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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

3:13-cr-00018-MA-1

OPINION

Plaintiff,

v.

ANSELMO SANCHEZ-SANCHEZ,

Defendant.

S. AMANDA MARSHALL
United States Attorney
District of Oregon
RYAN W. BOUNDS
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902

Attorneys for Plaintiff

INIGUEZ

RUBEN L.
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204

Attorney for Defendant

MARSH, Judge

Defendant comes before the court for sentencing after being

convicted of Illegal Reentry under 8 U.S.C. § 1326(a).

In their

1 - OPINION

sentencing materials, the parties disputed the proper calculation

of

the Sentencing Guidelines.

The government asserts

that

defendant's prior Rape III conviction under Or. Rev. Stat.

§

163.355 categorically qualifies as a felony conviction for a "crime

of violence" and warrants a sixteen-point Sentencing Guidelines

enhancement. See U.S.S.G. § 2Ll.2(b) (1) (A) (ii) (2012). Defendant

argues that only a four-point enhancement is appropriate because

Oregon's Rape III statute does not qualify as a

"crime of

violence." See U.S.S.G. § 2L1.2(b) (1) (D)

(2012).

I find that

Rape III under Or. Rev. Stat. § 163.355 is a felony "crime of

violence" within the meaning of the Guidelines. Thus, the sixteen(cid:173)

point enhancement is appropriate.

DISCUSSION

To determine whether a state statute of conviction is a "crime

of violence," the court applies the categorical approach set forth

in Taylor v. United States, 495 U.S. 575

(1990).

" 'Under the

categorical approach, we compare the elements of the statutory

definition of the crime 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.

Gonzalez-Aoaricio, 663 F.3d 419, 425

(9th Cir. 2011)

(quoting

United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir.

2010).

2 - OPINION

As relevant to this case, the Sentencing Guidelines define

"crime of violence" to include federal, state, or local convictions

for "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,

[and]

sexual abuse of a minor."

U.S.S.G.

§ 2L1.2 cmt. n.

1 (B) (iii).

The statute of conviction provides that "[a] person commits

the crime of rape in the third degree if the person has sexual

intercourse with another person under 16 years of age." Or. Rev.

Stat. § 163.355(1). The parties agree that Rape III does not fit

within the generic federal definition of "sexual abuse of a minor."

Thus, the sixteen-point enhancement only applies if Oregon's Rape

III statute is a categorical fit within the definition of either

"forcible sex offense" or "statutory rape."

I alternatively hold

that it fits either generic federal definition.

I.

Forcible Sex Offense

In United States v. Banos-Mejia, No. 11-10483, 2013 WL 1613222

(9th Cir. Apr. 16, 2013),

the Ninth Circuit held that New York

Penal Law § 130.30, which prohibits sexual intercourse between a

defendant over eighteen years old and a victim under fifteen years

old, categorically fits within the generic federal definition of

"forcible sex offense" because "[s]ection 130.30(1) prohibits

sexual intercourse with a person who is not legally competent to

3 - OPINION

consent because of her age." Banos-Mejia, 2013 WL 1613222, at *2.

The Oregon Rape III statute here is materially indistinguishable

from that which the Ninth Circuit encountered in Banos-Mejia. The

Rape III statute provides that it is a Class C felony to have

"sexual intercourse with another person under 16 years of age."

Or. Rev. Stat. § 163.355.

Thus,

the Oregon Rape III statute

qualifies categorically as a "forcible sex offense" because it

"prohibits sexual intercourse with a person who is not

legally

competent to consent because of her age."

Banos-Meiia,

2013 WL

1613222, at *2.

Defendant argues, with considerable force, that the Sentencing

Commission did not

intend for crimes regarding

incapacity to

consent based on the victim's youth to be analyzed as "forcible sex

offenses" because

it included "statutory

rape" within

the

definition of "crime of violence." Thus, defendant submits, the

Rape III statute is not a "forcible sex offense" because so finding

would

render

the Commission's

inclusion of "statutory rape"

superfluous. See also United States v. Rangel-Castaneda, 709 F.3d

373, 379-80 (4th Cir. 2013); Gonzalez-Aoaricio, 663 F.3d at 437 n.5

(Tashima, J., dissenting).

