Sanchez-Avalos, et al v. Holder

Filing

FILED OPINION (M. MARGARET MCKEOWN, RICHARD R. CLIFTON and JAY S. BYBEE) GRANTED;, Judge: RRC Authoring, Judge: JSB Dissenting. FILED AND ENTERED JUDGMENT. [8308292]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO SANCHEZ-AVALOS,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.





No. 07-74437
Agency No.
A026-340-635
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 21, 2012—San Francisco, California
Filed September 4, 2012
Before: M. Margaret McKeown, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Bybee

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COUNSEL
Michael K. Mehr (argued), Rachael Keast, Law Office of
Michael K. Mehr, 100 Doyle St., Suite A, Santa Cruz, California, for the petitioner.
Tony West, Michelle E. Latour, Jennifer J. Keeney (argued),
U.S. Department of Justice, Civil Division, Office of Immi-

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gration Litigation, P.O. Box 878, Ben Franklin Station, Washington, D.C. for the respondent.

OPINION
CLIFTON, Circuit Judge:
Fernando Sanchez-Avalos (“Sanchez”) petitions for review
of the BIA’s decision that he is not eligible for waiver of inadmissability because he was convicted of an aggravated felony.
See Immigration and Nationality Act (“INA”) § 212(h), codified at 8 U.S.C. § 1182(h). Sanchez argues that his conviction
for sexual battery under California Penal Code § 243.4(a) did
not qualify as sexual abuse of a minor. We apply the categorical and modified categorical approaches first described by the
Supreme Court in Taylor v. United States, 495 U.S. 575
(1990), and recently clarified by this court in United States v.
Aguila-Montes de Oca, 655 F.3d 915 (2011) (en banc). We
conclude that the crime of sexual battery under California law
is categorically broader than the federal generic crime of
“sexual abuse of a minor” because the California crime may
be committed against a victim of any age, while the federal
generic offense requires proof that the victim was a minor.
We also conclude that none of the evidence we are permitted
to consider under the modified categorical approach establishes that Sanchez’s victim was a minor. We therefore grant
the petition and remand the matter to the BIA.
I.

Background

Sanchez is a Mexican citizen. He entered the U.S. in 1977
and has been a lawful permanent resident since 1986. In 1997,
California charged Sanchez with six counts of child molestation and child rape and one count of sexual battery of arousal
under California Penal Code § 243.4(a). The latter is a crime
that may be committed against a minor or an adult.

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In addition to alleging the required elements of sexual battery, the information filed against Sanchez identified the victim as “Jane Doe, date of birth 02/16/1984.” If the date of
birth was correct, Sanchez’s victim was thirteen at the time of
the crime. Sanchez entered into a plea agreement with the
state under which Sanchez pled no contest to the sexual battery count and the other counts were dismissed.
In 2004, Sanchez traveled to Mexico. Upon his return to the
United States, the Department of Homeland Security paroled
petitioner into this country for deferred inspection. It later
revoked that parole and began removal proceedings. The
Department alleged that Sanchez was convicted of acts which
constituted the essential elements of a crime involving moral
turpitude and was therefore inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). The Immigration Judge sustained the
charge of inadmissibility.
Sanchez applied for a discretionary waiver of inadmissability under INA § 212(h). After an evidentiary hearing, the
Immigration Judge denied Sanchez’s waiver request. He
stated two alternate grounds for his decision. First, he concluded Sanchez was not eligible for § 212(h) relief because
Sanchez’s sexual battery conviction qualified as “sexual
abuse of a minor,” an aggravated felony. See 8 U.S.C.
§§ 1101(a)(43)(A), 1182(h). Second, he determined that even
if Sanchez were eligible, Sanchez failed to show “exceptional
or extremely unusual hardship” to a qualifying relative under
the heightened standard applicable to aliens who have committed a violent crime. See 8 C.F.R. § 1212.7.
Sanchez appealed the Immigration Judge’s denial of a
§ 212(h) waiver. The Board affirmed the conclusion that
under the modified categorical approach, Sanchez was convicted of an aggravated felony and was therefore ineligible for
§ 212 waiver. It did not review the alternative decision to
deny discretionary relief on the ground that Petitioner did not
show hardship. Sanchez filed a petition for review.

