TASHIMA, Circuit Judge:

ORDER

Defendant-Appellant's petition for panel rehearing is granted. The Opinion, filed June 3, 2013, and reported at 718 F.3d 873, is withdrawn and replaced by the Amended Opinion and concurring and dissenting opinion filed concurrently with this Order. The petition for rehearing en banc is denied as moot. Further petitions for panel rehearing and/or rehearing en banc may be filed with respect to the Amended Opinion.

OPINION

Our original Opinion was filed on June 3, 2013. See United States v. Cabrera-Gutierrez, 718 F.3d 873 (9th Cir.2013). Shortly thereafter, on June 20, 2013, the Supreme Court decided Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which worked a substantial change in sentencing law. We therefore granted the petition for panel rehearing and withdrew our Opinion. We now affirm the conviction, but vacate the sentence and remand for resentencing.

Pedro Cabrera-Gutierrez ("Cabrera") appeals his conviction and sentence for failing to register under the Sex Offender Registration and Notification Act ("SORNA"). On appeal he advances two arguments. First, he contends that Congress lacked authority under the Commerce Clause to compel his registration as a sex offender. Second, he contends that the district court erred in sentencing him as a Tier III sex offender based on his prior conviction of second degree sexual abuse.1

We reject Cabrera's first argument, but agree with his second. We hold that Congress has authority under the Commerce Clause to compel Cabrera, a convicted sex offender who traveled interstate, to register under SORNA. But, following the Supreme Court's recent decision in Descamps, we hold that the district court erred when it applied the modified categorical approach in sentencing Cabrera as a Tier III sex offender. Descamps precludes application of the modified categorical approach in this case.

I.

Cabrera was born in Mexico and has been removed from the United States several times. In 1998, Cabrera was convicted in Oregon of second degree sexual abuse. In his guilty plea statement, Cabrera admitted:

Cabrera was sentenced to 36 months' imprisonment and required to register as a sex offender. When Cabrera was released from custody in September 2000, he was advised of his responsibility to register as a sex offender under Oregon law and promptly removed to Mexico.

On February 3, 2012, Cabrera was arrested for a traffic violation in Yakima, Washington. He was subsequently charged with failing to register as a sex offender in violation of 18 U.S.C. § 2250. The indictment alleged that Cabrera was an individual who was required to register under SORNA, and having traveled in interstate commerce, did knowingly fail to register in violation of 18 U.S.C. § 2250. It further alleged that Cabrera failed to meet his registration obligation during the period February 3, 2011, through February 3, 2012.

Cabrera filed a motion to dismiss the indictment, arguing that Congress lacked authority to require him to register as a sex offender. The district court denied the motion, noting that although United States v. George, 625 F.3d 1124 (9th Cir. 2010), had been vacated, 672 F.3d 1126 (9th Cir.2012), "the Court finds the reasoning in George persuasive and notes that the opinion was vacated on different grounds." Thereafter, Cabrera entered a conditional plea of guilty, preserving his right to appeal the denial of his motion to dismiss.

The Pre-Sentence Investigation Report ("PSR") listed Cabrera's offense level as 16 under U.S.S.G. § 2A3.5(a)(1) because he was required to register as a Tier III sex offender. Cabrera objected to the PSR. He argued that his prior conviction only qualified him as a Tier I sex offender, not a Tier III offender, because his Oregon conviction was not comparable to, or more severe than, "aggravated sexual abuse or sexual abuse," as defined in 42 U.S.C. § 16911. The district court rejected this argument, noting that Cabrera's guilty plea admitted that the girl was intoxicated and fifteen years old. The court sentenced Cabrera to seventeen months' imprisonment and three years' supervised release. Cabrera timely appeals from his conviction and sentence.

II.

We review the district court's denial of Cabrera's motion to dismiss the indictment de novo. United States. v. Milovanovic, 678 F.3d 713, 719-20 (9th Cir. 2012) (en banc); United States v. Marks, 379 F.3d 1114, 1116 (9th Cir.2004).

