United States v. Juan Quintero-Junco ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10087
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-02145-
DCB-LAB-1
JUAN QUINTERO-JUNCO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
May 14, 2014—San Francisco, California
Filed June 12, 2014
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and James L. Robart, District Judge.*
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable James L. Robart, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
2 UNITED STATES V. QUINTERO-JUNCO
SUMMARY**
Criminal Law
The panel affirmed a sentence for illegal reentry after
deportation in a case in which the district court applied an
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the
ground that the defendant’s prior conviction for attempted
sexual abuse under Arizona Revised Statutes § 13-1404 was
a forcible sex offense and thus a crime of violence.
The panel held that because the district court adequately
considered the Sentencing Guidelines in fashioning the
defendant’s sentence, its sentencing methodology was proper.
The panel held that the district court properly analyzed
the defendant’s prior conviction under the modified
categorical approach because § 13-1404 is divisible. The
panel held that the district court, which did not have the
benefit of Descamps v. United States, misapplied the
modified categorical approach by looking behind the
defendant’s conviction in search of record evidence that he
actually committed the generic offense, but that the error was
inconsequential because the elements of the statutory prong
under which the defendant was convicted categorically match
the elements of the generic definition of forcible sex offense.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. QUINTERO-JUNCO 3
COUNSEL
Myrna R. Beards (argued), Tucson, Arizona, for Defendant-
Appellant.
Erica L. Seger (argued), Assistant United States Attorney,
Tucson, Arizona, for Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
In this appeal, we consider whether the district court gave
adequate weight to the United States Sentencing Guidelines
(USSG or Guidelines) when sentencing Defendant-Appellant
Juan Gregorio Quintero-Junco. We also consider whether
Quintero-Junco’s prior conviction for attempted sexual abuse,
in violation of Arizona Revised Statutes (ARS) § 13-1404,
constitutes a “forcible sex offense,” and therefore a “crime of
violence,” under the Guidelines. See USSG § 2L1.2 cmt.
n.1(B)(iii). Because the district court adequately considered
the Guidelines in fashioning Quintero-Junco’s sentence, we
conclude that the court’s sentencing methodology was proper.
Applying the modified categorical approach, we further
conclude that the portion of ARS § 13-1404 under which
Quintero-Junco was previously convicted is categorically a
forcible sex offense. We therefore affirm the judgment of the
district court.
FACTUAL AND PROCEDURAL BACKGROUND
Quintero-Junco, a citizen of Mexico, was arrested in
Arizona on September 27, 2012. Because he had previously
4 UNITED STATES V. QUINTERO-JUNCO
been deported on June 10, 2008, he was charged with illegal
reentry after deportation, in violation of 8 U.S.C. § 1326.
On December 6, 2012, Quintero-Junco pleaded guilty to
the indictment without a plea agreement. On January 11,
2013, the Probation Office produced its Presentence
Investigation Report (PSR), which noted that Quintero-Junco
had previously been convicted of attempted sexual abuse, in
violation of ARS § 13-1404. The PSR classified Quintero-
Junco’s prior conviction as a “forcible sex offense,” and
therefore a “crime of violence,” which would subject him to
a sentencing enhancement under USSG § 2L1.2(b)(1)(A)(ii).
Quintero-Junco objected to the enhancement.
The district court sentenced Quintero-Junco on February
14, 2013. At the sentencing hearing, the court first calculated
the applicable Guidelines range. In so doing, the court
explained that Quintero-Junco’s prior Arizona conviction was
“potentially . . . categorically a crime of violence.” The court
then determined, however, that “the plea transcript that has
been filed, and the factual basis for the plea in the case, and
. . . judicially noticeable documents” showed that the prior
conviction constituted a crime of violence under the modified
categorical approach. The court therefore concluded that
Quintero-Junco was subject to a twelve-level enhancement
and calculated his total offense level under the Guidelines to
be seventeen. The district court then calculated Quintero-
Junco’s Guidelines range to be between twenty-seven months
and thirty-three months of incarceration.
Nevertheless, the district court explained that the
Guidelines calculation “doesn’t really matter” in Quintero-
Junco’s case. Instead of imposing a sentence within the
Guidelines range, the district court sentenced Quintero-Junco
UNITED STATES V. QUINTERO-JUNCO 5
principally to a term of fifty-two months of incarceration.
