PAEZ, Circuit Judge:
The opinion filed on October 7, 2013 and reported at 732 F.3d 971 is withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. It is replaced by the new opinion filed concurrently with this order.
With the withdrawal of the prior opinion, the Appellant's Petition for Panel Rehearing and Rehearing En Banc is denied as moot. A petition for rehearing may be filed in response to the new opinion as provided by Federal Rules of Appellate Procedure 35 and 40.
PAEZ, Circuit Judge:
Faustino Gomez appeals the district court's denial of his motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C. § 1326. Gomez argues that his underlying 2006 removal was invalid because the stipulated removal proceeding violated his right to due process and denied him an opportunity to seek voluntary departure. We hold that the removal was invalid for two independent reasons: (1) the stipulated removal proceeding violated Gomez's right to due process because he was denied his right to appeal the removal order, and (2) the Immigration Judge ("IJ") violated 8 C.F.R. § 1003.25(b) by finding Gomez's waiver of rights "voluntary, knowing, and intelligent" on the basis of an insufficient record. Nonetheless, we affirm Gomez's § 1326 conviction because the violations were harmless given that Gomez was ineligible for voluntary departure at the time of the 2006 proceeding.
Gomez also challenges the district court's imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a "crime of violence" as defined by United States Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii). We agree. We hold that § 13-1405, including the version for offenses against victims "under fifteen," does not categorically meet the generic definition of "sexual abuse of a minor" or of "statutory rape." After Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we no longer analyze a statute missing an element of a generic offense, as here, under the modified categorical approach. Thus, we vacate Gomez's sentence and remand for resentencing.
In January 2004, Gomez was indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen. Count one charged Gomez with
On January 17, 2006, the immigration authorities served Gomez, who was in Immigration and Customs Enforcement's ("ICE") custody, with a Notice to Appear ("NTA"). Gomez signed and returned a "request for prompt hearing." The NTA included the allegation that he had been convicted of the § 13-1405 offenses. ICE transferred Gomez to Eloy Detention Center where he received, on January 19, 2006, a revised NTA that omitted any reference to his past conviction. Gomez again signed a "request for prompt hearing." While Gomez was in a cell with other aliens, an immigration official read to them en masse a Stipulated Removal form in Spanish. Gomez does not remember whether he had a copy of the form when it was read to the group. After the en masse reading, Gomez met individually with an immigration officer who told Gomez that he could be removed immediately if he signed the form. Gomez claims that during the individual meeting, "the form was not reviewed again, and [he] did not read the form." The whole process lasted less than forty-five minutes. Gomez signed the preprinted form, which contained both English and Spanish statements waiving Gomez's rights to counsel, ¶ 4, to a hearing before an IJ, ¶ 5, to any form of relief (including voluntary departure), ¶ 8, and to appeal, ¶ 13. Without a hearing, the IJ issued a two paragraph decision and order on January 20, 2006, finding Gomez's uncounseled waiver of rights to be "voluntary, knowing, and intelligent." Gomez was removed to Mexico via Nogales, Arizona that same day.
On December 23, 2010, Gomez was arrested for driving under the influence of alcohol in Washington state. A day later, an ICE agent located Gomez in the Franklin County Jail in Washington. Gomez was indicted on January 11, 2011, for illegal reentry in violation of 8 U.S.C. § 1326.
The probation officer prepared a pre-sentence report ("PSR") and recommended a total offense level of twenty-two. The total offense level included a sixteen-level enhancement based on the probation officer's determination that Gomez had been previously deported after being convicted of a "crime of violence" as defined by U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR assigned Gomez six criminal history points, for a criminal history category of III, and a Guidelines sentencing range of fifty-one to sixty-three months imprisonment. Without the sixteen-level enhancement, the sentencing range for Gomez would likely have been ten to sixteen months. See United States Sentencing Commission Guidelines Manual, Sentencing Table (Nov. 1, 2010).
On September 8, 2011, the district court conducted a hearing on objections to the PSR. Gomez's primary objection was to the sixteen-level sentencing enhancement for his 2004 § 13-1405 conviction. Gomez argued that the conviction did not qualify as a "crime of violence" under the categorical or modified categorical approaches.