SORNA requires sex offenders to, among other things, register their names, addresses, employment or school information, update that information, and appear in person at least once a year for verification of the information. 42 U.S.C. § 16901 et seq. These obligations, Cabrera asserts, are an unconstitutional regulation of his inactivity under the Supreme Court's recent opinion in National Federation of Independent Business v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Cabrera accepts that Congress has broad powers under the Commerce Clause, but points out that in Sebelius, the Court stated that "[c]onstruing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." Id. at 2587. Cabrera further argues that, unlike the Affordable Care Act at issue in Sebelius, SORNA has nothing to do with commerce. Its purpose is to "protect the public from sex offenders and offenders against children." 42 U.S.C. § 16901. He argues that this purpose, while laudable, is not an appropriate purpose under the Commerce Clause because public safety measures lie exclusively in the realm of the States.

In anticipation of the government's reliance on "an additional jurisdictional hook," such as travel across state lines, Cabrera argues that SORNA requires all sex offenders to register, regardless of travel, and that the duty to register under SORNA precedes any act of travel. Thus, he continues, "SORNA would hold an individual who fails to register, travels and then registers equally responsible as an individual who never registers, before or after travel." He argues, citing Sebelius, 132 S.Ct. at 2590, that "the proposition that Congress may dictate conduct of an individual today [i.e., registering as a sex offender] because of prophesied future activity [i.e., interstate travel] finds no support in [the applicable Commerce Clause] precedent." Cabrera concludes that because Congress lacks the power to require an individual to register as a sex offender, it follows that it cannot penalize him for failing to register, even if he has traveled in interstate commerce.

We are not persuaded. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court recognized Congress's "broad" power under the Commerce Clause to regulate: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce." Id. at 558-59, 115 S.Ct. 1624 (citations omitted). The government asserts that the requirement of interstate travel meets "the first two categories of Congress" Commerce Clause authority, because an interstate traveler is both a person "in interstate commerce" and one who uses the "channels of interstate commerce."

We held in George, 625 F.3d at 1130, vacated on other grounds, 672 F.3d 1126, that "Congress had the power under its broad commerce clause authority to enact the SORNA," and we now reaffirm that holding, which has been embraced by our fellow circuits. In George, we explained:

625 F.3d at 1129-30 (emendations, except in the last sentence, in the original).

George noted that, in addition to the Eighth Circuit, the Fourth, Fifth, Tenth, and Eleventh Circuits had upheld SORNA's constitutionality under the Commerce Clause.2 Id. at 1130. The Second Circuit has also affirmed the constitutionality of SORNA under the Commerce Clause.3 In at least two extant opinions, we have approvingly referenced George.4 Moreover, the Supreme Court's opinions in Reynolds v. United States, ___ U.S. ___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), and Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010), affirming but limiting SORNA, implicitly affirm SORNA's constitutionality.

We recognize, as Cabrera observes, that only SORNA's penalty provision, 18 U.S.C. § 2250, and not its registration provision, 42 U.S.C. § 16913, contains an interstate travel requirement. But we reject the significance of the distinction for several reasons. First, because Cabrera was charged and convicted of failing to register after having traveled in interstate commerce, it is questionable whether he may properly challenge the duty to register without interstate travel. More importantly, such a parsing of SORNA has been rejected by the Supreme Court and the circuit courts that have considered the issue. In Carr, the Court explained that "Section 2250 is not a stand-alone response to the problem of missing sex offenders; it is embedded in a broader statutory scheme enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks." 560 U.S. at 455, 130 S.Ct. 2229 (citation omitted). The Seventh Circuit explained the symbiotic relationship between the two sections in United States v. Sanders, 622 F.3d 779, 783 (7th Cir.2010), stating:

The Second, Fifth, Eighth, and Eleventh Circuits are in accord.5 Because SORNA's registration requirement is necessary to the effectuation of the broader SORNA scheme, we agree with our sister circuits6 in concluding that the Necessary and Proper Clause provided Congress ample authority to enact § 16913 and to punish a state sex offender who, like Cabrera, traveled interstate, for failing to register. Cf. United States v. Kebodeaux, ___ U.S. ___, 133 S.Ct. 2496, 2502-05, 186 L.Ed.2d 540 (2013) (holding that the Necessary and Proper Clause enabled SORNA's application to a pre-enactment federal offender); United States v. Elk Shoulder, 738 F.3d 948, 958-59 (9th Cir.2013) (same).

