United States v. Rodriguez-Guzman ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10585
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00203-BES
JAVIER RODRIGUEZ-GUZMAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted
May 15, 2007—San Francisco, California
Filed October 22, 2007
Before: Betty B. Fletcher, Eugene E. Siler,* and
Michael D. Hawkins, Circuit Judges.
Opinion by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by Judge Siler
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
14141
14144 UNITED STATES v. RODRIGUEZ-GUZMAN
COUNSEL
Franny Forsman, Federal Public Defender, Michael K. Powell
(argued), Assistant Public Defender, Reno, Nevada, for the
defendant-appellant.
Daniel G. Bogden, United States Attorney, Brian L. Sullivan,
Robert A. Bork (argued) Assistant United States Attorneys,
and Robert L. Ellman, Appellate Chief, Reno, Nevada, for the
plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant-Appellant Javier Rodriguez-Guzman challenges
his sentence on the ground that the district court improperly
UNITED STATES v. RODRIGUEZ-GUZMAN 14145
applied a 16-level enhancement based on a prior conviction
for statutory rape under section 261.5(c) of the California
Penal Code. The district court held that Guzman’s conviction
under section 261.5(c) qualified as a per se “crime of vio-
lence” as defined by United States Sentencing Guidelines,
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003). The district court did
not, however, go on to consider whether the particular defini-
tion of statutory rape in section 261.5(c)—which sets the age
of consent at eighteen—comports with the common under-
standing of that crime.
Under Taylor v. United States, the sentencing court must
look to the “generic, contemporary meaning” of an offense
when evaluating prior convictions for the purpose of applying
enhancements. 495 U.S. 575, 598, 110 S. Ct. 2143, 109
L. Ed. 2d 607 (1990). The laws of the vast majority of the
states, federal law, and the Model Penal Code all set the age
of consent at sixteen years old when defining statutory rape.
We therefore hold that although statutory rape qualifies as a
per se “crime of violence” under the Guidelines, section
261.5(c) 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). We VACATE Guzman’s sentence and
REMAND for re-sentencing.
BACKGROUND
The facts below are straightforward and materially undis-
puted. Javier Rodriguez-Guzman (“Guzman”) was indicted on
a single-count of violating 8 U.S.C. § 1326(a), Unlawful
Reentry by a Deported Alien. He was arrested on September
30, 2005, having been deported several prior times. Guzman
entered a guilty plea on December 15, 2005, reserving the
right to challenge his sentence. Guzman’s Presentencing
Report (“PSR”) revealed a conviction in April 2002 for “Un-
lawful Sexual Intercourse With a Minor,” under Cal. Penal
Code section 261.5(c) (2000).
14146 UNITED STATES v. RODRIGUEZ-GUZMAN
Relying on that conviction, the district court determined
that section 261.5(c) constituted statutory rape, a per se
“crime of violence” under § 2L1.2(b)(1)(A)(ii) of the Sen-
tencing Guidelines. The district court imposed an automatic
16-level enhancement to the sentence, without examining the
underlying facts of Guzman’s conviction under section
261.5(c). Similarly, the district court did not consider whether
the age of consent in section 261.5(c)—eighteen years old—
was consistent with a generic and uniform definition of statu-
tory rape. The sole issue on appeal is whether Guzman’s con-
viction under section 261.5(c) was a proper basis for his 16-
level enhancement.
ANALYSIS
I.
A district court’s interpretation of the Guidelines is
reviewed de novo. United States v. Cantrell, 433 F.3d 1269,
1279 (9th Cir. 2006). A district court’s determination that a
prior conviction qualifies as a “crime of violence” under the
Guidelines is also reviewed de novo. United States v. Rivera-
Sanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc).
II.
[1] Guzman first argues that section 261.5(c) is not a per
se “crime of violence” under the Guidelines. To address this
contention, we start with the relevant language of section
261.5(c) and the Guidelines. Section 261.5(c) of the Califor-
nia Penal Code provides:
Any person who engages in an act of unlawful sex-
ual intercourse with a minor who is more than three
years younger than the perpetrator is guilty of either
a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
UNITED STATES v. RODRIGUEZ-GUZMAN 14147
The term “minor” is defined in the same section as “a person
under the age of 18 years.” See section 261.5(a). Although
section 261.5(c) is contained within a section titled “Unlawful
sexual intercourse with person under 18,” courts have recog-
nized that section 261.5 is California’s codification of statu-
tory rape. See, e.g., Michael M. v. Superior Court, 450 U.S.