On September 15, 2011, the district court conducted a sentencing hearing. The district court acknowledged the PSR's recommended Guidelines sentencing range of fifty-one to sixty-three months, and found that Gomez's § 13-1405 conviction was "in fact categorically statutory rape," which is a "crime of violence" under § 2L1.2(b)(1)(A)(ii). The district court also conducted an alternative analysis, assuming that the generic definition of "statutory rape" included a four-year age differential, and found that Gomez satisfied this element because the court could consider Gomez's age at the time of the § 13-1405 conviction given that his date of birth appeared on the "judgement [sic] paperwork." Finally, the district court noted several reasons for imposing a below-Guidelines sentence. It also noted that it would likely have given the same sentence even if it erred in applying the sixteen-level enhancement. The district court then imposed a sentence of twenty-two months imprisonment and three years of supervised release.
We have jurisdiction to review a final judgment of the district court pursuant to 28 U.S.C. § 1291. "We review de novo a claim that a defect in a prior removal proceeding precludes reliance on the final removal order in a subsequent § 1326 proceeding." United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 322, 184 L.Ed.2d 190 (2012). "We review the district court's findings of fact for clear error. We may affirm a district court's denial of a motion to dismiss an indictment on any basis supported by the record." Id. (citation omitted).
"We review de novo the district court's interpretation of the Sentencing Guidelines," United States v. Rodriguez-Ocampo,
When an alien defendant is prosecuted for illegal reentry under 8 U.S.C. § 1326, he may not collaterally attack the underlying deportation order "unless the alien demonstrates" that:
8 U.S.C. § 1326(d); United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129-30 (9th Cir.2013). "An underlying removal order is `fundamentally unfair' if: `(1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.'" United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (alteration in original) (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998)).
A defendant can establish the first two prongs of § 1326(d) by showing that he was denied judicial review of his removal proceeding in violation of due process. See Reyes-Bonilla, 671 F.3d at 1043; Ubaldo-Figueroa, 364 F.3d at 1049-50. Due process requires that
United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (footnote omitted) (citations omitted); see also United States v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir.1993).
A defendant can also satisfy the first two prongs of § 1326(d) by showing that immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1084-85 (9th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1983, 182 L.Ed.2d 829 (2012). "[T]he Supreme Court has ruled that when Congress enacts a procedure, aliens are entitled to it." Id. (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.")); see also United States v. Ramos, 623 F.3d 672, 683 (9th Cir.2010) ("It is a well-known maxim that agencies must comply with their own regulations." (quoting Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir.1984)) (internal quotation marks omitted)).
Once a due process or a qualifying regulatory violation has been established, we evaluate the third prong of § 1326(d) (that the deportation order was "fundamentally
Here we conclude that Gomez's 2006 deportation was invalid for two independent reasons. First, Gomez was denied his right to appeal his removal order in violation of due process because immigration officials failed to obtain a knowing waiver of that right. Second, the IJ who ordered Gomez removed violated 8 C.F.R. § 1003.25(b) by finding that Gomez's waiver of his rights was "voluntary, knowing, and intelligent" when there was an insufficient factual basis for such a finding. However, we affirm the denial of Gomez's motion to dismiss the § 1326 conviction because he cannot show that he was prejudiced by these violations given that he was ineligible for any form of relief at the time of the 2006 proceeding.
Obtaining an invalid waiver of the right to appeal a deportation order violates due process. Lopez-Vasquez, 1 F.3d at 753-54 ("Although a deportee may waive his right to judicial review of his deportation order, that waiver must be considered and intelligent. Otherwise, the deportee is deprived of judicial review in violation of due process." (internal quotation marks omitted) (quoting Mendoza-Lopez, 481 U.S. at 837-38, 107 S.Ct. 2148)). Thus, although "an alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order," United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000), "[a] valid waiver of the right to appeal `must be both considered and intelligent,'" Ramos, 623 F.3d at 680 (quoting Arrieta, 224 F.3d at 1079) (additional internal quotation marks omitted).
The first two prongs of § 1326(d) are satisfied if the right to appeal was denied in violation of due process. See Reyes-Bonilla, 671 F.3d at 1043 ("If Reyes did not validly waive his right of appeal, the first two requirements under § 1326(d) will be satisfied."); Ubaldo-Figueroa, 364 F.3d at 1049-50; see also Gonzalez-Villalobos, 724 F.3d at 1130-31 & n. 7.
At the time of his removal proceeding, Gomez signed a Stipulated Removal form, printed in English and Spanish, waiving his right to appeal the deportation order. Gomez argues that because he contests the validity of his waiver, the government's reliance on that form — without more — is insufficient to prove by "clear and convincing evidence" that his waiver was valid. Guided by Ramos and Reyes-Bonilla, we agree.