Finally, unlike Sebelius, SORNA does not regulate individuals "precisely because they are doing nothing." 132 S.Ct. at 2587. SORNA applies only to individuals who have been convicted of a sexual offense. Thus, registration is required only of those individuals who, through being criminally charged and convicted, have placed themselves in a category of persons who pose a specific danger to society. Moreover, SORNA's application to Cabrera is based on his further admitted activities of traveling in interstate commerce and then failing to register. Thus, SORNA does not punish the type of inactivity addressed in Sebelius.

In sum, agreeing with our sister circuits, we see no reason to depart from our previously expressed reasoning in George. We thus conclude that Congress had the authority to enact SORNA and that SORNA's application to Cabrera is constitutional.

III.

In considering Cabrera's challenge to his sentence, we review a district court's interpretation of the Sentencing Guidelines de novo, and its factual findings for clear error. United States v. Swank, 676 F.3d 919, 921 (9th Cir.2012); United States v. Laurienti, 611 F.3d 530, 551-52 (9th Cir. 2010).7

A.

As applied to Cabrera's situation, 42 U.S.C. § 16911(4) defines a "tier III sex offender" as "a sex offender whose offense is punishable by imprisonment for more than 1 year and ... is comparable to or more severe than ... aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18)."8 Section 2242 defines the crime of sexual abuse to include knowingly (1) causing another to engage in a sexual act "by threatening or placing that person in fear," or (2) engaging in a sexual act with another who is "(A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act."9

The Oregon statute under which Cabrera was convicted provided:

Or.Rev.Stat. § 163.425 (1998).

B.

Our task is to determine whether Cabrera's prior state conviction under § 163.425 may properly serve as a predicate for his classification as a Tier III sex offender under 42 U.S.C. § 16911(4). That is, we must decide whether the conviction is "comparable to or more severe than" the federal crime of sexual abuse.

In making this comparison, we follow the categorical approach established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), as recently refined in Descamps.10 Under that approach, a sentencing court must begin by comparing the statutory definition of the prior offense with the elements of the "generic" federal offense specified as a sentencing predicate. Descamps, 133 S.Ct. at 2283 (quoting Taylor, 495 U.S. at 599-600, 110 S.Ct. 2143). The prior conviction may operate as a predicate if it is defined more narrowly than, or has the same elements as, the generic federal crime. Id. If, however, the statute defining the prior offense "sweeps more broadly than the generic crime," the prior offense cannot serve as a statutory predicate. Id. Descamps affirms that the "key" to this comparison is "elements, not facts." Id. A sentencing court may not consult "extra-statutory materials," id. at 2287, "even if [the materials show that] the defendant actually committed the [predicate] offense in its generic form," id. at 2283. The crime's elements are all that is relevant. Id.

Applying the categorical approach, we conclude that the statute of Cabrera's conviction, Or.Rev.Stat. § 163.425, is broader than the federal crime of sexual abuse.11 The Oregon statute requires the subjection of another to certain types of sexual activity and "the victim does not consent thereto." Or.Rev.Stat. § 163.425(1). The statute's non-consent element applies broadly, both where a victim does not actually consent and where the victim lacks capacity to consent. See State v. Ofodrinwa, 353 Or. 507, 300 P.3d 154, 167 (2013) (en banc).

By contrast, the generic federal crime of sexual abuse requires that a defendant cause another to engage in a sexual act by certain types of threat or fear or to engage in a sexual act with a victim who is mentally or physically incapable. 18 U.S.C. § 2242. The Oregon statute, therefore, penalizes a broader class of behavior than the federal statute. Nonconsensual intercourse with a mentally and physically capable individual not involving a threat or the use of fear might violate Or.Rev.Stat. § 163.425, but it would not violate 18 U.S.C. § 2242.

Oregon and federal law also diverge on the age at which an individual gains legal capacity to consent to a sexual act. Compare Or.Rev.Stat. § 163.315 (stating that anyone under eighteen years of age is legally incapable of consent), with United States v. Acosta-Chavez, 727 F.3d 903, 908-09 (9th Cir.2013) (recognizing that federal law defines a minor as someone under sixteen years of age). Thus, sexual intercourse with a person under eighteen, but not under sixteen, would violate Or.Rev. Stat. § 163.425, but not necessarily 18 U.S.C. § 2242. In this respect also, § 163.425 sweeps more broadly than § 2242.