According to the district court, Quintero-Junco’s criminal
history, including his previous incarceration for illegal
reentry, militated in favor of a custodial sentence of longer
than seventy-seven months. However, the court ultimately
sentenced Quintero-Junco to fifty-two months of
imprisonment on account of the age of Quintero-Junco’s
criminal record, as well as his “age and infirmity.” Quintero-
Junco timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
unpreserved claims of procedural error at sentencing for plain
error. See United States v. Valencia-Barragan, 608 F.3d
1103, 1108 (9th Cir. 2010). We review de novo a district
court’s determination that a prior conviction constitutes a
crime of violence under the Guidelines. United States v.
Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir. 2014)
(citing United States v. Gomez-Hernandez, 680 F.3d 1171,
1174 (9th Cir. 2012)).
DISCUSSION
Quintero-Junco asserts that the district court committed
two reversible errors in connection with his sentencing. First,
although he did not raise this argument in the district court,
Quintero-Junco contends on appeal that the court gave
inadequate weight to the Guidelines. Second, he argues that
the district court erroneously classified his prior Arizona
conviction for attempted sexual abuse as a forcible sex
offense, and therefore a crime of violence. We reject both of
these arguments.
6 UNITED STATES V. QUINTERO-JUNCO
I. Sentencing Methodology
Quintero-Junco argues, for the first time on appeal, that
the district court gave inadequate weight to the applicable
Guidelines range when imposing his sentence. Even though
the Guidelines are advisory, “the district court must correctly
calculate the recommended Guidelines sentence and use that
recommendation as the ‘starting point and the initial
benchmark.’” United States v. Munoz-Camarena, 631 F.3d
1028, 1030 (9th Cir. 2011) (per curiam) (quoting Kimbrough
v. United States, 552 U.S. 85, 108 (2007)). Thus, we have
explained that “[a] district court must start with the
recommended Guidelines sentence, adjust upward or
downward from that point, and justify the extent of the
departure from the Guidelines sentence.” Munoz-Camarena,
631 F.3d at 1030. According to Quintero-Junco, the district
court contravened this procedure by stating at the beginning
of the sentencing hearing that it did not intend to impose a
Guidelines sentence.
At the outset of the sentencing hearing, the district court
stated that it believed that the Guidelines would provide
“poor advice” in this case given Quintero-Junco’s record of
recidivism. The district court further explained that defense
counsel’s arguments against the sentencing enhancement
would not “help Mr. Quintero-Junco” because the Guidelines
were “not going to guide” the court in imposing a sentence.
Based on these comments, Quintero-Junco contends that the
district court failed to treat the Guidelines as its starting point.
Quintero-Junco misreads the record. To be sure, the
district court acknowledged early in the hearing that it
intended to vary from the Guidelines in imposing a sentence.
But the court followed the required procedure in doing so.
UNITED STATES V. QUINTERO-JUNCO 7
While Quintero-Junco contends that the district court gave the
Guidelines short shrift, the court expressly recognized that it
was “obligat[ed] to find the [G]uidelines . . . because it’s a
starting point for a number of things.” The district court then
explained that it would vary from the recommended
Guidelines range because Quintero-Junco had re-offended in
spite of having previously received a “very, very long
sentence” for the same offense. Indeed, the district court
specifically noted that, in light of Quintero-Junco’s criminal
history, an above-Guidelines sentence was required “to
promote respect for the law” and to deter Quintero-Junco
from offending yet again. See 18 U.S.C. § 3553(a) (directing
courts to consider “deterrence” and the need “to promote
respect for the law” in imposing a sentence).
Accordingly, the district court did not commit any
methodological error, much less plain error. The court
acknowledged that it was required to start with a Guidelines
calculation, and then it relied on the § 3553(a) factors to
impose a non-Guidelines sentence. The court therefore
properly treated the Guidelines as its starting point, see
Munoz-Camarena, 631 F.3d at 1030, and it adequately
“explain[ed] the sentence selected, including any deviation
from the Guidelines range.” United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc); see also United States v.
Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (affirming a
sentence where the district court “considered the guidelines
and imposed what it felt was the appropriate sentence”). For
these reasons, Quintero-Junco’s argument that the district
court failed adequately to consider the Guidelines is without
merit.