Nonetheless,

I

follow

the Ninth

Circuit's decision

in Banos-Mejia and hold

that defendant's

conviction under § 163.355 categorically qualifies as a "crime of

violence" because it is a "forcible sex offense."

Ill

4 - OPINION

II. Statutory Rape

Even if Oregon's Rape III statute is not a "forcible sex

offense" within the meaning of the Guidelines, I alternatively hold

that it categorically qualifies as "statutory rape."

"[T]he

generic federal definition of 'statutory rape' is unlawful sexual

intercourse with a person under the age of 16." United States v.

Zamorano- Ponce, 699 F. 3d 1117, 1119 (9th Cir. 2012).

"The generic

federal definition may also include a

four-year-age-difference

element." Id.; Gonzalez-Aparicio, 663 F. 3d at 428-32. Ultimately,

the generic federal definition of "statutory rape" is determined by

its "'ordinary, contemporary, and common meaning.'" United States

v. Gomez-Mendez, 486 F.3d 599, 602 (9th Cir. 2007) (quoting United

States v. Lopez-Solis, 447 F.3d 1201, 1206-07 (9th Cir. 2006)).

Because Oregon's Rape III statute plainly satisfies the two

certain elements of "statutory rape," but does not satisfy the

potential age-difference element, 1 the existence of the four-year-

age-difference element is determinative. This element's existence,

however, is a difficult question. Gonzalez-Aparicio, 663 F.3d at

428.

I conclude that the generic federal definition of "statutory

rape" does not include a four-year-age-difference element.

1 Oregon's statutory scheme provides a complete defense for
defendants who are less than three years older than the victim.
Or. Rev. Stat. § 163.345. The three-year age difference,
however, is insufficient, and an affirmative defense may not be
considered under the categorical approach. United States v.
Velasquez-Bosque, 601 F. 3d 955, 963 (9th Cir. 2010).

5 - OPINION

The Ninth Circuit's juris prudence on

the generic federal

definition of "sexual abuse of a minor" is instructive.

In

Estrada-Espinoza v. Mukasey, the Ninth Circuit held that a state

statute's elements must fit within the elements of 18 U.S.C. § 2243

to meet the federal generic definition of "sexual abuse of a

minor."

546 F.3d 1147 (9th Cir. 2008); United States v. Medina(cid:173)

Villa, 567 F. 3d 507, 514 (9th Cir. 2009). The Ninth Circuit thus

"determined that 'the generic offense of 'sexual abuse of a minor'

requires 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.'" Medina-Villa, 567 F.3d at 514

(quoting Estrada-

Espinoza, 546 F.3d at 1152).

In Medina-Villa, the Ninth Circuit

explained that the "abuse" requirement in "sexual abuse of a minor"

mandated

the age-difference and youth elements

for statutes

proscribing

sexual conduct with older as well as younger

adolescents - statutes the court termed "statutory rape" - because

not all sexual conduct with adolescents is necessarily abusive.

Id. at 514-15.

Medina-Villa and its progeny then clarified that statutes

could also categorically qualify as "sexual abuse of a minor" under

a second generic federal definition - if the statute regulates (1)

sexual conduct; (2) with a minor; that (3) constitutes abuse, which

may be established if the law targets physical or psychological

6 - OPINION

harm to the child or specifically proscribes sexual conduct with

children under the age of 14.

See id. at 513-16; Valencia-

Barragan, 608 F.3d at 1106-08.

Both generic federal definitions of "sexual abuse of a minor,n

then, were crafted to ensure the state statutes proscribed abuse;

the first through the age-difference and youth elements, and the

second

through the abuse element.

As Medina-Villa suggests,

however, not all statutory rape statutes target abusive conduct.