Because Or.Rev.Stat. § 163.425 "sweeps more broadly" than 18 U.S.C. § 2242, Cabrera's statute of conviction is not a categorical match to the federal crime of sexual abuse. Absent an exception to this categorical rule, Cabrera's prior conviction cannot serve as a predicate for his classification as a Tier III sex offender under 42 U.S.C. § 16911(4).

C.

The government contends that such an exception applies in this case. Taylor and Descamps recognize that, in a "narrow range of cases," courts may look beyond the statutory definition of a prior offense to certain other documents, including a defendant's plea agreement. Descamps, 133 S.Ct. at 2283-84 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Cabrera admitted in his plea statement that the victim of his crime was both intoxicated and a minor. The district court relied on those admissions in determining that Cabrera committed a crime "comparable to or more severe than" sexual abuse and that Cabrera qualified as a Tier III offender.

While our previous case law might have permitted the district court's approach — known as the "modified categorical approach" — in this case, we conclude that Descamps now forecloses it. Descamps clarifies that the modified categorical approach is available only when a defendant is convicted of violating a statute that sets out multiple, "divisible" elements. Id. at 2281, 2285. In such cases, the statute "effectively creates `several different... crimes'" pertaining to the possible combinations of alternative elements. Id. (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)). Thus, a sentencing court may consult certain extra-statutory materials to identify the defendant's actual crime of conviction and to compare the elements of that crime with the generic crime. Id. at 2284-85. Where, however, a statute states a single, indivisible set of elements, the modified categorical approach "has no role to play." Id. In such cases, the sentencing court need not — indeed, cannot — consult extra-statutory materials to determine "which crime formed the basis of the defendant's conviction," id. at 2284, because only the single set of indivisible elements could apply.

We hold that Or.Rev.Stat. § 163.425 is not divisible within the meaning of Descamps. The statute, by its terms, states only two elements: (1) the subjection of another to certain types of sexual activity and (2) non-consent. These elements are indivisible, not alternative; a conviction under § 163.425 requires that both elements are satisfied. As in Descamps, then, "[w]e know [Cabrera's] crime of conviction" — the subjection of another to intercourse without that person's consent — and the modified approach has "no role to play." Descamps, 133 S.Ct. at 2285-86.

In support of its position that § 163.425 states divisible elements, the government points to Or.Rev.Stat. § 163.315, which lists four types of legal incapacity to consent. Or.Rev.Stat. § 163.315 (1998) (stating that a person is incapable of consenting if that person is under eighteen years of age, mentally defective, mentally incapacitated, or physically helpless); see also United States v. Beltran-Munguia, 489 F.3d 1042, 1045 (9th Cir.2007). The government contends that the listing of "several alternative modes" of non-consent in Or.Rev.Stat. § 163.315 renders Or.Rev. Stat. § 163.425 divisible.

We reject the government's argument for the simple reason that Cabrera was convicted of violating § 163.425, not § 163.315. Even if § 163.315 establishes four "alternative modes" of proving lack of consent, none of these four modes need be proven in order to convict a defendant of second degree sexual abuse. A statute cannot state elements of a crime if none of those "elements" need apply to secure a conviction. See Beltran, 489 F.3d at 1045 ("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.'" (alteration and emphasis in original) (citing United States v. Hasan, 983 F.2d 150, 151 (9th Cir.1992) (per curiam))).

Neither the text of the statute nor Oregon case law supports the position that the phrase "does not consent" in § 163.425 is limited to the forms of non-consent delineated in § 163.315. Section 163.425 does not reference § 163.315, and no provision of the Oregon criminal code purports to define the phrase "does not consent." Contrary to the government's contention, § 163.315 is not a "definitional provision."12 As we have recognized elsewhere, § 163.315, entitled "Incapacity to consent," merely "delineates four types of legal incapacity that apply to all sexual offenses listed in the Oregon criminal code." Beltran, 489 F.3d at 1045. The "four types" are alternative avenues of proving non-consent in all cases. But they are not the exclusive means of doing so, including in cases of victims who do not lack capacity to consent.13 Indeed, it would be odd for the Oregon legislature to have defined § 163.425's non-consent requirement in § 163.315 without having so much as referenced § 163.315 or employed the same terminology in each.