464, 466, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981) (plurality
opinion); People v. Osband, 919 P.2d 640, 712 (1996)
(“ ‘Statutory rape’ is commonly understood to be the offense
of unlawful sexual intercourse with a minor (§ 261.5). . . .”).
Next, a “crime of violence” in § 2L1.2(b)(1)(A)(ii) of the
Guidelines is defined in the Application Notes and includes a
number of specifically enumerated offenses, among them stat-
utory rape.
“Crime of violence” means any of the following:
murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extor-
tionate 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.S.G. § 2L1.2, Application Note 1(B)(iii) (2003) (empha-
sis added).
[2] When an offense is specifically enumerated by the
Application Notes as a “crime of violence,” we have consis-
tently drawn the conclusion that the offense is a per se crime
of violence under the Guidelines. See United States v.
Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005) (“The
fact that arson is specifically enumerated as a crime of vio-
lence in § 2L1.2(b)(1)(A)(ii) indicates that it is a crime of vio-
lence.”); United States v. Pereira-Salmeron, 337 F.3d 1148,
1152 (9th Cir. 2003) (“If the list of crimes [in the Application
Notes] was intended by the Commission to have any meaning
14148 UNITED STATES v. RODRIGUEZ-GUZMAN
at all, it must have been to highlight certain crimes as deserv-
ing treatment as per se crimes of violence.”); id. (and noting
that every Circuit to address the question has reached the
same conclusion). We reach the same result here. Based on
the specific and deliberate inclusion of statutory rape within
the definition of “crime of violence” in § 2L1.2(b)(1)(A)(ii),
we conclude that section 261.5(c) is a per se crime of violence
under the Guidelines.
Guzman nonetheless argues, counter-intuitively and
counter-textually, that statutory rape is somehow not a “crime
of violence.” He does so by pointing out that statutory rape is
not a “crime of violence” as that term is defined by 8 U.S.C.
§ 1101(a)(43)(F), and it is not enumerated as an “aggravated
felony” in 8 U.S.C. § 1101(a)(43) generally. These two argu-
ments are variations on the same incorrect theme, ignoring the
fact that § 1101(a)(43)’s definition of “crime of violence” is
materially different from the definition of “crime of violence”
in § 2L1.2(b)(1)(A)(ii).
[3] Section 1101(a)(43) does not independently define or
categorize offenses for purposes of imposing sentencing
enhancements under the Guidelines. Rather § 1101(a)(43), a
section of the Aliens and Nationality code, defines the term
“aggravated felony” for purposes of determining what is a
deportable offense, and to fix criminal penalties for reentry
after commission of an “aggravated felony.” See 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggra-
vated felony at any time after admission is deportable.”); id.
§ 1326(b)(2) (establishing penalties for reentry by an alien
“whose removal was subsequent to a conviction for commis-
sion of an aggravated felony”); Randhawa v. Ashcroft, 298
F.3d 1148, 1151-52 (9th Cir. 2002) (cross-referencing the def-
inition of an “aggravated felony” in § 1101(a)(43) as the
deportable offense for § 1227(a)(2)(A)(iii)). Section
1101(a)(43)(F) includes a “crime of violence” in that list of
aggravated felonies. See § 1101(a)(43)(F) (“a crime of vio-
lence (as defined in section 16 of Title 18, but not including
UNITED STATES v. RODRIGUEZ-GUZMAN 14149
a purely political offense) for which the term of imprisonment
[is] at least one year” (emphasis added)). The relevant statute,
18 U.S.C. § 16, in turn defines a “crime of violence” as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical
force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 16 (2007). Section 2L1.2(b)(1)(A)(ii) of the Sen-
tencing Guidelines, meanwhile, contains the substantively dif-
ferent definition of “crime of violence” set forth above, one
that includes a number of specifically identified offenses. The
Guidelines’ definition of a “crime of violence” is thus sepa-
rate and distinct from the definition of “crime of violence” in
§ 1101(a)(43)(F).1
[4] Accordingly, in United States v. Pimentel-Flores, we
considered and rejected the contention that the definition of a
“crime of violence” in § 1101(a)(43)(F) controls what may be
considered a “crime of violence” under § 2L1.2(b)(1)(A)(ii).
