USA v. Facundo Acosta-Chavez

Filing

FILED OPINION (A. WALLACE TASHIMA, JAY S. BYBEE and KIMBA M. WOOD) REVERSED AND REMANDED. Judge: KMW Authoring. FILED AND ENTERED JUDGMENT. [8742075]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-10324

v.

D.C. No.
4:11-cr-04125CKJ-DTF-1

FACUNDO ACOSTA-CHAVEZ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
June 13, 2013—San Francisco, California
Filed August 14, 2013
Before: A. Wallace Tashima and Jay S. Bybee, Circuit
Judges, and Kimba M. Wood, Senior District Judge.*
Opinion by Judge Wood

*

The Honorable Kimba M. Wood, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.

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UNITED STATES V. ACOSTA-CHAVEZ
SUMMARY**

Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court applied
a sixteen-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on the defendant’s prior Illinois
conviction for Aggravated Criminal Sexual Abuse.
The panel held that because the Illinois statute’s
definition of a minor is broader than that contained in its
generic federal analogue, a violation of 720 Ill. Comp.
Stat. 5/11-0.1 cannot qualify under the categorical approach
as a “forcible sex offense” supporting a crime-of-violence
enhancement under § 2L1.2(b)(1)(A)(ii).
Applying
Descamps v. United States, 133 S. Ct .2276 (2013), the panel
held that because the age element in the Illinois statute is not
divisible, the panel may not apply the modified categorical
approach.
The panel held that the error was not harmless, and
declined to remand the case to a different judge for
resentencing.

**

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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COUNSEL
David W. Basham, Law Office of David W. Basham, Tucson,
Arizona, for Defendant-Appellant.
Erica L. Seger, Assistant United States Attorney, United
States Attorney’s Office, Tucson, Arizona, for PlaintiffAppellee.

OPINION
WOOD, Senior District Judge:
Facundo Acosta-Chavez appeals his thirty-month
sentence of imprisonment for illegal reentry after deportation.
Acosta-Chavez contends that the district court erred in
deeming his 2005 Illinois conviction for Aggravated Criminal
Sexual Abuse a “crime of violence” under United States
Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), which mandates
a sixteen-level enhancement of his Sentencing Guidelines
level. Acosta-Chavez contends that the alleged error was not
harmless. He also seeks remand to a different district judge
for resentencing.
Applying the Supreme Court’s recent decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), we
conclude that the district court erred in holding AcostaChavez’s crime to be a “crime of violence,” an error that
resulted from the district court’s application of the modified
categorical approach when it compared the elements of
Acosta-Chavez’s offense with the elements of its federal
analogue. This error was not harmless. We vacate Acosta-

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Chavez’s sentence, and remand to the original district judge
for resentencing.
I
Following his 2005 guilty plea to Illinois Aggravated
Criminal Sexual Abuse, Acosta-Chavez was removed from
the country. He reentered illegally in 2011 and was arrested
in Arizona. On December 14, 2011, Acosta-Chavez was
indicted for illegal reentry after deportation, in violation of
8 U.S.C. § 1326(a). On March 28, 2012, he pled guilty
without a plea agreement.
At sentencing, the district court calculated the applicable
United States Sentencing Guidelines (“Guidelines”) range to
be forty-six to fifty-seven months. The court based this
determination on its conclusion that Acosta-Chavez’s 2005
Illinois conviction qualified as a “crime of violence,”
resulting in a sixteen-level enhancement. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The court held, however, that despite
the seriousness of Acosta-Chavez’s 2005 Illinois conviction,
the forty-six to fifty-seven month Guidelines range
“overstate[d] the nature of that particular conviction,” making
a below-Guidelines sentence more appropriate. After
evaluating the statutory sentencing factors, the court imposed
a sentence of thirty months imprisonment.
Acosta-Chavez’s 2005 Illinois conviction arose from
conduct that occurred in 2001. The Criminal Indictment,
filed in Illinois state court, charged that on February 20, 2001,
twenty-three year old Acosta-Chavez “knowingly committed
an act of sexual conduct with [the victim], who was at least
13 years of age but under 17 years of age, in that [AcostaChavez] placed his hand on the breast of [the victim] and