8 UNITED STATES V. QUINTERO-JUNCO
II. Crime of Violence Enhancement
Quintero-Junco next contends that the district court
erroneously classified his prior Arizona conviction for
attempted sexual abuse as a forcible sex offense, and thus a
crime of violence. As a result of this classification, the
district court found Quintero-Junco eligible for a twelve-level
sentencing enhancement. Quintero-Junco contends that the
district court erred in this respect, and therefore miscalculated
the applicable Guidelines range. But Quintero-Junco’s
argument is unavailing, because (1) the modified categorical
approach applies; and (2) Quintero-Junco’s prior conviction
for attempted sexual abuse constitutes a forcible sex offense
under that analysis.1
A. Legal Framework
Under the Guidelines, the base offense level for a
violation of 8 U.S.C. § 1326—the crime for which Quintero-
Junco was sentenced here—is eight. See USSG § 2L1.2(a).
However, “[i]f the defendant was previously deported after
being convicted of a felony that constitutes a ‘crime of
violence,’” the offense level increases. United States v.
Caceres-Olla, 738 F.3d 1051, 1053 (9th Cir. 2013) (quoting
USSG § 2L1.2(b)(1)(A)(ii)). As relevant here, a “crime of
violence” is defined to include “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
involuntary, incompetent, or coerced).” USSG § 2L1.2 cmt.
n.1(B)(iii). Further, “an attempt to commit a crime of
1
We have previously held that Arizona’s definition of attempt is
coextensive with the federal definition. See United States v. Taylor,
529 F.3d 1232, 1238 (9th Cir. 2008).
UNITED STATES V. QUINTERO-JUNCO 9
violence is itself a crime of violence.” United States v.
Wenner, 351 F.3d 969, 976 (9th Cir. 2003) (citing USSG
§ 4B1.2 cmt. n.1).
To determine whether a prior conviction constitutes a
crime of violence, courts generally apply the “formal
categorical approach” established in Taylor v. United States,
495 U.S. 575, 600 (1990). Under the categorical approach,
“sentencing courts compare the elements of the statute of
conviction with a federal definition of the crime to determine
whether conduct proscribed by the statute is broader than the
generic federal definition.” Caceres-Olla, 738 F.3d at 1054
(quoting Valencia-Barragan, 608 F.3d at 1107) (internal
quotation marks omitted). “If the statute of conviction
‘sweeps more broadly than the generic crime, a conviction
under that law cannot count as [a qualifying] predicate, even
if the defendant actually committed the offense in its generic
form.’” Caceres-Olla, 738 F.3d at 1054 (quoting Descamps
v. United States, 133 S. Ct. 2276, 2283 (2013)).
The categorical approach precludes sentencing courts
from considering information other than the respective
elements of the crime of conviction and the generic federal
crime. Descamps, 133 S. Ct. at 2283. In a “narrow range of
cases,” however, sentencing courts may instead apply the
“modified categorical approach,” and “may look beyond the
statutory elements to the charging paper and jury instructions
to determine whether the defendant’s conviction necessarily
involved facts corresponding to the generic federal offense.”
Caceres-Olla, 738 F.3d at 1054 n.2 (quoting Descamps,
133 S. Ct. at 2283–84) (internal quotation marks omitted).
As the Supreme Court recently clarified in Descamps, courts
may employ the modified categorical approach only when the
statute of conviction is “divisible,” in that it “lists multiple,
10 UNITED STATES V. QUINTERO-JUNCO
alternative elements, and so effectively creates ‘several
different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting
Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).
Where a statute of conviction is divisible, a sentencing
court employing the modified categorical approach may
“consult a limited class of documents, such as indictments
and jury instructions, to determine which alternative formed
the basis of the defendant’s prior conviction.” Descamps,
133 S. Ct. at 2281. “The court can then do what the
categorical approach demands: compare the elements of the
crime of conviction (including the alternative element used in
the case) with the elements of the generic crime.” Id. If the
elements of the statutory alternative under which the
defendant was convicted are broader than the generic crime,
the prior conviction “cannot count as [a qualifying]
predicate.” Id. at 2283.
B. Modified Categorical Approach
The district court properly analyzed Quintero-Junco’s
prior conviction under the modified categorical approach
because the Arizona statute under which he was convicted is
divisible. Under ARS § 13-1404, “[a] person commits sexual
abuse by intentionally or knowingly engaging in sexual
contact with any person who is fifteen or more years of age
without consent of that person or with any person who is
under fifteen years of age if the sexual contact involves only
the female breast.” As this language demonstrates, a
defendant can violate the statute in two distinct ways. First,
a defendant violates the statute if he “intentionally or
knowingly engag[es] in sexual contact with any person who
is fifteen or more years of age without consent of that
person.” Id. Alternatively, a defendant also violates the
UNITED STATES V. QUINTERO-JUNCO 11
statute if he “intentionally or knowingly engag[es] in sexual
contact . . . with any person who is under fifteen years of age
if the sexual contact involves only the female breast.” Id.