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II.

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Discussion

We review de novo whether a petitioner’s prior conviction
qualified as conviction for an aggravated felony under the
INA. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7
(9th Cir. 2009) (en banc). We conclude that Sanchez’s conviction did not. We must therefore grant Sanchez’s petition.
[1] INA § 212(h) provides the Attorney General discretion
to waive the inadmissibility of certain aliens if the alien establishes that inadmissibility would cause hardship to a family
member who is a United States citizen or lawful resident. 8
U.S.C. § 1182(h)(1)(B). Certain categories of aliens (including Sanchez) are not eligible for this waiver if “the alien has
been convicted of an aggravated felony.” 8 U.S.C. § 1182(h).
“[S]exual abuse of a minor” is an aggravated felony. 8 U.S.C.
§ 1101(a)(43)(A).
We employ a two-part analysis to determine whether a
prior conviction qualifies as an “aggravated felony.” AguilaMontes, 655 F.3d at 918. The first step is the application of
the categorical approach. Id. at 920. We compare the statute
of conviction to the list of aggravated felonies in 8 U.S.C.
§ 1101(a)(43). Id. If the statute of conviction required proof
of all the elements of one of the federal generic offenses on
that list, then the conviction was for an aggravated felony. Id.
If not, we apply the modified categorical approach. Id. The
modified categorical approach allows us to look beyond the
statute of conviction to determine whether the facts proven at
trial or admitted by the defendant as part of his guilty plea
establish that the defendant was convicted of all the elements
of the relevant federal generic offense. Id. at 921; see also
Taylor, 495 U.S. at 602; Shepard v. United States, 544 U.S.
13, 26 (2005).
There are two limitations on our application of the modified categorical approach. First, we may only rely on facts
contained in a limited universe of judicial documents, such as

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“ ‘the indictment or information and jury instructions’ . . . or,
if a guilty plea is at issue . . . the plea agreement, plea colloquy or ‘some comparable judicial record’ of the factual basis
for the plea.” Nijhawan v. Holder, 557 U.S. 29, 35 (2009)
(quoting Taylor, 495 U.S. at 602 and Shepard, 544 U.S. at
26); see also Aguila-Montes, 655 F.3d at 921.1
Second, and of greater relevance to this case, we may only
take into account facts on which the defendant’s conviction
“necessarily rested.” Aguila-Montes, 655 F.3d at 937. The
Supreme Court articulated this limitation in Taylor, in which
it held that courts may only look beyond the relevant statutory
text in “the narrow range of cases in which the indictment or
information and the jury instructions actually required the
jury to find all of the elements of generic burglary.” 495 U.S.
at 602 (emphasis added). The Court referred to the limitation
again in Shepard, in which it said that the relevant inquiry
was “whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic
offense.” Shepard, 544 U.S. at 26 (emphasis added). In
Aguila-Montes, we used a hypothetical example to further
explain what it means for a factual allegation to be “necessary” to conviction:
It is not enough that an indictment merely allege a
certain fact or that the defendant admit to a fact; the
fact must be necessary to convicting that defendant.
....
Let us return to our example in which the generic
1

In Nijhawan, the Supreme Court recognized that Congress described
some aggravated felonies in language that demands “circumstancespecific” analysis, not categorical or modified categorical analysis. 557
U.S. at 36. However, the Court noted that Congress described “sexual
abuse of a minor” with categorical language, so Nijhawan does not permit
circumstance-specific analysis in this case. Id.