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[Acosta-Chavez] was at least five years older than [the
victim]” in violation of chapter 720, section 5/12-16(d) of the
Illinois Compiled Statutes.
This provision defines
Aggravated Criminal Sexual Abuse as “an act of sexual
penetration or sexual conduct with a victim who was at least
13 years of age but under 17 years of age and the accused was
at least 5 years older than the victim.” 720 Ill. Comp. Stat.
5/11-1.60. Illinois law defines “sexual conduct” as “any
intentional or knowing touching or fondling by the victim or
the accused, either directly or through clothing, of the sex
organs, anus or breast of the victim or the accused . . . for the
purpose of sexual gratification or arousal of the victim or the
accused.” 720 Ill. Comp. Stat. 5/11-0.1.1
On February 22, 2005, Acosta-Chavez, then age twentyseven, appeared in Illinois state court for a change of plea
hearing.2 At the hearing, Acosta-Chavez, represented by
counsel, pled guilty to Aggravated Criminal Sexual Abuse, in
violation of 720 Ill. Comp. Stat. 5/11-1.60(d). AcostaChavez confirmed that he understood the nature of the
charges and acknowledged that he had engaged in “physical
conduct with a young girl.” The prosecutor provided the
following factual basis for the plea:
Judge, if witnesses were called and exhibits
introduced, we would show that [the victim]

1

At the time of Acosta-Chavez’s conduct and indictment, sections 5/111.60(d) and 5/11.0.1, were numbered 5/12-16(d) and 5/12-12(e).
2

After initially pleading not guilty, Acosta-Chavez failed to appear and
a warrant was issued for his arrest. On January 10, 2005, U.S. Border
Patrol agents in Arizona detained Acosta-Chavez and extradited him to
Illinois.

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was born on January 31, 1987; we would
show [that Acosta-Chavez] was born on
November 27, 1977. We would show that
sometime around February 20, 2001, the
Defendant knowingly placed his hands on the
breasts of [the victim], and the Defendant was
more than five (5) years older than [the
victim] and he did this for purposes of sexual
arousal of himself and [the victim].

Defense counsel agreed with this statement of facts. The
Illinois court accepted this factual basis for the plea,
concluded that the plea was knowing and voluntary, and
imposed a sentence of three months imprisonment, to be
followed by three years probation. Acosta-Chavez was
subsequently removed from the country.
As noted, Acosta-Chavez was then re-arrested in 2011,
leading to his instant conviction for illegal reentry.
II
Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant
convicted of illegal reentry receives a sixteen-level
sentencing enhancement if the defendant “previously was
deported, or unlawfully remained in the United States, after
. . . a conviction for a felony that is . . . a crime of violence.”
There is no dispute that Acosta-Chavez was previously
deported. The Guidelines Commentary states that a “crime
of violence” includes any of the following offenses under
federal, state, or local law:
Murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses

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(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. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii)
(2012); see also United States v. Rodriguez-Guzman,
506 F.3d 738, 741 (9th Cir. 2007).
The Government argued before the district court that
Acosta-Chavez’s Illinois crime constituted a “crime of
violence” because it qualified as both “sexual abuse of a
minor” and a “forcible sex offense.” See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (2012). Acosta-Chavez objected. The district
court ultimately adopted the Government’s view, finding that
the offense was both sexual abuse of a minor and a forcible
sex offense.
On appeal, however, the Government abandons its
position that Acosta-Chavez’s Illinois offense constitutes
sexual abuse of a minor. Accordingly, the sole issue before
this Court is whether Acosta-Chavez’s Illinois offense should
be deemed a forcible sex offense and therefore a “crime a
violence.” This Court reviews this question de novo. United
States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009).

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III
A

In order to determine whether a crime qualifies as a
“crime of violence,” courts apply the framework established
in Taylor v. United States, 495 U.S. 575 (1990). Taylor
established a “formal categorical approach,” id. at 600,
whereby sentencing courts “compare the elements of the
statute of conviction with a federal definition of the crime to
determine whether conduct proscribed by the statute is
broader than the generic federal definition.” United States v.
Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010)
(internal quotation marks omitted). If the statute of
conviction “sweeps more broadly than the generic crime, a
conviction under that law cannot [categorically] count as [a
qualifying] predicate, even if the defendant actually
committed the offense in its generic form.” Descamps,
133 S. Ct. at 2283.
Where the categorical approach is not determinative, the
sentencing court may, in a “narrow range of cases,” apply a
“modified categorical approach.” See id. at 2283 (discussing
Taylor, 495 U.S. at 602). In Descamps, the Supreme Court
clarified the proper application of the modified categorical
approach.3 Before a sentencing court may use this approach,
it must first determine that the defendant was convicted of
violating a “divisible statute.” Id. at 2285 (emphasis added).
A “divisible statute,” the Court explained, is one that “sets out
one or more elements of the offense in the alternative” or

3

Descamps applies to this case because the Supreme Court issued its
decision while this case was “pending on direct review.” Griffith v.
Kentucky, 479 U.S. 314, 328 (1987).