Because the Arizona statute “list[s] potential offense
elements in the alternative,” it is divisible, and the modified
categorical approach may be applied to discern the prong
under which Quintero-Junco was convicted. See Descamps,
133 S. Ct. at 2283.
C. Forcible Sex Offense
Although the district correctly recognized that the
modified categorical approach applies here, the court—which
did not have the benefit of Descamps— misapplied the
modified categorical approach by “look[ing] behind
[Quintero-Junco’s] conviction in search of record evidence
that he actually committed the generic offense.” See id. at
2293. Specifically, the district court reviewed the transcript
of Quintero-Junco’s plea colloquy, which showed that
Quintero-Junco was accused of attempting forcibly to remove
a woman’s clothing in order to touch her breasts. The court
found by “clear and convincing evidence” that such conduct
constituted a forcible sex offense, and therefore a crime of
violence. Under Descamps, this approach was erroneous.
Rather than determining whether Quintero-Junco “actually”
committed the generic crime, the district court should have
instead analyzed whether the elements of the statutory prong
under which Quintero-Junco was convicted correspond to
those of the generic federal offense.
Nonetheless, the district court’s error was
inconsequential. As discussed above, the modified
categorical approach applies here because the Arizona statute
12 UNITED STATES V. QUINTERO-JUNCO
under which Quintero-Junco was convicted is divisible. And,
as discussed below, the elements of the statutory prong under
which Quintero-Junco was convicted categorically match the
elements of the generic definition of forcible sex offense.
Thus, even though the district court’s application of the
modified categorical approach was flawed, the court’s
ultimate conclusion was correct.
A proper application of the modified categorical
approach reveals that Quintero-Junco was convicted under
the first prong of the Arizona statute, which criminalizes
“intentionally or knowingly engaging in sexual contact with
any person who is fifteen or more years of age without
consent of that person.” ARS § 13-1404. Under Descamps,
courts applying the modified categorical approach are
permitted to look to the indictment to ascertain the statutory
alternative under which a defendant was convicted. See
Descamps, 133 S. Ct. at 2284. And here, the Arizona
indictment to which Quintero-Junco pleaded no contest
shows that the victim of the crime was fifteen or more years
of age and that she did not consent to any sexual contact.
The elements of the statutory prong under which
Quintero-Junco was convicted categorically match the
elements of the generic definition of forcible sex offense. In
2008, the United States Sentencing Commission modified the
definition of “forcible sex offense” to include those offenses
“where consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is involuntary,
incompetent, or coerced.” USSG § 2L1.2 cmt. n.1(B)(iii); see
also United States v. Gallegos-Galindo, 704 F.3d 1269, 1272
(9th Cir. 2013). After the 2008 amendment, “indicia of
additional force or violence [are] no longer required for the
[forcible sex offense] enhancement so long as consent to the
UNITED STATES V. QUINTERO-JUNCO 13
sex offense [is] shown to be lacking.” Gallegos-Galindo,
704 F.3d at 1272. Thus, under the amended Guidelines, a
forcible sex offense simply “requires a sexual act where
‘consent to the conduct’: (1) ‘is not given’; or (2) ‘is not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced.’” Caceres-Olla,
738 F.3d at 1054–55 (quoting USSG § 2L1.2 cmt.
n.1(B)(iii)).
Because the applicable prong of the Arizona statute
criminalizes non-consensual sexual contact with a person
over fifteen years of age, it fits comfortably within the broad
definition of forcible sex offense. Accordingly, the district
court properly determined that Quintero-Junco’s prior
conviction for attempted sexual abuse constitutes a forcible
sex offense, and the court did not err in applying an
enhancement under the Guidelines.
In arguing against this conclusion, Quintero-Junco
counters that his prior conviction does not constitute a
forcible sex offense because the Arizona statute under which
he was convicted does not have penetration as an element.
As Quintero-Junco observes, Arizona law defines “sexual
contact” to include not only penetration, but also “any direct
or indirect touching, fondling or manipulating of any part of
the genitals, anus or female breast.” ARS § 13-1401(2).
Thus, Quintero-Junco contends that the Arizona statute under
which he was convicted is not categorically a forcible sex
offense, as it also criminalizes what he characterizes as “non-
violent non-consensual indirect touching of an intimate area.”