The parties begin by debating who bears the burden of proving the validity of Gomez's waiver. Under the same circumstances as those in this case, we have said unmistakably that "[t]he government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceedings." Ramos, 623 F.3d at 680 (citing Lopez-Vasquez, 1 F.3d at 754-54); see also Reyes-Bonilla, 671
We find unavailing the government's argument that United States v. Medina, 236 F.3d 1028, 1030 (9th Cir.2001), is to the contrary. In Medina, the defendant argued that the government could not prove that he had in fact been deported without a tape recording of the deportation proceeding. Id. We noted that "the lawfulness of the prior deportation is not an element of the offense under § 1326." Id. (quoting United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996)) (internal quotation marks omitted). Thus, in establishing the fact of a prior deportation as an element of an illegal reentry offense, "[t]he government merely needs to prove that [the defendant] was in fact previously deported." Id. Gomez does not challenge the government's ability to prove that he was in fact deported. Rather, Gomez argues under a separate provision of the statute — § 1326(d) — that his deportation was invalid. In spelling out the elements of an illegal reentry offense in Medina, we did not silently overrule our prior precedent holding that "[t]he government bears the burden of proving the waiver." Lopez-Vasquez, 1 F.3d at 754 (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ("[I]t [is] incumbent upon the State to prove an intentional relinquishment or abandonment of a known right or privilege." (internal quotation marks omitted))).
As Ramos emphasized, this court should "`indulge every reasonable presumption against waiver,'" and should "`not presume acquiescence in the loss of fundamental rights.'" 623 F.3d at 680 (quoting Lopez-Vasquez, 1 F.3d at 75[4]); see also Reyes-Bonilla, 671 F.3d at 1044. We carefully abide by this principle, especially where an uncounseled individual purportedly waived his right to appeal.
Where an alien defendant (1) was represented by counsel at his deportation proceeding and (2) did not allege facts undermining the validity of his waiver, we held that the government met its initial burden of proving a valid waiver by introducing an official immigration record. United States v. Galicia-Gonzalez, 997 F.2d 602, 603-04 (9th Cir.1993). We stated that "where the government introduces official records which on their face show a valid waiver of rights in connection with a deportation proceeding, the burden shifts to the defendant to come forward with evidence tending to prove the waiver was invalid." Id. at 604. There, Galicia-Gonzalez's counsel signed a waiver of rights form "along with a declaration that she fully explained the contents of the agreement to him and that he entered it with full knowledge." Id. at 603. And Galicia-Gonzalez did "not even allege[] there was anything wrong with his deportation, i.e., that his rights were improperly explained or that he was coerced into waiving them. The government's prima facie showing thus stands unchallenged and this satisfies the government's burden of showing a valid deportation for purposes of section 1326." Id. at 604.
Galicia-Gonzalez is not controlling here for two independent reasons: (1) Gomez was not represented by counsel at his removal
The circumstances underlying the stipulated deportation in Ramos are strikingly similar to the circumstances here. Like Ramos, Gomez was unrepresented and, like Ramos, was deported pursuant to a stipulated removal proceeding at the Eloy, Arizona detention facility. See Ramos, 623 F.3d at 677. Ramos signed the same stipulation as Gomez. The preprinted stipulation form contains both English and Spanish statements that waive the alien's rights to counsel, ¶ 4, to a hearing before an IJ, ¶ 5, to any form of relief (including voluntary departure), ¶ 8, and to appeal, ¶ 13. In Ramos, we described the process for stipulated removal proceedings at Eloy:
Id. at 678. This description is consistent with the record in this case, in particular Gomez's sworn declaration.