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“comprises multiple, alternative versions of the crime.” Id.
at 2281, 2284. The modified categorical approach may be
used only when one of those alternatives is an element of the
generic offense, and another is not. In these narrow
circumstances, the sentencing court may “consult a limited
class of documents, such as indictments and jury instructions,
to determine which alternative formed the basis of the
defendant’s prior conviction.” Id. at 2281. “The court can
then do what the categorical approach demands: compare the
elements of the crime of conviction . . . with the elements of
the generic crime.” Id.
B
In order to apply either approach, we must ascertain the
generic federal definition of “forcible sex offense.” Although
we have never comprehensively defined this crime, we have
instructed that the term should be defined with reference to its
“ordinary, contemporary, and common meaning.” United
States v. Bolanos-Hernandez, 492 F.3d 1140, 1143–44 (9th
Cir. 2007). The parties’ arguments in this case focus on
whether Acosta-Chavez’s offense conduct qualifies as
“forcible.” The Government contends that sexual offenses
involving minors are inherently forcible because minors
cannot give “legally valid” consent. See U.S.S.G. § 2L1.2
App. n.1(B)(iii); see also United States v. Gallegos-Galindo,
704 F.3d 1269, 1272 (9th Cir. 2013). Acosta-Chavez
counters that legally invalid consent based on the victim’s age
does not automatically render a sex offense forcible.
C
We need not decide that issue, however, because even
assuming that sex offenses involving minors are inherently

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forcible, we conclude that the age element contained in the
Illinois statute under which Acosta-Chavez was convicted
includes as minors, persons who are not minors under federal
law, and does so in a way that is indivisible. Because of this,
Acosta-Chavez’s conviction cannot count as a forcible sex
offense, “even if [he] actually committed the offense in its
generic form.” Descamps, 133 S. Ct. at 2283. We reach this
conclusion under the categorical approach. We also conclude
that the modified categorical approach is unavailable to us.
First, under the categorical approach,4 we find that one
element of the Illinois law—its definition of a minor—is
broader than that contained in its generic federal analogue.
See Valencia-Barragan, 608 F.3d at 1107. The Illinois
statute designates as minors those who are “at least 13 years
of age but under 17 years of age,” 720 Ill. Comp. Stat. 5/111.60 (emphasis added), whereas the federal definition of a
minor is someone under sixteen years of age, see United
States v. Gonzalez-Aparicio, 663 F.3d 419, 432 (9th Cir.
2011); see also Rodriguez-Guzman, 506 F.3d at 743–46
(examining a variety of sources, including the Model Penal
Code, state statutes, and federal statutes to determine “that the
term ‘minor’ in the context of a statutory rape law means a
person under sixteen years of age”). The crime as defined in
Illinois thus “sweeps more broadly than the generic crime,”

4

Although the Government’s arguments on appeal focus on the
modified categorical approach, it is appropriate for us to begin with a
discussion of the categorical approach given that “the modified approach
merely helps implement the categorical approach when a defendant was
convicted of violating a divisible statute.” Descamps, 133 S. Ct. at 2285;
see also Gallegos-Galindo, 704 F.3d at 1273 (noting this Court may reach
the question of whether a crime is categorically a “cime of violence”
although the Government does not address the point).

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Descamps, 133 S. Ct. at 2283, and cannot qualify
categorically as a forcible sex offense.
With the categorical approach unavailing, the
Government asks us to resort to the modified categorical
approach. Applying the Supreme Court’s instruction in
Descamps, however, we conclude that the age element
contained in the relevant Illinois statute is not divisible, and,
thus, we may not apply the modified categorical approach.
The Illinois statute’s age element is stated as a range—“at
least 13 years of age but under 17 years of age.” 720 Ill.
Comp. Stat. 5/11-1.60. The statutory language is therefore
not written in a manner that defines this element
“alternatively, with one statutory phrase corresponding to the
generic crime and another not.”5 Descamps, 133 S. Ct. at
2286. Although the statute “implies” a sequence of ages, the
Descamps Court expressly prohibited sentencing courts from
“hypothetically reconceiv[ing] such a statute in divisible
terms.” Id. at 2290. The Supreme Court clearly stated that
divisibility exists only when an element of the crime of
conviction contains alternatives, one of which is an element
of its federal analogue. Id. at 2283–84. The Illinois statute
at issue in this case does not meet this criterion, and we thus
may not resort to the modified categorical approach.
Acosta-Chavez’s prior conviction therefore does not
qualify as a forcible sex offense. Accordingly, we conclude
that the district court erred in applying the “crime of
violence” enhancement.