Further, the government cites no support for its position that § 163.315 defines the non-consent element of § 163.425. To the contrary, Oregon appears routinely to charge and convict defendants of second degree sexual abuse without reference to any one of the four "alternative modes" contained in § 163.315.14 Oregon's model jury instructions listing the "elements" of second degree sexual abuse reflect that practice. See Or. Uniform Crim. Jury Instr. No. 1613 (omitting mention of § 163.315 or its four modes).

A recent decision of the Oregon Supreme Court further reinforces our reading of § 163.425. In Ofodrinwa, 300 P.3d 154, the court was confronted with the question of whether the phrase "does not consent" in § 163.425 refers "only to those instances in which [a] victim does not actually consent" or whether it also "includes instances in which the victim lacks the capacity to consent." Id. at 155. The fact that the Supreme Court had to ask whether legal incapacity can satisfy the "does not consent" requirement strongly suggests that that requirement neither naturally refers to nor is limited to legal incapacity. It would be odd, again, for the Oregon legislature to have defined "does not consent" by a provision entitled "Incapacity to consent," especially where nothing in § 163.315 clearly encompasses actual non-consent. We do not attribute to the Oregon legislature such an oddity. The most logical reading of the statute is that non-consent under § 163.425 is broader than the forms of non-consent specified in § 163.315. Thus, § 163.315 cannot state elements of second degree sexual abuse, because none needs to apply to sustain a conviction.

Finally, our dissenting colleague argues that § 163.425 is divisible because — as Ofodrinwa makes clear — the statute "covers the offense of sexual intercourse where the victim, although capable of consenting, does not consent, as well as the offense of sexual intercourse where the victim is incapable of consenting." Partial Dissent at 1141-42. But the fact that § 163.425 "covers" multiple means of commission, and that a separate provision of the Oregon code specifies one of those means (legal incapacity), does not render § 163.425 divisible. Indeed, Descamps rejects our dissenting colleague's approach almost exactly. Like the partial dissent, the lower court in Descamps defended application of the modified categorical approach based on the court's conclusion that the statute at issue in that case "create[d] an implied list of every means of commission," even though the statute did not explicitly state those means. Descamps, 133 S.Ct. at 2289 (alterations in original) (quoting United States v. Aguila-Montes de Oca, 655 F.3d 915, 927 (9th Cir.2011) (en banc)) (internal quotation marks omitted).15 Similarly, the dissent here argues that the phrase "does not consent" in § 163.425 is divisible because the phrase implicitly covers both actual non-consent and incapacity to consent. Descamps, however, rejects that approach because it would not "enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime." Id. at 2290. In other words, implied means of commission cannot render a statute divisible because, unlike with an explicitly divisible statute, they do not allow the sentencing court to home in on the defendant's actual crime of conviction; "[a]s long as the statute itself requires only an indeterminate [element]," like non-consent, "that is all the indictment must (or is likely to) allege and all the jury instructions must (or are likely to) mention." Id. To use this case's example, to convict a defendant under § 163.425, the state need prove only that a defendant has engaged in intercourse with another and that the other "does not consent thereto." In the general run of cases, then, a sentencing court cannot tell whether the jury or judge convicted a defendant of intercourse with a victim who did not actually consent or a victim who lacked capacity to consent. The partial dissent's approach thus creates just the problem that Descamps identified and that motivated the Court specifically to reject it. We also note that our dissenting colleague's approach would render every criminal statute divisible in which a separate provision of the criminal code specified one or more means of commission. We would hesitate before adopting a rule with such sweeping implications, even if Descamps did not already squarely foreclose it.16

In short, Cabrera's statute of conviction, Or.Rev.Stat. § 163.425, is not divisible. The statute states "a single, indivisible set of elements," and the modified categorical approach does not apply. Descamps, 133 S.Ct. at 2282; see also Acosta-Chavez, 727 F.3d at 909 (holding that where the state statute's age element is broader than the federal definition and "is not divisible ... we may not apply the modified categorical approach").