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aggravated assault offense requires (1) harmful contact and (2) use of a gun, whereas the statute of conviction requires only harmful contact. Under our
reading of the modified categorical approach, if the
Shepard documents establish that the defendant satisfied the harmful contact with a gun, then the factfinder was “actually required” to find the defendant
used a gun, and the conviction “necessarily rested”
on this fact. In such a situation, the defendant has
every incentive to demonstrate that he did not use a
gun. . . . [I]f the jury convicts the defendant, then we
may be confident that the jury determined that he
used a gun, because such a determination was necessary given the government’s theory of guilt.
655 F.3d at 937-38 (emphasis added; citation omitted).2
[2] There is a categorical mismatch between sexual battery
under California Penal Code § 243.4(a) and the federal
generic offense of sexual abuse of a minor. A state crime
may qualify as the federal generic offense of “sexual
abuse of a minor” if: (1) the conduct prohibited by
the criminal statute is sexual, (2) the statute protects
a minor, and (3) the statute requires abuse. A criminal statute includes the element of “abuse” if it
expressly prohibits conduct that causes “physical or
psychological harm in light of the age of the victim
in question.”
Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009)
2

The rule we described in Aguila-Montes is consistent with our decision
in other cases that “a plea of guilty admits only the elements of the charge
necessary for a conviction.” Malta-Espinoza v. Gonzales, 478 F.3d 1080,
1083 n. 3 (9th Cir. 2007). Accord United States v. Forrester, 616 F.3d
929, 945 (9th Cir. 2010); United States v. Cazares, 121 F.3d 1241, 1247
(9th Cir. 1997).

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(internal citations omitted; emphasis added); see also United
States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999);
United States v. Medina-Villa, 567 F.3d 507, 515 (9th Cir.
2009).3 California Penal Code § 243.4(a) criminalizes
“touch[ing] an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice,
. . . if the touching is against the will of the person touched
and is for the purpose of sexual arousal, sexual gratification,
or sexual abuse.” (emphasis added). The federal generic
offense protects only minors, whereas the California statute
protects all persons regardless of age. This means that the fact
of Sanchez’s conviction, without more, did not establish that
he was convicted of sexual abuse of a minor for the purposes
of the INA. See Aguila Montes, 655 F.3d at 920.
[3] We must therefore apply the modified categorical
approach, looking beyond the fact of conviction to whether
the judicial records show that Sanchez was convicted of sexually battering a minor. We conclude that they do not.
[4] The information charged that Sanchez
On or about MARCH 20, 1997 . . . did willfully and
unlawfully touch an intimate part of another person,
to wit, JANE DOE, date of birth 2/16/1984 and that
the touching was against the will of the person
touched and was done for the specific purpose of
sexual arousal, sexual gratification or sexual abuse.
The transcript of Sanchez’s plea colloquy shows that Petitioner pled no contest4 to that count. Together, these two doc3
In Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008)
(en banc), overruled on other grounds by Aguila-Montes, 655 F.3d at 928,
we gave a slightly different definition for generic “sexual abuse of a
minor.” We compare state statutory rape crimes to the Estrada-Espinoza
definition and state non-statutory rape crimes to the Pelayo-Garcia definition. Pelayo-Garcia, 589 F.3d 1010, 1013-14.
4
“The legal effect of such a plea, to a crime punishable as a felony, shall
be the same as that of a plea of guilty for all purposes.” Cal. Pen. Code
§ 1016.

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uments suggest that Sanchez admitted that his victim was
thirteen.
[5] The date of birth allegation, however, is not within the
reach of modified categorical analysis because it was not a
fact on which Sanchez’s conviction “necessarily rested.” See
Aguila-Montes, 655 F.3d at 937. In the Aguila-Montes hypothetical, “gun use” was not a required element of the crime,
but it was nevertheless “necessary,” in the sense that the state
could not prove the required harmful contact element without
also showing that the defendant used a gun. 955 F.3d at 93638. In Petitioner’s case, by contrast, the government could
prove sexual battery without proving the age of Sanchez’s
victim. The state had to prove the existence of an identified
victim, but it could do that without proving the victim’s age.
To extend the Aguila-Montes hypothetical, the victim’s age
was no more necessary to conviction for sexual battery than
the make or color of a gun is to conviction for “harmful contact.”
The government argues that the state could have intended
to use the fact that the victim was too young to consent to sexual activity to prove the element that the touching was against
the will of the person touched. See People v. Smith, 120 Cal.
Rptr. 3d 52, 58 (Cal. Ct. App. 2011) (“the phrase ‘against the
will of the person touched’ connotes lack of consent” (quoting
California Penal Code § 243.4(e)(1)); People v. Young, 235
Cal. Rptr. 361, 366 (Cal. Ct. App. 1987) (in rape cases, the
government can prove the element of lack of consent by
showing that the victim was too immature to consent). As the
government conceded at oral argument, however, the state
could also have proven the “unwanted” element in other
ways, such as by showing that Sanchez used physical force.
The information and plea colloquy do not disclose which of
these alternate theories of “unwantedness” was admitted by
Sanchez, so we cannot assume that the date of birth allegation
was necessary to his conviction.