339 F.3d 959, 963-64 (9th Cir. 2003). Relying on the differ-
ence between the “plain language” of the statute and the
Guidelines, we said
1
Further textual confirmation that § 2L1.2(b)(1)(A)(ii) is not tied to
§ 1101(a)(43)(F)’s definition of “crime of violence” can be found else-
where in the Guidelines’ Application Notes. Note 1(B)(3)(A) contains the
Guidelines’ definition of “aggravated felony” set forth in
§ 2L1.2(b)(1)(C). Note 1(B)(3)(A) states that “ ‘aggravated felony’ has the
meaning given that term in 8 U.S.C. § 1101(a)(43). . . .” U.S.S.G. § 2L1.2,
Application Note 1(B)(3)(A). Yet, the definition of “crime of violence”
under § 2L1.2(b)(1)(A)(ii) contains no similar cross-reference. Thus, when
the drafters of the Guidelines intended to incorporate definitions from
§ 1101(a)(43), as they did when defining an “aggravated felony” but did
not when defining a “crime of violence,” they made that intention clear.
14150 UNITED STATES v. RODRIGUEZ-GUZMAN
Although the phrase “crime of violence” appears in
both the statute and the new guideline, the new
guideline takes care to include its own definition.
Significantly, the guideline definition is different
from the statutory definition of that phrase. Each
definition works well within its respective regime.
Id.; see also United States v. Lopez-Montanez, 421 F.3d 926,
930-31 (9th Cir. 2005) (discussing difference between defini-
tion of “crime of violence” in § 1101(a)(43)(F) and definition
in Guidelines).
The recognition of this difference in Pimentel-Flores dis-
poses of the authority Guzman relies on to avoid the result
compelled by the Guidelines’ inclusion of the term “statutory
rape” within the definition of “crime of violence.” In Valencia
v. Gonzales, we held that statutory rape under section 261.5(c)
was not a “crime of violence” as that term is defined by
§ 1101(a)(43)(F). 439 F.3d 1046, 1052-53 (9th Cir. 2006).
Valencia, however, relied on the differing definitions of
“crime of violence” in § 1101(a)(43)(F) and the Guidelines to
reach that result: “[T]he Commentary to section 2L1.2 of the
Guidelines lists statutory rape as a per se crime of violence.
. . . Here, Congress provided no similar indications of an
intent to make statutory rape an aggravated felony under the
crime of violence definition in 8 U.S.C. § 1101(a)(43)(F).”
439 F.3d at 1053.2
2
Our decision in United States v. Lopez-Solis does not undermine the
conclusion that statutory rape is a per se “crime of violence” under the
Guidelines in their present form. 447 F.3d 1201 (9th Cir. 2006). That case
held that Tennessee’s statutory rape statute did not qualify as a crime of
violence under § 2L1.2. Id. at 1211. We were, however, interpreting the
2002 version of § 2L1.2. Id. at 1203 n.1. As we observed in Lopez-Solis,
in 2003 the Guidelines’ definition of “crime of violence” was amended to
include “statutory rape” as a per se offense. Id. Because Lopez-Solis was
sentenced a year before the 2003 amendment took effect, we were unable
to rely on the more recent definition of “crime of violence” due to ex post
facto concerns. Id. at 1204-05. Here, Guzman was charged as a result of
conduct that occurred in 2005, and there is no dispute that the 2002
amended definition of “crime of violence” controls.
UNITED STATES v. RODRIGUEZ-GUZMAN 14151
[5] Guzman’s final contention, that the district court erred
when it found statutory rape qualifies as an “aggravated felo-
ny,” is similarly flawed. This argument rests on a faulty prem-
ise, belied by the record and the text of § 2L1.2(b)(1). Section
2L1.2(b)(1) sets forth several distinct categories of convic-
tions, which each carry sentencing enhancements of varying
severity. Section 2L1.2(b)(1)(A)(ii) provides that a conviction
for a “crime of violence” results in a 16-level enhancement.