In Ramos, we described the testimony of the immigration officer who met individually with Ramos after the en masse reading, and we noted her limited Spanish language skills. 623 F.3d at 678-79. We concluded that "Ramos's waiver of his
We are not persuaded by the government's argument that Ramos relied on the incompetence of the immigration officer's individual translation. This argument improperly shifts the burden to the alien defendant to prove an incompetent explanation of the alien's rights; however, the burden to prove a competent explanation, and thus valid waiver, rests with the government. "We cannot conclude that waiver of rights, including the right to appeal, was `considered or intelligent' without evidence that a detainee was `able to understand the questions posed to him' when put to the choice of foregoing all rights or remaining in detention until he could appear before an IJ." Ramos, 623 F.3d at 681 (emphasis added) (citing Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000)). The fact that Ramos signed a stipulation indicating his understanding and waiver, and that the IJ found his waiver to be "voluntary, knowing, and intelligent," id. at 679, was insufficient to meet the government's burden of proof; and the government offers nothing more here. See also Reyes-Bonilla, 671 F.3d at 1044-45 (concluding that the government failed to meet its burden of proving a valid waiver where the evidence was "unclear" as to whether the immigration officer explained to Reyes "in a language he could understand" his right to appeal and there was "no evidence as to the extent of the explanation given or [the immigration officer's] ability to communicate in Spanish").
Thus, we see no reason to distinguish Ramos. If anything, there is more evidence here that Gomez had difficulty understanding the stipulated removal proceeding. Gomez stated in his declaration that he filed in the district court that he has difficulty reading Spanish, that he did not understand the stipulated proceeding, and that he received the same sort of en masse reading of the stipulation as Ramos. Gomez also stated that the immigration officer did not review the Stipulated Removal form with him during his individual meeting with the officer. The government has presented no evidence — other than the signed form — that Gomez was provided with a competent translation when he signed it. As we held in Ramos, due process requires that an alien be provided an individual explanation that is competently translated "when he sign[s] the form" above and beyond an en masse explanation. 623 F.3d at 680.
Moreover, shifting the burden to Gomez to prove an incompetent translation would skew the government's incentives and create an insurmountable hurdle for alien defendants. In Ramos, the government produced the immigration officer at a hearing only to have the court find that her translation had been inadequate. As here, the government may not always be able to produce the immigration officer; or she may be otherwise unavailable. Thus, it is not realistic to expect the defendant to produce the officer. Furthermore, if the government can stand silent and merely rely on the signed stipulation as sufficiently "clear and convincing" evidence, then it would have no incentive to produce an immigration officer witness.
In sum, we hold that the stipulated removal proceeding at Eloy violated Gomez's right to due process by obtaining an invalid waiver of Gomez's right to appeal the deportation order. The government has not met its burden of proving by "clear and convincing evidence" that Gomez validly waived his right to that appeal.
Gomez also argues that his deportation was invalid because the IJ violated 8 C.F.R. § 1003.25(b) by finding that Gomez's waiver of rights was "voluntary, knowing, and intelligent" without a sufficient factual record.
Here, on January 19, 2006, Gomez signed the revised Notice to Appear requesting a prompt hearing before an IJ. On the same day, he signed the Stipulated Removal form waiving, inter alia, the right to a hearing before an IJ. Without a hearing, and only on the basis of Gomez's signed Stipulated Removal form, the IJ found Gomez's "waiver to be voluntary, knowing, and intelligent." The IJ then found, "upon review of the charging document and the written stipulation that he is removable based upon clear and convincing
We do not read Ramos to require an actual appearance by every alien before an IJ, a possibility that the district court considered here. Rather, as the district court also discussed, 8 C.F.R. § 1003.25(b) can be read to contain two disjunctive provisions:
8 C.F.R. § 1003.25(b). In other words, we could read the second provision to rebut the first: where an alien is unrepresented, the IJ's duty to determine the waiver's validity supercedes the IJ's ability to do so without a hearing. However, we need not decide that issue. Rather, as Gomez points out, there are several other avenues that immigration officials could pursue to create a sufficient factual record without conducting a hearing. For example, the government could provide a written declaration by the immigration officer of the circumstances surrounding the alien's waiver, stating that avenues of relief were discussed and that the officer provided a competently translated, individualized explanation of the rights the alien waived.
Here, we conclude that the procedures followed in removing Gomez violated 8 C.F.R. § 1003.25(b) because the IJ could not have found that Gomez's waiver was "voluntary, knowing, and intelligent" based on the evidence before him, and thus violated 8 C.F.R. § 1003.25(b). See Ramos, 623 F.3d at 683.
Therefore, on the basis of both his invalid waiver of the right to appeal the deportation order and the IJ's regulatory violation, Gomez has met the requirements of 8 U.S.C. § 1326(d)(1)-(2) to attack collaterally the validity of his 2006 deportation. We next turn to whether Gomez was prejudiced by these violations.