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The dissenting opinion contends, at 10522-23, that the age
of the victim was a “necessary” fact for another reason,
because it was needed to give the defendant notice of the
identity of the victim, citing to People v. Christian, 35 P.
1043, 1045 (Cal. 1894), overruled on other grounds by People
v. Look, 76 P. 1028 (Cal. 1904). In that dusty case, the California Supreme Court reversed a defendant’s conviction for
assault with a deadly weapon because he was tried on a complaint that alleged he assaulted one George Magin but was
convicted at trial for assaulting someone named George Massino. Id. at 1043. The reversal was based on the unremarkable
proposition that the defendant must be notified “of the particular offense for which he stands committed.” Id. But Sanchez
pled guilty. In doing so he acknowledged the existence of a
victim, and the accuracy of her description in the charging
document was not at issue. See People v. Griggs, 265 Cal
Rptr. 53, 57-58 (Cal. App. 1989) (Christian does not generally require “the naming of the particular victim,” but applies
only “in a due process context” where the defendant lacks
notice of the crime charged). That her name was not actually
“Jane Doe” did not vitiate the effectiveness of his plea or do
anything to make her date of birth “necessary” to the conviction. Sanchez was guilty of the crime of sexual battery
whether the victim was thirteen or thirty.
It may seem unfortunate that the law requires us to blind
ourselves to persuasive evidence that Sanchez’s victim was
thirteen. This type of evidentiary limitation is, however, a
characteristic feature of the categorical approach and its modified categorical variant, which we are required to apply. The
Supreme Court has identified at least three reasons why that
approach is to be followed. First, we must “respect[ ] Congress’s adoption of a categorical criterion” for aggravated felonies. Shepard, 544 U.S at 20. In Shepard, the Supreme Court
concluded that the categorical language Congress employed
in the Armed Career Criminal Act, 18 U.S.C. § 924(e), was
inconsistent with “subsequent evidentiary enquiries into the
factual basis for the earlier conviction.” Id. In Nijhawan, the

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Court held that the “sexual abuse of a minor” category in 8
U.S.C. § 1101(a)(43)(A) also “must refer to [a] generic
crime[ ].” Nijhawan, 557 U.S. at 36. See also Kawashima v.
Holder, ___ U.S. ___, 132 S. Ct. 1166, 1172 (2012) (the
“fraud or deceit” category in 8 U.S.C. § 1101(a)(43)(M)(i)
also requires categorical analysis).
Second, the evidentiary limitations are necessary to
“avoid[ ] . . . collateral trials” on the previous conviction.
Shepard, 544 U.S. at 23; see also Taylor, 348 F.3d at 601.
The “ ‘evil Taylor sought to prevent’ ” was the specter of
“turn[ing] . . . sentencing hearings into mini-trials.” ReinaRodriguez v. United States, 655 F.3d 1182, 1192 (9th Cir.
2011) (quoting United States v. Franklin, 235 F.3d 1165,
1170 (9th Cir. 2000)). This practical concern is no less serious
in the immigration context.
Finally, limitations on the reach of modified categorical
analysis are necessary to protect defendants from procedural
unfairness. Shepard, 544 U.S. at 20 (noting the “unfairness”
of allowing factual inquiries into the nature of previous convictions). As we recognized in Aguila-Montes,
[w]here a particular fact is not an element of the statute of conviction . . . the defendant has no reason to
believe it will be relevant to his conviction, and thus
no reason to cast doubt on the government’s evidence as to that fact. Even if the defendant has overwhelming evidence contradicting the government’s
assertion as to the non-elemental fact, presenting it
to the jury would be a waste of time and probably
excluded as irrelevant.
655 F.3d at 938 (internal quotation marks, alterations, and
citations removed).
The dissenting opinion argues, as did the government, that
the evidentiary limitations recognized in Taylor, Shepard, and