A separate sub-section, § 2L1.2(b)(1)(C),3 provides that a
conviction for an “aggravated felony” results in a 8-level
enhancement. The district court did not conclude that Guz-
man’s conviction under section 261.5(c) was an “aggravated
felony” under § 2L1.2(b)(1)(C). Rather, the district court
quite explicitly classified section 261.5(c) as a “crime of vio-
lence” under § 2L1.2(b)(1)(A)(ii) and applied a 16-level
enhancement. The district court never deemed statutory rape
an “aggravated felony” under the Guidelines, a fact that the
16-level enhancement Guzman challenges plainly evinces.
Our analysis does not, however, end there. Having deter-
mined that section 261.5(c) qualifies as a per se crime of vio-
lence under § 2L1.2(b)(1)(A)(ii), we must next consider
whether the statutory definition used by California comports
with the generic and contemporary meaning of the offense of
statutory rape.
III.
[6] In order to determine whether a prior conviction for a
particular offense meets the Sentencing Guidelines’ definition
of that offense, we use the categorical approach set forth in
Taylor v. United States. 495 U.S. at 600; see also Velasquez-
Reyes, 427 F.3d at 1229. Under the categorical approach, “we
do not look to the specific conduct that was the basis of a
defendant’s state convictions. Instead, we consider the statu-
3
U.S.S.G. § 2L1.2(b)(1)(C) reads: “a conviction for an aggravated fel-
ony, increase by 8 levels. . . .”
14152 UNITED STATES v. RODRIGUEZ-GUZMAN
tory definition of the crime. A state’s definition of [the crime]
must be compared with the generic definition of that crime to
determine if the defendant’s conviction is a crime of violence
pursuant to the Sentencing Guidelines.” Velasquez-Reyes, 427
F.3d at 1229-30 (citation omitted). This analysis is required
even when the object offense is enumerated as a per se crime
of violence under the Guidelines. Id. (arson a per se crime of
violence under § 2L1.2(b)(1)(A)(ii), but under Taylor must
compare Washington’s statutory definition to generic defini-
tion).4 It is this generic definition of an offense that controls,
“independent of the labels employed by the various States’
criminal codes.” Taylor, 495 U.S. at 592.
Taylor directs that an offense’s generic definition under the
Guidelines can be drawn from the “sense in which the term
is now used in the criminal codes of most States.” 495 U.S.
at 598. Taylor likewise suggests that an offense’s definition
in the Model Penal Code can serve as an aid in determining
the “generic” meaning of the offense. 495 U.S. at 598 n.8. We
have followed that guidance in this Circuit. See Morales-
Alegria v. Gonzales, 449 F.3d 1051, 1054-55 (9th Cir. 2006)
(looking to the Model Penal Code and state laws to define the
crime of forgery under Taylor).
[7] We have employed slightly different methodologies to
perform the Taylor analysis, depending on the nature of the
offense at issue. If the qualifying offense is a “traditional
common law crime, then we have defined the offense in terms
4
It is for this reason that the district court erred in its reliance on United
States v. Hernandez-Castillo, 449 F.3d 1127 (10th Cir. 2006). In
Hernandez-Castillo, the Tenth Circuit held that section 261.5(c) is statu-
tory rape and thus a per se crime of violence under the Guidelines. 449
F.3d at 1131. But Hernandez-Castillo did not subsequently engage in the
Taylor analysis that we are required to undertake here. Thus, it did not
address or decide the appropriate age of consent for the generic federal
definition of statutory rape. To the extent that Hernandez-Castillo can be
read to suggest that a Taylor analysis is not required for per se crimes of
violence, we reject it as persuasive authority.
UNITED STATES v. RODRIGUEZ-GUZMAN 14153
of its generic, core meaning.” United States v. Corona-
Sanchez, 291 F.3d 1201, 1204 (9th Cir. 2002) (en banc),
abrogated on other grounds, United States v. Vidal, 426 F.3d
1011, 1015 (9th Cir. 2005). But, where “the qualifying
offense is described in terms that do not embrace a common
law crime, we have ‘employed the ordinary, contemporary,
and common meaning’ of the statutory words.” Id. (quoting
United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th
Cir. 2001)).
