannot be
characterized as such on the same grounds that it does not fall
within the generic definition of statutory rape or a forcible sex
offense.
VI.
Based on the foregoing analysis, we reverse the judgment
of the district court and remand for resentencing. We simply
cannot accept the government’s attempt to justify imposition
of a steep, sixteen-level sentencing enhancement for actions
that are entirely lawful in thirty-two states and the District of
Columbia, as well as under federal law.
We note that the district court appears to have previously
acknowledged that Rangel’s Guidelines range likely would
UNITED STATES v. RANGEL-CASTANEDA 15
have been fifteen to twenty-one months’ imprisonment with-
out the crime-of-violence enhancement, in line with the final
pre-sentence report. As of the date of this decision, Rangel
has been incarcerated for approximately twenty-two months.
We thus urge the district court to proceed on remand as expe-
ditiously as possible.
REVERSED AND REMANDED