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Aguila-Montes should not apply here because of potential sentencing consequences. Sanchez should have been motivated to
contest the victim’s age, the dissent asserts, at 10523-24,
because of the possible impact on the sentence to be imposed
on him. But that argument again disregards the context of a
guilty plea. Specifically, it presumes that in imposing the sentence the sentencing court would only know what was contained in the charging document and the defendant’s plea —
something we can safely assume would not have been the
case. If the reported date of birth of the victim were stated
incorrectly in the information, that fact could have been communicated to the sentencing court in a number of ways,
including by a presentencing report or a separate statement by
the parties. Sanchez would still be guilty of the crime of sexual battery, so a guilty plea to that count would still have been
in order. Moreover, even if Sanchez would have been motivated to contest the victim’s stated date of birth, the threat of
such collateral consequences is not enough to place the age
allegation on the same footing as allegations that were “necessary” to conviction. If it turned out that there was a typo in
the information and the victim was actually 18, Sanchez
would have been no less guilty of sexual battery. Indeed, that
possibility, though unlikely, would be consistent with the
record before us.
Moreover, Sanchez pled guilty to the sexual battery charge
in exchange for the dismissal of all of the child- and minorspecific charges against him. He may have expected that this
deal would spare him from the consequences of conviction for
a child sex crime. To conclude that we may nevertheless
penalize him based on the date of birth allegation would risk
undoing the bargain he struck with the state prosecutor. Cf.
Taylor, 495 U.S. at 601-02 (“if a guilty plea to a lesser . . .
offense was the result of a plea bargain, it would seem unfair
to impose a sentence enhancement as if the defendant had
pleaded guilty to [the more serious offense]”). And even if we
were to agree that the fairness concerns discussed in AguilaMontes did not apply in this case, we would still not be free

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to disregard the Supreme Court’s conclusion that the text of
the INA demands categorical analysis. Nijhawan, 557 U.S. at
36; Shepard, 544 U.S at 20.
[6] The dissent attempts, at 10523-24, to infer from the
terms of probation actually imposed upon Sanchez a conclusion that the victim here must have been a minor. That
approach is simply inconsistent with the categorical approach.
The “modified” categorical approach lets us look at additional
documents, but only to identify facts “necessary” to a conviction. It does not permit us to speculate as to what we think the
facts underlying a conviction probably were.
III.

Conclusion

We must therefore grant Sanchez’s petition and remand to
the BIA for further proceedings, including its review, if
appropriate, of the IJ’s decision not to exercise discretion in
favor of Sanchez.
PETITION FOR REVIEW GRANTED; REMANDED
FOR FURTHER PROCEEDINGS.

BYBEE, Circuit Judge, dissenting in part:
In 1997, Fernando Sanchez-Avalos pled no contest to
“willfully and unlawfully touch[ing] an intimate part of
another person, to wit, JANE DOE, date of birth 02/16/1984,”
to gratify his sexual desires. He received a three-year suspended sentence, subject to terms of probation, including not
being in the presence of children under sixteen years of age.
Reading this record, the Immigration Judge (“IJ”) reasonably
concluded that Sanchez had committed a crime against a
thirteen-year-old that qualified as “sexual abuse of a minor,”
8 U.S.C. § 1101(a)(43)(A), which rendered him inadmissible