[8] In United States v. Gomez-Mendez, we classified statu-
tory rape in the latter category as a “nontraditional offense[ ].”5
5
We question whether statutory rape is properly categorized as a “non-
traditional offense” as opposed to a “traditional common law crime.” It is
true that “statutory rape” is not the same offense as common law “forcible
rape.” Gomez-Mendez, 486 F.3d at 602 n.4. But observing that those two
offenses are distinct does not mean that one is a common law offense and
the other is not. The history of statutory rape, indeed the history of the
California law under consideration here, suggests a different conclusion.
California’s statutory rape law has ancient origins. Michael M., 450
U.S. at 494 n. 9 (Brennan, J. dissenting) (“California’s statutory rape law
had its origins in the Statutes of Westminster enacted during the reign of
Edward I at the close of the 13th century . . . . This statute was part of the
common law brought to the United States.” (emphasis added) (citation
omitted)). Although first defined in England by statute, statutory rape
came to this country as part of the common law. 2 Wayne R. LaFave, Sub-
stantive Criminal Law, § 17.4(c), at 648 (2d ed. 2003) (“[T]he English
statute was old enough to be encompassed within the common law of the
United States, which explains why in early times prosecutions based upon
the above rationale were permitted in American states lacking a compara-
ble statute. In either event, this variety of rape came to be known as ‘statu-
tory rape,’ apparently because it was originally engrafted onto the
common law by statute, and that term is so used even today notwithstand-
ing the fact that now statutes virtually everywhere encompass the totality
of the crime of rape.” (footnote omitted) (emphasis added)).
Regardless, whether we define statutory rape based on its “generic, core
meaning” or based on the “ ‘ordinary, contemporary, and common mean-
ing’ of the statutory words,” Corona-Sanchez, 291 F.3d at 1204, we reach
the same result. Either the age of consent is sixteen as part of the general
definition of the offense, or the term “minor” in the context of a statutory
14154 UNITED STATES v. RODRIGUEZ-GUZMAN
486 F.3d 599, 602 (9th Cir. 2007). We went on to define stat-
utory rape as “ordinarily, contemporarily, and commonly
understood to mean the unlawful sexual intercourse with a
minor under the age of consent specified by state statute.” Id.
at 603. But we did not answer6 the dispositive question pre-
sented here: what is the ordinary, contemporary, and common
meaning of the term “minor” in the context of a statutory rape
law relied on for a sentencing enhancement?
[9] The Model Penal Code, section 213.3(1)(a), defines
statutory rape as “[a] male who has sexual intercourse with a
female not his wife, or any person who engages in deviate
sexual intercourse or causes another to engage in deviate sex-
ual intercourse, . . . if: (a) the other person is less than [16]
years old and the actor is at least [four] years older than the
other person. . . .” Model Penal Code § 213.3(1)(a) (2001).
Federal law defines statutory rape, termed “sexual abuse of a
minor,” as knowingly engaging in “a sexual act with another
person who (1) has attained the age of 12 years but has not
attained the age of 16 years; and (2) is at least four years
younger than the person so engaging.” 18 U.S.C. § 2243(a)
(2006). As Guzman points out, according to the count of one
commentator, by 1997, thirty states had set the age of consent
for statutory rape at sixteen. Charles A. Phipps, Children,
Adults, Sex and the Criminal Law: In Search of Reason, 22
rape provision means a person under age sixteen. One of the primary pur-
poses of the Taylor analysis is to establish a “uniform definition [of an
offense] independent of the labels employed by the various States’ crimi-
nal codes.” 495 U.S. at 592. We thus find it highly improbable that the
Taylor analysis would produce different results depending on which dis-
crete sub-methodology we use to perform it.
6
Gomez-Mendez addressed whether a different section of the California
Penal Code, section 261.5(d), could serve as statutory rape for purposes
of a 16-level sentence enhancement under § 2L1.2(b)(1)(A)(ii). 486 F.3d
at 600-01. Unlike § 261.5(c), however, section 261.5(d) only criminalizes
sexual intercourse with “a minor who is under 16 years of age.” Gomez-
Mendez is therefore not in conflict with our decision here.