As discussed supra, in a collateral attack on the validity of a deportation order the defendant bears the burden of proving prejudice under § 1326(d)(3). See Medina, 236 F.3d at 1032. To establish prejudice in this context, the defendant must show that it was "plausible" that he would have received some form of relief from removal had his rights not been violated in the removal proceedings. See Arrieta, 224 F.3d at 1079. "In order to demonstrate prejudice, [an alien] would also have to show that he is not barred from receiving relief. If he is barred from receiving relief, his claim is not `plausible.'" United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir.2003).
Gomez argues that he was prejudiced by the due process and regulatory
Under § 1229c, an alien is generally eligible for voluntary departure so long as he has not been convicted of an "aggravated felony" rendering him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), and is not deportable for reasons of national security under 8 U.S.C. § 1227(a)(4). Id. § 1229c(b)(1)(C). The "aggravated felony" definition is set forth in 8 U.S.C. § 1101(a)(43) and includes "sexual abuse of a minor," id. § 1101(a)(43)(A), and "an attempt... to commit an offense described in this paragraph," id. § 1101(a)(43)(U).
Aside from a narrow exception not presented here,
Therefore, we must decide whether Gomez's conviction for "attempted sexual conduct with a minor under the age of 15" in violation of Arizona Revised Statute section 13-1405 qualified as an "aggravated felony," 8 U.S.C. § 1101(a)(43), at the time he was ordered deported in January 2006.
Vidal-Mendoza, 705 F.3d at 1019 (second and third alterations in original).
The Board of Immigration Appeals ("BIA") precedent also guides our conclusion. In In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A.1999), the BIA broadly defined "sexual abuse of a minor" to exceed the definitions set forth in various federal criminal statutes, so as to include abuse that did not involve actual contact. Id. at 995-96. In so holding, the BIA looked to 18 U.S.C. § 3509(a) (1994) (setting forth the rights of child victims and witnesses), which "defines `sexual abuse' as `the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.'" Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)). The BIA did not set forth a threshold age at which such conduct would constitute "abuse," although § 3509(a)(2) defines "child" as "a person who is under the age of 18."
Most tellingly, in April 2006 — just three months after Gomez's deportation — we relied on In re Rodriguez-Rodriguez to affirm the BIA's holding that sexual intercourse with a 17-year-old constituted "sexual abuse of a minor" as defined by § 1101(a)(43)(A). Afridi v. Gonzales, 442 F.3d 1212, 1214-17 (9th Cir.2006), overruled by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc) (per curiam), abrogated by Descamps, 133 S.Ct. 2276.
Id. (first and second alterations in original).
Construing the two statutory provisions together, see supra note 13, Gomez's statute of conviction contains three elements: (1) a mens rea of "intentionally or knowingly"; (2) an act of "engaging in sexual intercourse or oral sexual contact"; and (3) a victim "who is under fifteen years of age." Ariz.Rev.Stat. § 13-1405. Although the case law that existed in 2006 did not explicitly enumerate the elements of "sexual abuse of a minor," these three elements were sufficient to fall categorically within the then-existing BIA and Ninth Circuit definition. The "sexual intercourse or oral sexual contact" element of § 13-1405 clearly constitutes "sexually explicit conduct." See In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 995. And a victim under fifteen years of age fits squarely within the definition of "minor." Id. at 995-97; Afridi, 442 F.3d at 1217. Under the logic of In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 995-96, and Pereira-Salmeron, 337 F.3d at 1155, such conduct with a victim under fifteen years of age constituted "abuse" at the time.
Thus, under the governing case law at the time of his deportation, Gomez's crime would have categorically qualified as "sexual abuse of a minor" for the purposes of 8 U.S.C. § 1101(a)(43)(A), and he would not have been eligible for voluntary departure. Because Gomez was not prejudiced by the due process and regulatory violations that occurred in his 2006 removal proceeding, we affirm the district court's denial of his motion to dismiss.
We next determine whether, under current law, Gomez's § 13-1405 conviction constitutes a "crime of violence" within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because our case law has evolved since 2006, we reach the opposite conclusion from what we concluded in analyzing the prejudice inquiry. That is, we hold that Arizona Revised Statute section 13-1405 (including the "under fifteen" version) is not categorically a "crime of violence" because it is missing an element of the generic offenses of sexual abuse of a minor and statutory rape, and the district court's finding to the contrary was reversible error. Thus, we vacate Gomez's sentence and remand for resentencing.