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under § 1182(a)(2)(A)(i)(I) and ineligible for a waiver under
§ 1182(h). The BIA affirmed.
The majority overturns the BIA’s judgment because the
majority can’t be sure “whether the judicial records show that
Sanchez was convicted of sexually battering a minor.” Maj.
Op. at 10515. I disagree with the majority that we may not
consider the age of the victim when that fact was recited in
the indictment, was the only information that actually identified the underage Jane Doe victim, and was admitted by Sanchez when he pled no contest. There is no reason to engage
in such formalism. Unfortunately, this case is another in a
series of cases that threatens to gut the modified categorical
approach by requiring us to ignore facts “plain on the record
before us.” Aguilar-Turcios v. Holder, ___ F.3d ___, 2012
WL 3326618, at *12 (9th Cir. Aug. 15, 2012) (Bybee, J., dissenting). I respectfully dissent and would deny the petition.1
I
In United States v. Aguila-Montes de Oca, we noted that in
certain circumstances, “applying the modified categorical
approach to the missing element situation is ‘unfair to defendants because it denies them notice and a reasonable opportunity to rebut the charges against them.’ ” 655 F.3d 915, 938
(9th Cir. 2011) (en banc) (quoting Li v. Ashcroft, 389 F.3d
892, 900 (9th Cir. 2004) (Kozinski, J., concurring)). We
addressed this concern by clarifying that the application of the
modified categorical approach is “circumscribed” by “an
important limitation.” Id. at 937, 938. That is, “a court must
exercise caution in determining what facts a conviction ‘necessarily rested’ on.” Id. at 937. We held that “[i]t is not
enough that an indictment merely allege a certain fact or that
the defendant admit to a fact; the fact must be necessary to
1

I agree with the majority that a conviction for sexual battery under California Penal Code § 243.4(a) is not categorically an aggravated felony
under 8 U.S.C. § 1101(a)(43).

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convicting that defendant.” Id. What “ensures that the defendant will have understood and had an opportunity to contest
all facts which are necessary to his conviction” is “the fact
that we may only rely on a narrow and defined range of
documents—the indictment, jury instructions, judicial findings, plea agreements, plea colloquies, and the like.” Id. at
938.
I do not believe that this “important limitation” governs the
current case, because I am persuaded that the fact of the victim’s age—which was listed in the indictment—was “necessary” to the conviction. Indeed, the victim’s age was the only
identifying information in the indictment. The indictment
does not refer to the victim by name, but instead refers to
“JANE DOE” and gives her date of birth. In California, a
defendant’s guilty plea admits “all allegations and factors
comprising the charge contained in the pleading.” People v.
Palacios, 56 Cal. App. 4th 252, 257 (1997) (internal quotation
marks omitted).
Put simply, the inclusion of the date of birth in the indictment was not superfluous. In California, an indictment is sufficient if it includes a statement of the offense “in any words
sufficient to give the accused notice of the offense of which
he is accused.” Cal. Penal Code § 952. Because a victim is
self-evidently a necessary element of the crime of sexual battery, Cal. Penal Code § 243.4(a), identifying the victim in
some fashion appears to be important in order to put the
accused on notice of the offense charged. Here, where the
prosecutor identified the victim only as “Jane Doe”—
presumably to protect the identity of a child-victim—the date
of birth further identified the victim for Sanchez. Whether or
not Sanchez even knew the victim’s birth date, it served to
identify her as a thirteen-year-old girl, giving Sanchez and his
attorney notice as to who the state believed the victim to be.
If Sanchez had any reason to doubt what the state relayed, he
had a full and fair opportunity to contest it.