UNITED STATES v. RODRIGUEZ-GUZMAN 14155
Seton Hall Legis. J. 1, 136-41 (1997). A member of this Court
recently observed that California’s statutory rape provision is
out-of-step with the “vast majority of states” that do not use
eighteen as the age of consent, and that as many as “[t]hirty-
five states permit sexual intercourse between a 22-year old
and someone who just turned 16, almost two years younger
than California would permit.” Estrada-Espinoza v. Gonzales,
No. 05-75850, ___ F.3d ___, slip op. at 9970 (9th Cir. Aug.
16, 2007) (Thomas, J., concurring); see also, United States v.
Thomas, 159 F.3d 296, 299 (7th Cir. 1998) (“[I]n a majority
of states 16 is the age of consent, rather than 17 as in Illi-
nois.”). In light of this authority, we conclude that the term
“minor” in the context of a statutory rape law means a person
under sixteen years of age.7
7
In the immigration context, we have twice deferred to Board of Immi-
gration Appeals (“BIA”) decisions that violation of section 261.5(c) quali-
fies as “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) for
purposes of removal. Estrada-Espinoza, ___ F.3d ___, No. 05-75850, slip
op. at 9961-62; Afridi v. Gonzales, 442 F.3d 1212, 1216-17 (9th Cir.
2006). In both Afridi and Estrada-Espinoza, the BIA adopted a definition
of the term “minor” as a person under 18. Estrada-Espinoza, ___ F.3d
___, No. 05-75850, slip op. at 9961-62; Afridi, 442 F.3d at 1214-16. In
Afridi, we noted that because the BIA had adopted a “permissible” con-
struction of the term “minor,” we were required to “defer” to that interpre-
tation. 442 F.3d at 1216 (citing Yeghiazaryan v. Gonzales, 431 F.3d 678,
682 (9th Cir. 2005) (noting that courts generally defer to BIA’s interpreta-
tion of immigration laws), amended on other grounds on denial of reh’g,
439 F.3d 994 (9th Cir. 2006). We relied exclusively on Afridi in Estrada-
Espinoza to conclude that the BIA did not err when it rejected the petition-
er’s argument that “ ‘minor’ should be defined, for sexual abuse purposes,
as anyone under age 16 to reflect the age of consent in the majority of
states.” ___ F.3d ___, No. 05-75850, slip op. at 9961-62; id. at 9961
(“Afridi is binding precedent and controls this case.”).
Whatever deference we might owe to the BIA when reviewing its inter-
pretation of immigration laws, that deference is not appropriate here. Can-
trell, 433 F.3d at 1279 (district court’s interpretation of Guidelines
reviewed de novo). Indeed, we have previously relied on this distinction
to observe that we are not bound by Afridi in the sentencing context. See
Lopez-Solis, 447 F.3d at 1209-10 (“In [Afridi] ‘established principles of
deference to administrative agencies’ narrowed our review. . . . In this
case, no agency is involved. . . . We are faced with an entirely different
14156 UNITED STATES v. RODRIGUEZ-GUZMAN
The Government suggests that the use of the word “minor”
in section 261.5(c) requires us to adopt the generalized, dic-
tionary definition of that term, which is a person under the age
of eighteen. See Black’s Law Dictionary 1017 (8th ed. 2004)
(“A person who has not yet reached full legal age; a child or
juvenile.”). But a closer reading of the dictionary meaning of
statutory rape confirms that sixteen is the proper age for
establishing a uniform definition of the offense. Black’s Law
Dictionary defines “statutory rape” as “[u]nlawful sexual
intercourse with a person under the age of consent (as defined
by statute), regardless of whether it is against that person’s
will.” Id. at 1288 (emphasis added). The operative term, “age
of consent,” is in turn defined as “[t]he age, usu. defined by
statute as 16 years, at which a person is legally capable of
agreeing to marriage (without parental consent) or to sexual
intercourse.” Id. at 66 (emphasis added).8 While it is true that
the age of consent may vary according to individual state stat-
utes, the “usual” definition is sixteen years old. Id.; Corona-
Sanchez, 291 F.3d at 1204 (“ ‘ordinary, contemporary, and
common meaning’ ”).