The United States Sentencing Guidelines provide for a sixteen-level enhancement where the defendant was previously deported after a conviction for "a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary defines "crime of violence" as "any of the following offenses under federal, state, or local law: ... statutory rape, [or] sexual abuse of a minor." Id. cmt. 1(B)(iii).
We begin by analyzing Gomez's conviction under the familiar categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, we look only to the elements of Gomez's statute of conviction, and not the particular facts underlying his conviction. 495 U.S. at 600, 110 S.Ct. 2143.
We turn first to the generic definition of "sexual abuse of a minor." Three related lines of cases compel us to conclude that the statute, even including the "under fifteen" version, is missing an element of "sexual abuse of a minor." First, in a unanimous en banc opinion considering whether a conviction constitutes the aggravated felony "sexual abuse of a minor" as set forth in 8 U.S.C. § 1101(a)(43)(A), we defined the generic offense of "sexual abuse of a minor" as requiring "four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor." Estrada-Espinoza, 546 F.3d at 1152, 1156; see also 18 U.S.C. § 2243.
Third, in addressing the "under eighteen" version of the statute, we have expressly determined that convictions under Arizona Revised Statutes section 13-1405 meet neither the generic definition of "sexual abuse of a minor" set forth in Estrada-Espinoza nor the generic definition of "abuse of a minor" set forth in Medina-Villa. Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010). A conviction under this statute does not meet the definition set forth in Estrada-Espinoza "for two reasons: (1) it lacks the age difference requirement; and (2) is broader than the generic offense with respect to the age of the minor because the statute applies to persons under eighteen years of age." Id. at 702. Here, analyzing the "under fifteen" version of § 13-1405, the statute continues to lack the age difference element. "Section 13-1405 also does not meet the generic definition of `sexual abuse of a minor' under the Medina-Villa framework as it lacks the element of `abuse.'" Id. Again, analyzing the "under fifteen" version, the statute continues to lack the element of "abuse" because the statute may apply to victims who are not "younger than fourteen years." Valencia-Barragan, 608 F.3d at 1107; see also Pelayo-Garcia, 589 F.3d at 1015-16.
Arizona Revised Statutes section 13-1405 is also missing an element of the generic offense of statutory rape. Whether the generic offense of statutory rape has, as an element, a four-year age difference, is an issue of first impression. The development of our law in this area, as well as the statutory law of other jurisdictions, leads us to conclude that a four-year age difference is an element of the generic offense of statutory rape. Because § 13-1405, even the "under fifteen" version of the statute, is missing this element, a conviction under the statute is not categorically a crime of violence.
We first addressed the generic offense of statutory rape in United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir.2007). There, we held that "[t]he term `statutory rape' is 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. In Gomez-Mendez, we did not address what other elements, if any, comprised the generic offense of statutory rape.
In United States v. Gonzalez-Aparicio, 663 F.3d 419 (9th Cir.2011), we were faced with the same question presented here: whether a conviction under Arizona Revised Statutes section 13-1405 was categorically a crime of violence for the purposes of sentencing. Id. at 425-26. The district court held that it was, but did not specify whether the conviction was categorically a conviction for the generic offense of "statutory rape" or "sexual abuse of a minor." Id. at 423-24, 425. Gonzalez-Aparicio did not object below, but on appeal, he argued that the generic offense of statutory rape has, as one of the elements, a four-year age difference. Id. at 425-26. We recognized that Estrada-Espinoza's definition of "sexual abuse of a minor" might bear on the definition of generic statutory rape. See id. at 429-30. Ultimately, however, we declined to decide "whether-and how[-] Estrada-Espinoza should be applied in defining the generic crime of `statutory rape' under U.S.S.G. § 2L1.2(b)(1)(A)(ii)." Id. at 431. Acknowledging that "whether the generic federal definition of `statutory rape' includes a [four]-year age difference element" is a "difficult issue," we also declined to resolve that question. Id. Instead, we held that any error that may have been committed by the district court in imposing the sixteen-level crime of violence sentencing enhancement was not plain error. Id. at 432.