IV.

Cabrera, having been convicted in Oregon of the crime of second degree sexual abuse and having been ordered to register as a sex offender, chose to travel interstate and failed to register under SORNA. We conclude, as have our sister circuits, that Congress has the authority under the Commerce Clause to enact SORNA and to require Cabrera to register under SORNA as a sex offender.

The district court erred, however, in applying the modified categorical approach to determine that Cabrera qualified as a Tier III sex offender. Cabrera's prior conviction under Or.Rev.Stat. § 163.425 is categorically overbroad and cannot serve as a sentencing predicate under 42 U.S.C. § 16911(4). The government has made an inadequate showing of harmlessness.17 See Acosta-Chavez, 727 F.3d at 909 (recognizing that the government bears the burden of establishing harmlessness). Therefore, we vacate Cabrera's sentence and remand to the district court pursuant to 18 U.S.C. § 3742(f)(1) for resentencing proceedings consistent with this opinion.

CONVICTION AFFIRMED, SENTENCE VACATED and REMANDED FOR RESENTENCING.

CALLAHAN, Circuit Judge, concurring and dissenting:

I agree with my brethren that Congress had the authority to enact the Sex Offender Registration and Notification Act ("SORNA") and that SORNA's application to Pedro Cabrera-Gutierrez ("Cabrera") is constitutional. We part company, however, in our reading of the Supreme Court's opinion in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and its application to Cabrera's state conviction. Because I read the relevant Oregon statutes to be "divisible" as that term is defined by the Supreme Court in Descamps, I would affirm Cabrera's conviction and his sentence as a Tier III sex offender.

I

The federal statute that concerns Cabrera's situation is 42 U.S.C. § 16911(4) which defines a "tier III sex offender" as "a sex offender whose offense is punishable by imprisonment for more than 1 year and... is comparable to or more severe than... aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18)."1 Section 2242 defines the crime of sexual abuse to include knowingly engaging "in a sexual act with another person if that other person is — (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act."2

Two Oregon statutes govern Cabrera's prior conviction. He was convicted under Or.Rev.Stat. § 163.425 (1998), which states: "(1) A person commits the crime of sexual abuse in the second degree when that person subjects another person to sexual intercourse, deviate sexual intercourse... and the victim does not consent thereto." Or.Rev.Stat. § 163.425 (1998). In addition, Or.Rev.Stat. § 163.315 provides that "does not consent thereto" includes instances where "(1) 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." See State v. Ofodrinwa, 353 Or. 507, 300 P.3d 154 (2013) (en banc).

A careful reading of Ofodrinwa and the Oregon statutes reveals that the Oregon scheme is divisible and that Cabrera pled guilty to sexual assault as that term is defined in 18 U.S.C. § 2242.

II

Our task, as refined by the Supreme Court's opinion in Descamps, is to determine whether Cabrera's state conviction is a crime of sexual abuse as that term is defined in 18 U.S.C. § 2242. Following Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we first determine whether the state statute has the same elements as the generic federal crime or defines the crime more narrowly. Descamps, 133 S.Ct. at 2283. The Supreme Court held: "But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as a[] ... predicate [for the enhancement], even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts." Id.

Here, the Oregon statutory statute is broader than the federal crime of sexual abuse. The federal statute requires that the victim be incapable of appraising the nature of the conduct, of declining to participate, or communicating unwillingness. See 18 U.S.C. § 2242. But Or.Rev.Stat. § 163.315 requires only that the victim "does not consent." In addition, the Or. Rev.Stat. § 163.315 provides that anyone under 18 years of age is considered incapable of consenting to a sexual act. However, we have held that under federal law a minor is someone under the age of 16. See United States v. Acosta-Chavez, 727 F.3d 903, 908-09 (9th Cir.2013). Because Or. Rev.Stat. §§ 163.315 and 163.425 are broader than the definition of sexual abuse in 18 U.S.C. § 2242, we turn to the modified categorical approach.

In Descamps, the Supreme Court clarified that under the modified categorical approach, the focus is not on what the defendant did, but on "which statutory phrase was the basis for the conviction." Descamps, 133 S.Ct. at 2285 (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). The Court explained:

Id. (parallel citation omitted).