[10] Because section 261.5(c) establishes eighteen as the
age of consent, it is overly inclusive of the generic federal
definition of statutory rape we adopt today. Accordingly, the
district court erred when it categorically applied a 16-level
enhancement based on Guzman’s prior conviction under sec-
tion 261.5(c). When, as here, the statute of conviction is
overly inclusive, Taylor permits “the sentencing court to go
beyond the mere fact of conviction.” 495 U.S. at 602. In such
cases we may “consider whether other documentation and
task: reviewing de novo the district court’s definition of the phrase ‘sexual
abuse of a minor.’ Accordingly, we need not adopt the definition adopted
by the Board to which the panel deferred in Afridi.” (footnotes omitted)).
8
Although “minor” as used in section 261.5(c) is defined by statute as
a person under the age of eighteen, we note that the federal statutory rape
provision also uses the term “minor,” yet sixteen is still the age of consent.
See 18 U.S.C. § 2243(a)(1).
UNITED STATES v. RODRIGUEZ-GUZMAN 14157
judicially noticeable facts demonstrate that the offense was,
indeed, within the Guidelines’ definition.” United States v.
Shumate, 329 F.3d 1026, 1029 (9th Cir. 2003), as amended by
341 F.3d 852 (9th Cir. 2003). The purpose of this “modified
categorical approach is to determine if the record unequivo-
cally establishes that the defendant was convicted of the
generically defined crime, even if the statute defining the
crime is overly inclusive.” Corona-Sanchez, 291 F.3d at 1211.
[11] Here, the only documentation in the record besides the
PSR is the felony complaint, which itself merely identifies
section 261.5(c) as the statute of conviction. Thus, the record
is insufficient to establish Guzman’s conviction under sec-
tion 261.5(c) as a conviction that satisfies the Guidelines’ def-
inition of statutory rape, which sets the age of consent at sixteen.9
Accordingly, we reverse and remand for re-sentencing.
Lopez-Solis, 447 F.3d at 1211 (remanding for re-sentencing
where judicially noticeable facts provided no more than the
fact of conviction).
CONCLUSION
Section 261.5(c), statutory rape, is a per se crime of vio-
lence under § 2L1.2(b)(1)(A)(ii) of the Guidelines. However,
section 261.5(c), which sets the age of consent at eighteen, is
overbroad. The generic federal definition of statutory rape,
reflecting the age of consent established by the overwhelming
body of authority, requires that the victim be under sixteen
9
At Guzman’s sentencing hearing his counsel represented that at the
time of the offense Guzman was twenty and the intercourse was with his
seventeen year old girlfriend. The Court accepted these representations for
purposes of making a discretionary downward departure from the Guide-
lines. Even if the transcript of the sentencing hearing suggested the
opposite—that Guzman’s offense qualified under the modified categorical
approach—it would not suffice because that transcript is not judicially
noticeable as a “record[ ] of the convicting court.” Shepard v. United
States, 544 U.S. 13, 23 (2005).
14158 UNITED STATES v. RODRIGUEZ-GUZMAN
years of age. We REVERSE and REMAND for re-
sentencing.
SILER, Circuit Judge, concurring in part and dissenting in
part:
I concur with the majority in finding that § 261.5(c) of the
California Penal Code qualifies as a per se crime of violence
under USSG § 2L1.2(b)(1)(A)(ii). However, I dissent from
the majority on whether the district court erred by finding that
a 16-level enhancement was appropriate for Rodriguez-
Guzman based upon his prior conviction of statutory rape in
California.
I agree with the majority that under Taylor v. United States,
495 U.S. 575, 600 (1990), we must follow a categorical
approach to determine whether Rodriguez-Guzman was con-
victed of a crime of violence. Likewise, under Taylor, we can
look at the Model Penal Code as an aid in determining the
“generic” meaning of the offense. Id. at 598 n.8. However, I
would modify the Model Penal Code in defining statutory
rape as sexual intercourse with another who is not his or her
spouse, or any person who engages in deviate sexual inter-
course or causes another to engage in deviate sexual inter-
course if the actor is at least four years older than the victim
and the victim is under the age of consent. I realize that this
is not the exact definition from the Model Penal Code. If one
accepts the Model Penal Code as now written, then a female
who has been convicted under state law of statutory rape
could never receive an enhancement on a subsequent convic-
tion under the Guidelines.
Instead, I would follow the language from United States v.