According to Quintero-Junco, the term “forcible” would be
superfluous if such non-violent offenses constituted forcible
sex offenses. See United States v. Bolanos-Hernandez,
492 F.3d 1140, 1145 (9th Cir. 2007) (rejecting an
14 UNITED STATES V. QUINTERO-JUNCO
interpretation of the Guidelines that would “render any of its
provisions mere surplusage”). Quintero-Junco thus urges that
only offenses involving penetration constitute forcible sex
offenses.
Quintero-Junco’s argument is foreclosed by the plain
language of the 2008 amendment to the Guidelines and our
case law construing it. As discussed above, the 2008
amendment expanded the definition of forcible sex offense to
include offenses “where consent to the conduct is not given
or is not legally valid, such as where consent to the conduct
is involuntary, incompetent, or coerced.” USSG § 2L1.2 cmt.
n.1(B)(iii). Applying this language, we have explained that
the Guidelines now “include as a forcible sex offense any sex
offense involving the absence of the victim’s consent.”
Gallegos-Galindo, 704 F.3d at 1270 (emphasis added); see
also Caceres-Olla, 738 F.3d at 1054–55.
Contrary to Quintero-Junco’s assertion, Gallegos-Galindo
does not support his narrow interpretation of forcible sex
offense. In that case, we held that, following the 2008
amendment, “force beyond penetration” is not required for a
prior conviction to constitute a forcible sex offense. Id. at
1273. Relying on this language, Quintero-Junco argues that
Gallegos-Galindo implicitly suggests that all forcible sex
offenses must include penetration as an element. But we
explained in clear terms in Gallegos-Galindo that any sex
offense committed without the consent of the victim
constitutes a forcible sex offense. Id. at 1274. Thus,
Gallegos-Galindo provides no support for Quintero-Junco’s
UNITED STATES V. QUINTERO-JUNCO 15
contention that forcible sex offenses must have penetration as
an element.2
Our decision in Gallegos-Galindo is not an aberration.
To the contrary, several of our sister circuits have likewise
held that any sex offense involving a lack of consent is a
forcible sex offense. For example, the Eleventh Circuit
recently explained that “any nonconsensual sexual contact
will satisfy the guidelines definition of ‘forcible sex
offense.’” United States v. Contreras, 739 F.3d 592, 597
(11th Cir. 2014). While the Eleventh Circuit acknowledged
that “[i]t may seem odd that the term ‘forcible sexual
offenses’ is defined to include crimes that do not have
physical force as an element,” the court concluded that the
post-2008 definition “could hardly be any clearer” that lack
of consent is sufficient. Id. at 596. The Tenth Circuit has
similarly explained that “[w]hen an offense involves sexual
contact with another person, it is necessarily forcible when
that person does not consent.” United States v. Reyes-
Alfonso, 653 F.3d 1137, 1142 (10th Cir. 2011) (internal
quotation marks omitted). And the Fifth Circuit has held that
a conviction under a state statute prohibiting non-consensual
“touch[ing] of the victim’s intimate parts” constitutes a
forcible sex offense. United States v. Diaz-Corado, 648 F.3d
290, 293 (5th Cir. 2011). In urging us to read a penetration
2
Quintero-Junco cites no authority suggesting that only crimes
involving penetration constitute “sex offenses.” And the ordinary
meaning of “sex offense” is not so limited. For instance, we have
previously cited Black’s Law Dictionary for the proposition that “a ‘sexual
offense’ ‘involv[es] unlawful sexual conduct.’” Bolanos-Hernandez,
492 F.3d at 1144 (quoting Black’s Law Dictionary 1112 (8th ed. 2004)).
Similarly, 42 U.S.C. § 16911(5)(A)(i) defines “sex offense” as “a criminal
offense that has an element involving a sexual act or sexual contact with
another.”
16 UNITED STATES V. QUINTERO-JUNCO
requirement into the expanded definition of forcible sex
offense, Quintero-Junco not only asks us to depart from our
decision in Gallegos-Galindo, but also to part company with
our sister circuits. We decline to do so.
For these reasons, Quintero-Junco’s prior conviction
constitutes a forcible sex offense. The district court thus
correctly applied the “crime of violence” enhancement when
calculating Quintero-Junco’s Guidelines range.
CONCLUSION
The district court properly treated the Guidelines as its
starting point, and the court correctly concluded that
Quintero-Junco’s prior Arizona conviction for attempted
sexual abuse constitutes a forcible sex offense. Accordingly,
we affirm the judgment of the district court.
AFFIRMED.