USA v. Raul Zamorano-Ponce

Filing

FILED OPINION (ARTHUR L. ALARCON, SUSAN P. GRABER and MARSHA S. BERZON) AFFIRMED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8389521]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff - Appellee,
v.

No. 11-10462
D.C. No.
4:11-CR-01244CKJ-JCG-1

RAUL ZAMORANO -PONCE ,
Defendant - Appellant.

OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
September 14, 2012–San Francisco, California
Filed November 6, 2012
Before: Arthur L. Alarcón, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber

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SUMMARY*

Criminal Law
Affirming a sentence for illegal reentry after removal, the
panel held that a prior conviction for “rape of a child in the
third degree,” in violation of Revised Code of Washington
section 9A.44.079, categorically qualifies as “statutory rape,”
which is a “crime of violence” for the purpose of a sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

COUNSEL
Andrea L. Matheson, Matheson Law Firm, P.C., Tucson,
Arizona, for Defendant-Appellant.
Robert L. Miskell, Assistant United States Attorney, Tucson,
Arizona, for Plaintiff-Appellee.

OPINION
GRABER, Circuit Judge:
Defendant Raul Zamorano-Ponce appeals the sentence
imposed after he pleaded guilty to illegal reentry after
removal, in violation of 8 U.S.C. § 1326. The question before
us is whether a prior conviction for “rape of a child in the
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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third degree,” in violation of Revised Code of Washington
section 9A.44.079, qualifies as a “crime of violence” for the
purpose of the sentencing enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Reviewing de novo, United States v.
Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we
answer “yes” and, therefore, affirm the sentence.
In 2003, Defendant pleaded guilty in state court to “rape
of a child in the third degree,” in violation of Revised Code of
Washington section 9A.44.079. The state court sentenced
him to a 12-month term of imprisonment. After serving just
over half of the sentence, Defendant was released from prison
and removed from the United States.
In 2011, the United States Border Patrol apprehended
Defendant and several others a few miles from the United
States-Mexico border, near Lukeville, Arizona. The group
admitted to being Mexican citizens without documentation to
establish the legality of their presence in the United States.
A federal grand jury indicted Defendant for reentry after
removal, in violation of 8 U.S.C. § 1326. He pleaded guilty
pursuant to a written plea agreement.
The main issue at sentencing was whether the court
should apply a 16-level enhancement for a prior “crime of
violence,” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
Presentence Investigation Report and the government
recommended that the court apply the enhancement because
Defendant’s prior conviction under Revised Code of
Washington section 9A.44.079 qualifies categorically as a
“crime of violence.” Specifically, the government argued that
section 9A.44.079 falls squarely within the generic federal

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definition of “statutory rape.” Defendant objected to the
enhancement, arguing, among other things, that section
9A.44.079 is broader than the federal definition because it
does not require a mens rea of “knowingly.”
The district court concluded that violation of section
9A.44.079 qualifies categorically as a crime of violence.
Accordingly, the court applied the 16-level enhancement and
sentenced Defendant to 33 months’ imprisonment. He timely
appealed.
“Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing
Guidelines provides for a sixteen-level sentencing
enhancement upon conviction under 8 U.S.C. § 1326, where
an alien illegally reentered the United States after having been
previously deported subsequent to a conviction for a felony
‘crime of violence.’” United States v. Gomez-Mendez,
486 F.3d 599, 601 (9th Cir. 2007). Relying on the application
notes to the Guidelines, we have previously concluded that
statutory rape is a “crime of violence.”1 Id. at 601–02; United

1

The relevant application note states:
“Crime of violence” means any of the following offenses
under federal, state, or local law: Murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses (including
where consent to the conduct is not given or is not legally valid,
such as where consent to the conduct is involuntary, incompetent,
or coerced), statutory rape, sexual abuse of a minor, robbery,
arson, extortion, extortionate extension of credit, burglary of a
dwelling, or any other offense under federal, state, or local law
that has as an element the use, attempted use, or threatened use
of physical force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).