5

If, for example, the statute defined a minor as a person “14, 15, 16, or
17 years of age,” the statute’s age element would be divisible.

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IV

Having concluded that the District Court erred in applying
the sixteen-level “crime of violence” enhancement, we must
next consider the Government’s argument that this error was
harmless.
“A district court must start with the recommended
Guidelines sentence, adjust upward or downward from that
point, and justify the extent of the departure from the
Guidelines sentence.” United States v. Munoz-Camarena,
631 F.3d 1028, 1030 (9th Cir. 2011). Although a district
court commits procedural error by miscalculating the
applicable Guidelines range, United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc), such errors may be
harmless, United States v. Ali, 620 F.3d 1062, 1074 (9th Cir.
2010). The burden is on the Government to establish that
such an error was harmless. United States v. Beng-Salazar,
452 F.3d 1088, 1096 (9th Cir. 2006).
In this case, the Government contends that the district
court’s statements at sentencing render any error harmless.
Although the district court calculated the enhanced
Guidelines range to be forty-six to fifty-seven months, the
court found that this “range overstate[d] the nature of that
particular conviction,” warranting a below-Guidelines
sentence of thirty months. After imposing the sentence, the
district court stated that it would have imposed the same
sentence even had it found the correct (unenhanced)
Guidelines range to be eight to fourteen months. The district
court stated that a sentence within the unenhanced Guidelines
range “would not sufficiently address the statutory factors of
sentencing, particularly given the nature of the prior

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conviction, the fact that it’s a sex crime involving a minor
child.”
The Government has not met its burden of demonstrating
that the district court’s incorrect application of the “crime of
violence” enhancement was harmless. We have clearly stated
that a district judge’s “mere statement that it would impose
the same above-Guidelines sentence no matter what the
correct calculation cannot, without more, insulate the
sentence from remand.” Munoz-Camarena, 631 F.3d at 1031.
Importantly, “[t]he court must explain, among other things,
the reason for the extent of a variance. The extent necessarily
is different when the range is different, so a one-size-fits-all
explanation ordinarily does not suffice.” Id. (citing Carty,
520 F.3d at 991–92).
The district court’s alternative explanation in this case
does not explain the “extent” of the variance from the
nonenhanced Guidelines range. Rather, the district court
simply stated that a thirty-month sentence “adequately and
fairly addresses all of the statutory factors of sentencing.”
These statements do not render the district court’s erroneous
imposition of a sixteen-level sentencing enhancement
harmless. See United States v. Leal-Vega, 680 F.3d 1160,
1169–70 (9th Cir. 2012).
V
Finally, Acosta-Chavez requests remand to a different
sentencing judge because the original district judge stated that
she would impose the same thirty-month sentence even
absent the “crime of violence” enhancement. We decline to
do so.

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This Court’s “general rule” is that “[a]bsent unusual
circumstances, resentencing is to be done by the original
sentencing judge.” United States v. Waknine, 543 F.3d 546,
560 (9th Cir. 2008) (internal quotation marks omitted).
Absent any allegations of bias, we consider the following
three factors in determining whether “unusual circumstances”
exist:
(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously expressed views or
findings determined to be erroneous or based
on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the
appearance of justice, and (3) whether
reassignment would entail waste and
duplication out of proportion to any gain in
preserving appearance of fairness.
United States v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)
(quoting United States v. Mikaelian, 168 F.3d 380, 387,
amended, 180 F.3d 1091 (9th Cir. 1999)). Acosta-Chavez
relies on the second factor, contending that reassignment is
advisable to preserve the appearance of justice.
We see no reason to depart from our general rule in this
case. When the district court sentenced Acosta-Chavez, it did
so in accordance with then-applicable Ninth Circuit law
concerning the proper application of the modified categorical
approach. Well after the district court issued its sentence, the
Supreme Court decided Descamps, which specifically
disapproved of this Circuit’s use of the modified categorical
approach. See Descamps, 133 S. Ct. at 2286–91. Under

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these circumstances, there is no reason to believe that the
capable district court judge will not follow the law on
remand. Accordingly, we decline to exercise our discretion
to reassign this matter.
VI
The district court erred in applying the modified
categorical approach to determine that Acosta-Chavez’s
Illinois conviction qualifies as a “crime of violence.” This
error was not harmless.
REVERSED and REMANDED.