The Court's definition of divisible is shaped by its response to Justice Alito's dissent. Justice Alito wrote:

Id. at 2296. He then goes on to observe that the Court's decisions in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), Johnson, 559 U.S. 133, 130 S.Ct. 1265, and Taylor, 495 U.S. 575, 110 S.Ct. 2143, suggest a generous definition of divisible. He commented:

Id. at 2297. Justice Alito continued:

Id. at 2298.3

The Court responded to Justice Alito's concerns in its footnote 2.

Id. at 2298 n. 2 (parallel citations omitted).

Thus, in determining whether a state statute is divisible, we may take as our mark the Supreme Court's indication that the statutes in Shepard, which defined burglary to include entry of a building or a ship, and in Johnson, which defined battery as either a touching of a person against his will or intentionally causing bodily harm, were divisible.

III

Applying Descamps to Cabrera's case, we learn that although Or.Rev.Stat. § 163.425 is broader than 18 U.S.C. § 2242, the Oregon Supreme Court has interpreted § 163.425 as covering convictions based either on the victim's lack of consent or on the victim's incapacity to consent.

In Ofodrinwa, 300 P.3d 154, the Oregon Supreme Court ruled that "does not consent" as used in § 163.425 covers both lack of capacity to consent and lack of actual consent. Id. at 166. In Ofodrinwa, the defendant argued that "does not consent" in § 163.425 referred only to instances in which the victim does not actually consent. He asserted that there was no evidence that his victim had not consented, and that the victim's lack of capacity to consent was not sufficient to prove a violation of the statute. Id. at 155. The Oregon Supreme Court rejected that interpretation holding that the state could prove sexual abuse under § 163.425 either by showing the victim's lack of actual consent or by showing that the victim lacked the capacity to consent pursuant to Or.Rev.Stat. § 163.315. Id. at 167.

Thus, the Oregon statutory scheme is divisible as that term is defined in Descamps.4 Section 163.425 covers the offense of sexual intercourse where the victim, although capable of consenting, does not consent, as well as the offense of sexual intercourse where the victim is incapable of consenting. Furthermore, Or.Rev. Stat. § 163.315 provides for distinct definitions of incapable. The victim may be shown to be incapable because she is under the age of 18, mentally defective, mentally incapacitated, or physically helpless. Although under 18 years of age would not qualify for incapacity under 18 U.S.C. § 2242, the other grounds of incapacity are covered by § 2242.

In Shepard, 544 U.S. at 26, 125 S.Ct. 1254, the Supreme Court held that in determining whether a plea of guilty to a nongeneric statute necessarily admitted elements of the generic offense, a court's review "is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." See also Young v. Holder, 697 F.3d 976, 983 (9th Cir.2012) (en banc) ("we may review only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial record of this information").

Here, the district court had Cabrera's handwritten "Petition to Enter Plea of Guilty" to sexual abuse in the second degree. The petition states:

Thus, Cabrera freely admitted to violating Or.Rev.Stat. § 163.425 by having sexual intercourse with a victim who was mentally incapacitated as the term is defined in Or.Rev.Stat. § 163.315(1)(c).5

It is true that Cabrera also stated that his victim was a minor, and perhaps a conviction based solely on his violation of Or.Rev.Stat. § 163.315(1)(a) (lack of consent because victim was under 18 years of age), would not fit within the generic definition of sexual assault. However, Cabrera chose to first admit to his victim's actual incapacity to consent, a violation of a divisible portion of the state statutes that fall well within the federal definition of sexual abuse.6

Because: (1) Or.Rev.Stat. §§ 163.425 and 163.315 are divisible state statutes as that term is defined by the Supreme Court in Descamps; (2) Cabrera's guilty plea unquestionably shows that he pled guilty to sexual intercourse with a person who was mentally incapacitated, as that term is defined in Or.Rev.Stat. 163.315(1)(c); and (3) sexual intercourse with a person who was mentally incapacitated falls well within the generic definition of the crime of sexual abuse set forth in 18 U.S.C. § 2242, I would hold that the district court properly sentenced Cabrera as a Tier III sex offender.