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States v. Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir.
2007). The question here, then, is whether Defendant’s
conviction under Revised Code of Washington section
9A.44.079 constitutes “statutory rape” and is, therefore, a
“crime of violence” that subjects him to the sentencing
enhancement. Section 9A.44.079 states:
A person is guilty of rape of a child in the third
degree when the person has sexual intercourse with
another who is at least fourteen years old but less than
sixteen years old and not married to the perpetrator
and the perpetrator is at least forty-eight months older
than the victim.
“To determine whether a conviction constitutes ‘statutory
rape’ and therefore a ‘crime of violence,’ we employ the
familiar categorical approach the Supreme Court crafted in
Taylor v. United States, 495 U.S. 575 (1990).” GomezMendez, 486 F.3d at 602.
Under the categorical approach, we do not look to the
specific conduct that was the basis of a defendant’s
state convictions. Instead, we consider the statutory
definition of the crime. A state’s definition of [the
crime] must be compared with the generic definition
of that crime to determine if the defendant’s
conviction is a crime of violence pursuant to the
Sentencing Guidelines.
Rodriguez-Guzman, 506 F.3d at 743–44 (alteration in
original) (internal quotation marks omitted). “In cases
involving nontraditional offenses, as here, we must determine
whether the full scope of conduct proscribed by [Revised

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Code of Washington section 9A.44.079] falls within the
‘ordinary, contemporary, and common meaning’ of the term
‘statutory rape.’”2 Gomez-Mendez, 486 F.3d at 602 (footnote
omitted).
We have previously provided a generic federal definition
for “statutory rape” in the context of “crime[s] of violence”
under U.S.S.G. § 2L1.2. In Gomez-Mendez, 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.” 486 F.3d at 603. Shortly thereafter, we held
that “the term ‘minor’ in the context of a statutory rape law
means a person under sixteen years of age.” RodriguezGuzman, 506 F.3d at 745. Accordingly, under RodriguezGuzman, the generic federal definition of “statutory rape” is
unlawful sexual intercourse with a person under the age of 16.
The generic federal definition may also include a four-yearage-difference element. United States v. Gonzalez-Aparicio,
663 F.3d 419, 431 (9th Cir. 2011). We need not resolve the
latter issue here, however, because Revised Code of
Washington section 9A.44.079 contains a four-year-agedifference element and, thus, would not cover more conduct
than the federal definition even if the federal definition also
required a four-year age difference.
2

W e recognize that the panel in Rodriguez-Guzman questioned the
Gomez-Mendez panel’s categorization of statutory rape as a “nontraditional offense.” See Rodriguez-Guzman, 506 F.3d at 745 n.5. The
categorization of statutory rape as a traditional common law offense or a
nontraditional offense makes no difference here because it does not affect
the federal generic definition of statutory rape under Gomez-Mendez and
Rodriguez-Guzman. See id.

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Section 9A.44.079 qualifies categorically as “statutory
rape” under Rodriguez-Gomez’ generic federal definition of
that crime because the federal definition covers the “full
scope of the conduct” that the Washington statute prohibits.
Gomez-Mendez, 486 F.3d at 602. Both prohibit engaging in
unlawful sexual intercourse with a person under the age of 16,
where there is at least a four-year age difference between the
perpetrator and the victim, and the federal definition contains
no additional requirement that is absent from section
9A.44.079.
Defendant relies on Estrada-Espinoza v. Mukasey,
546 F.3d 1147 (9th Cir. 2008) (en banc), to argue that the
federal generic definition of “statutory rape” includes a mens
rea element of “knowingly.” Defendant’s reliance on
Estrada-Espinoza is misplaced. That case defined the term
“sexual abuse of a minor” for the purpose of considering
whether a prior conviction constituted an “aggravated felony”
under the Immigration and Nationality Act. Id. at 1150.
Nothing in Estrada-Espinoza purports to require that
“statutory rape,” within the meaning of the commentary to the
Guidelines, contain a mens rea element. Nor does the case
overrule or undermine Gomez-Mendez or Rodriguez-Guzman
in any other way. In fact, we have recognized previously that
Estrada-Espinoza “never discussed or even cited to our prior
‘statutory rape’ decisions in Gomez-Mendez and RodriguezGuzman.” Gonzalez-Aparicio, 663 F.3d at 432. Nor did
United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009),
change the definition of “statutory rape” within the meaning
of the Guidelines. Rather, as relevant here, it held only that
a state-court conviction for lewd and lascivious acts on a child
under 14 years old is still “sexual abuse of a minor” for

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sentencing purposes after Estrada-Espinoza. Medina-Villa,
567 F.3d at 509.
In summary, Defendant’s conviction under Revised Code
of Washington section 9A.44.079 qualifies categorically as
“statutory rape,” which is a “crime of violence” that subjects
him to a sentencing enhancement under U.S.S.G. § 2L1.2.
AFFIRMED.

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