Medina-Villa, 567 F.3d at 514-15. Thus, to require the youth and

age-difference elements

in

the generic federal definition of

"statutory rape" would render that term superfluous by including

the abuse elements that were in part intended to distinguish

"sexual abuse of a minor" from statutory rape. 2

In addition, adding the four-year-age-difference element to

the generic federal definition of "statutory rapen would exclude

felony statutory rape statutes in 27 states because the state

2 In Medina-Villa the court did note that "if we were to

Id. at 515.

'crime of

I acknowledge that this sentence, read

define 'sexual abuse of a minor' in U.S.S.G. § 2L1.2 as limited
to § 2243, we would eliminate the need for the separate and
independent example of 'statutory rape' as a
violence.'"
in isolation, can be interpreted to assume "statutory rape" is to
be defined according to § 2243.
sentence betrays its own force of reason, as, so defined,
"statutory rape" would be equally superfluous pre-Medina-Villa
with only the single generic federal definition of "sexual abuse
of a minor" based on § 2243 as it would be post-Medina-Villa and
progeny wherein the second definition was resuscitated.
Accordingly, this sentence does not suggest that "statutory rape"
is to be defined according to the elements of § 2243.

So construed, however, this

7 - OPINION

statute's age of consent is too high, 3 it does not contain a four-

year-age-difference

requirement,'

its

four-year-age-difference

requirement is an affirmative defense rather than an element, 5 or

some combination of the above. 6 Simply put, any federal generic·

definition of "statutory rapen that excludes felony statutory rape

statutes in a majority of states is not defined according to the

term's "ordinary, contemporary, and common meaning.n See Gomez-

Mendez, 486 F.3d at 602.

I alternatively hold that the generic federal definition of

"statutory rapen does not

include a

four-year-age-difference

element. Accordingly, Oregon's Rape III statute categorically fits

within the federal generic definition of "statutory rape.n Because

I hold that Oregon's Rape III statute categorically qualifies as a

3 La. Rev. Stat. Ann. § 14:80; Mo. Rev. Stat. § 566.032;

N.Y. Penal Law§ 130.25; 720 Ill. Comp. Stat. 5/11-1.60(d); Tenn.
Code Ann. § 39-13-506 (a),

(d) (1).

4 Ala. Code § 13A-6-62 (a) (1); Conn. Gen. Stat. § 53a-

71(a) (1); Ga. Code Ann. § 16-6-3; Ind. Code§ 35-42-4-9(a); Mass.
Gen. Laws ch. 265, § 23; Mich. Comp. Laws§ 750.520d(1) (a); Minn.
Stat.§ 609.344(1) (b); Miss. Code Ann.§ 97-3-65(1) (a); l"lont.
Code Ann. §§ 45-5-501 (1) (a) (ii) (D), 45-5-503 (1); Neb. Rev. Stat.
§ 28-319; Okla. Stat. tit. 21 §§ 1111-1116; Or. Rev. Stat. §
163.355; R.I. Gen. Laws§ 11-37-6; S.C. Code Ann. § 16-3-655(C);
S.D. Codified Laws§ 22-22-1(5); Wis. Stat. § 948.02(2).

5 De. Code. Ann. tit. 11 §§ 762 (d), 770 (a) (1); Utah Code

Ann. § 76-5-401; see alsoVelasquez-Bosque, 601 F.3d at 963.

6 Ariz. Rev. Stat. Ann. §§ 13-1405, 13-1407(F); Cal. Penal
Code§ 261.5(c); Idaho Code Ann.§ 18-6101(1), (2); Tex. Penal
Code Ann. § 22.011 (a) (2) (A),

(c) (1), (e).

8 - OPINION

"forcible sex offense" or, alternatively, "statutory rape," the

sixteen-point enhancement is appropriate.

IT IS SO ORDERED.

DATED this~ day of July, 2013.

Malcolm F. Marsh
United States District Judge

9 - OPINION