Finally, in United States v. Zamorano-Ponce, 699 F.3d 1117, 1118 (9th Cir.2012), we again addressed the elements of the generic offense of statutory rape. Zamorano-Ponce argued that his conviction was not categorically a conviction for the generic offense of statutory rape because the statute of conviction did not include a mens rea element of "knowingly," relying on Estrada-Espinoza. Zamorano-Ponce, 699 F.3d at 1120. We rejected this argument, explaining:
Id. (internal quotation marks and citations omitted). Having rejected the argument that Estrada-Espinoza sets forth the elements of the generic offense of statutory rape, we held, based on Gomez-Mendez and Rodriguez-Guzman, that generic statutory rape does not have, as an element, a
We now answer that question in the affirmative. In reaching this conclusion, we follow the approach we took in Rodriguez-Guzman, looking to the Model Penal Code, federal law, and state statutory rape laws to determine whether statutory rape, in the generic sense, includes a four-year age difference. See 506 F.3d at 745; see also Estrada-Espinoza, 546 F.3d at 1152 ("In the absence of specific congressional guidance as to the elements of a crime, courts have been left to determine the generic sense in which the term is now used in the criminal codes of most States." (internal quotation marks and citation omitted)).
The Model Penal Code's statutory rape provision, entitled "Corruption of Minors and Seduction," requires a four-year age difference between the victim and the perpetrator. Model Penal Code § 213.3(1)(a). It provides that:
Id.; see also Rodriguez-Guzman, 506 F.3d at 745. Likewise, the federal statute that most closely matches generic statutory rape, 18 U.S.C. § 2243(a), see Rodriguez-Guzman, 506 F.3d at 745, also includes a four-year age difference.
Furthermore, a substantial number of state statutes now include at least a four-year age difference in their statutory rape laws.
We recognize that thirty-five states have at least one provision criminalizing sexual intercourse with minors that includes no age difference element whatsoever.
To summarize, the elements of generic statutory rape are: (1) sexual intercourse (2) with a minor under the age of sixteen (3) who is at least four years younger than the defendant. Generic statutory rape does not have, as an element, a mens rea requirement of "knowingly." Arizona Revised Statutes section 13-1405 is missing the four-year age difference element of the generic offense of statutory rape.
Therefore, Arizona Revised Statute section 13-1405, even the "under fifteen" version, is missing an element of generic "statutory rape" and generic "sexual abuse of a minor." Thus, a conviction under the statute is not categorically a conviction for a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because the statute is missing an element of these generic crimes, our inquiry ends here — we do not undertake a modified categorical analysis. Descamps, 133 S.Ct. at 2283, 2292 (holding that the modified categorical approach does not apply to statutes that contain an "`indivisible' set of elements sweeping more broadly than the corresponding generic offense," meaning that "the statute of conviction has an overbroad or missing element"). "Because of the mismatch in elements, a person convicted under [such a] statute is never convicted of the generic crime." Id. at 2292.
We also reject the government's argument that the sentencing error was harmless. In imposing the sentence, the district court stated:
The district court did not actually calculate the sentence it would have imposed absent the enhancement and imposed a sentence that was above the Guidelines range absent the enhancement. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n. 5 (9th Cir.2011) (noting that a Guidelines calculation error may be harmless if one of four nonexhaustive factors is satisfied, including if the district court "chooses a within-Guidelines sentence that falls within ... the correct Guidelines range"); see also United States v. Acosta-Chavez, 727 F.3d 903, 909-10 (9th Cir.2013).
In sum, we hold that the IJ violated an immigration regulation designed to protect an alien's right to judicial review and that Gomez was denied due process in his 2006
We have recognized that "the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (`IIRIRA') amended the immigration statutes so as to eliminate the previous legal distinction between deportation, removal and exclusion, merging all of these proceedings into a broader category entitled `removal proceedings.'" United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999) (footnote omitted) (citing United States v. Pantin, 155 F.3d 91, 92 (2d Cir. 1998)). We refer to Gomez's "removal" proceedings, though we note that 8 U.S.C. § 1326(d) and other cases we cite sometimes refer to "deportation" proceedings. "[A]ny distinction between deportation and removal is legally insignificant for purposes of § 1326." Id. at 935.
Vidal-Mendoza, 705 F.3d at 1017-18. This situation is not presented here. Rather, as in Vidal-Mendoza and Lopez-Velasquez, "the post-removal precedent ... created a new, previously unavailable, possibility of relief by making a `deviation' from `longstanding Ninth Circuit and BIA precedent.'" Vidal-Mendoza, 705 F.3d at 1018 (quoting Lopez-Velasquez, 629 F.3d at 898). We evaluate this new precedent with respect to Gomez's sentencing arguments, infra at III.B.