Gomez-Mendez, 486 F.3d 599, 603 (9th Cir. 2007), where we
stated: “The term ‘statutory rape’ is ordinarily, contempo-
rarily, and commonly understood to mean the unlawful sexual
UNITED STATES v. RODRIGUEZ-GUZMAN 14159
intercourse with a minor under the age of consent specified by
state statute.” Admittedly, that case related to a conviction
under § 261.5(d), involving a minor under sixteen years of
age. However, although we recognized that the Model Penal
Code and some other states’ statutes set the age of consent at
16, whereas California set the age of consent at 18, the “dif-
ference is of no consequence.” Id. at 604. Furthermore, we
stated: “Thus a state statute criminalizing unlawful sexual
intercourse with a minor can fall within the generic definition
even if it allows no mistake-of-age defense.” Id.
The majority suggests that California’s statutory rape law
is out-of-step with the “vast majority of states.” It is true that
the majority of states use 16 as the age of consent. However,
a substantial minority of states use the age of either 18 or 17
as the age of consent.1 The substantial minority may even
constitute a majority of the population in the United States, as
it includes some of the more populous states such as Califor-
nia, Texas, New York, Florida, and Illinois. Moreover, when
we examine those states which ordinarily consider 16 as the
age of consent, many of their statutes raise the age of consent
to 18 if the actor is a parent, guardian, teacher, person in a
position of authority, or another relative.2 Therefore, I would
1
Arizona (18), Ariz. Rev. Stat. Ann. § 13-1405; California (18), Cal.
Penal Code § 261.5; Florida (18), Fla. Stat. Ann. § 794.05 (if defendant is
24 or older); Idaho (18), Idaho Code § 18-6101; Illinois (17), 720 Ill.
Comp. Stat. § 5/12-16; Louisiana (17), La. Rev. Stat. Ann. § 14:80; Mis-
souri (17), Mo. Rev. Stat. § 566.034; New Mexico (17), N.M. Stat. Ann.
§ 30-9-11 (if defendant is at least four years older than victim); New York
(17), N.Y. Penal Law § 130.25 (if defendant is 21 or older); North Dakota
(18), N.D. Cent. Code § 12.1-20-05; Oregon (18), Or. Rev. Stat.
§ 163.435; Tennessee (18), Tenn. Code Ann. § 39-13-506 (if defendant is
more than five years older than victim); Texas (17), Tex. Penal Code
§ 22.011; Utah (18), Utah Code Ann. §§ 76-5-402, 76-5-406(11) (if defen-
dant is more than three years older than victim and entices or coerces vic-
tim to participate); Virginia (18), Va. Code Ann. § 18.2-371; Wisconsin
(18), Wis. Stat. Ann. § 948.09.
2
See Alaska Stat. § 11.41.434, 11.41.436; Ark. Code Ann. §§ 5-14-124,
5-14-125; Colo. Rev. Stat. § 18-3-405.3; Conn. Gen. Stat. Ann. § 53a-71;
14160 UNITED STATES v. RODRIGUEZ-GUZMAN
not find that California is out-of-step, nor are these other
states with an age of consent at 17 or 18 out-of-step. I suggest
that the age of consent for statutory rape is set by the individ-
ual states, and under the circumstances found in this case,
Rodriguez-Guzman’s sentence under the Guidelines should be
enhanced as properly effected by the district court.
In sum, I would affirm the judgment of the district court.
Fla. Stat. Ann. § 794.011; 720 Ill. Comp. Stat. § 5/12-13; Ind. Code § 35-
42-4-7; Kan. Stat. Ann. § 21-3603; La. Rev. Stat. Ann. § 14:78.1; Me.
Rev. Stat. Ann. tit. 17-A, § 253; Minn. Stat. § 609.344; Miss. Code Ann.
§ 97-3-95; Mont. Code Ann. § 45-5-507; N.J. Stat. Ann. § 2C:14-2; N.C.
Gen. Stat. § 14-27.7; Ohio Rev. Code Ann. § 2907.03; S.D. Codified Laws
§ 22-22A-3; Utah Code Ann. §§ 76-5-402 & 76-5-406(10); Vt. Stat. Ann.
tit. 13, § 3252; Wash. Rev. Code § 9A.44.093; W. Va. Code § 61-8D-5;
Wyo. Stat. Ann. §§ 6-2-314, 6-2-317.