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Furthermore, the identity of the victim was a “necessary”
fact to support Sanchez’s conviction. In People v. Christian,
the California Supreme Court vacated a conviction for assault
with a deadly weapon because the indictment had misidentified the victim. 35 P. 1043, 1043, 1045 (Cal. 1894), overruled
in part on other grounds by People v. Look, 76 P. 1028 (Cal.
1904). The court explained that “[t]he name of the party
assaulted is a material element of the offense, and common
justice to the defendant demands that he be notified of the
particular offense for which he stands committed.” Id. at
1043. This principle has frequently been distinguished where
a defendant has constructive notice of the victim’s identity.
See, e.g., People v. Griggs, 265 Cal. Rptr. 53, 58 (Ct. App.
1989) (“There was no confusion here of what act defendant
was tried and convicted.”). Nonetheless, it remains true that
the state must give the defendant some notice—actual or
constructive—of the identity of the victim he or she has allegedly harmed, at least for crimes that require a specific victim.
See id. (“Due process is not offended in this type of unusual
situation [firing a gun into a crowd of people] where a particular victim is not identified.”). A violation of California Penal
Code § 243.4(a) is clearly such a crime. Thus, the date of
birth of the victim was not “irrelevant” to the crime charged.
II
I also disagree with the majority that the policy behind
Aguila’s “important limitation” does not apply in this case. In
Aguila, we acknowledged a concern inherent in applying the
modified categorical approach to take into account facts the
defendant may have had no incentive to contest, either
because disputing the fact would have been a waste of time
and resources, or because evidence to the contrary could have
been excluded as irrelevant. 655 F.3d at 938. Sanchez had
every incentive to contest the victim’s age. Although Jane
Doe’s age may not have been a separate element of the
offense under the specific statute he pled guilty to violating,
it was plainly relevant to the sentence Sanchez would receive.

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The record indicates that he served three years of felony probation. The terms of that probation included that Sanchez
“[n]ot be in the presence of children 16 yrs of age or younger
unless another responsible adult is present,” and “[n]ot possess . . . matter which depicts youth for the purposes of arousing prurient interests.” It strains credulity to believe Sanchez
had no incentive to contest such terms, especially when he
had a daughter under the age of sixteen at the time.
It is not clear whether these are standard or mandatory
terms of probation in California for defendants convicted of
sex crimes, regardless of the age of the victim. However,
these conditions are not included on the form itself, but were
specially typed onto the standard probation order for this case.
This indicates, in my view, that the conditions were in fact not
standard. Moreover, if Sanchez had not been convicted of a
sex crime involving an underage victim, these conditions of
probation may very well have been invalid under California
law. A condition of probation is unlawful if it “has no relationship to the crime of which the offender was convicted.”
People v. Lent, 541 P.2d 545, 548 (Cal. 1975). Thus, the fact
of the victim’s age was certainly relevant to Sanchez’s terms
of probation, which he had to live under for three years.
The problem that we confront in this case may be confined
to plea agreements in advance of trial, a problem we did not
squarely address in Aguila. See also Aguilar-Turcios v.
Holder, ___ F.3d ___, 2012 WL 3326618, at *18 (9th Cir.
Aug. 15, 2012) (Bybee, J., dissenting) (suggesting that ignoring admissions at the plea colloquy is “the equivalent of willful blindness to the facts”). In Aguila, we employed a
hypothetical throughout the opinion—one involving a state
statute of conviction that requires use of a weapon of some
kind, and a generic crime that requires the use of a gun. 655
F.3d at 926. As we addressed the question of what facts one
could glean from the Shepard documents, we focused on what
facts were necessary to the conviction in the context of the
prosecution’s “theory of the case.” Id. at 936-37. Relying on

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the “theory of the case,” of course, presupposes the presentation of the case to the jury. In the plea context, we will not
get the benefit of the theory of the case, except through the
indictment, plea colloquy, and judgment. Here, the prosecution’s theory of the case was that Sanchez abused a thirteenyear-old girl, a theory fully explained in the indictment. For
the reasons I have explained, I think Sanchez had ample reasons for contesting this fact had it been untrue. The age of the
victim was not only relevant to identify Jane Doe, it was also
relevant to what the prosecution would prove at trial—that
Sanchez committed the crime of sexual battery of arousal by
touching an intimate part of another person, Jane Doe, date of
birth 02/16/1984, against her will.
The majority’s formalism strikes me as a prophylactic,
wholly unnecessary to protect Sanchez’s rights under our
immigration laws. I have elsewhere questioned whether our
application of the modified categorical approach has been too
strict in the immigration context. Aguilar-Turcios v. Holder,
___ F.3d ___, 2012 WL 3326618, at *20-21 (9th Cir. Aug.
15, 2012) (Bybee, J., dissenting). But even if we must treat
immigration cases with all the rigor of criminal cases, we are
simply ignoring facts staring us in the face.
I would deny the petition.