USA v. Israel Caceres-Olla

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, RICHARD A. PAEZ and MARSHA S. BERZON) VACATED; REMANDED. Judge: FFF Concurring, Judge: MSB Authoring. FILED AND ENTERED JUDGMENT. [8913342]

Case: 12-10132

12/23/2013

ID: 8913342

DktEntry: 76-2

Page: 1 of 1

FILED
United States v. Caceres-Olla, No. 12-10132

DEC 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FERNANDEZ, Circuit Judge, concurring:
I concur in the result, but not in all of the reasoning of the majority opinion.
I concur in part I and in the portion of part II before IIA First. As to part IIA First
(majority opinion at pages 7 to 8), I do not agree. The guideline definition
indicates that it applies to forcible sex offenses, which include those where
“consent . . . is not legally valid.” USSG §2L1.2, comment. (n.1(B)(iii)) (Nov.
2011). We have declared that minors are “legally incapable of consent.” Valencia
v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006); see also Estrada-Espinoza v.
Mukasey, 546 F.3d 1147, 1154 (9th Cir. 2008) (en banc). As I see it, if a child is
“legally incapable of consent,” that child’s “consent . . . is not legally valid,” and
no amount of judicial sortilege will make it so.
That said, I do agree with the discussion in parts IIA Second (majority
opinion at pages 8 to 10, insofar as it discusses statutory rape) and Third (majority
opinion at pages 10 to 11). Moreover, I agree with part IIB. See United States v.
Gomez, 732 F.3d 971, 987–89 (9th Cir. 2013). Finally, because the government
has conceded that it has no more evidence to produce, I agree with part III.
Thus, I respectfully concur in the result.