IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
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
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Defendant
Defendant comes before the court for sentencing after being
convicted of Illegal Reentry under 8 U.S.C. § 1326(a).
1 - OPINION
sentencing materials, the parties disputed the proper calculation
the Sentencing Guidelines.
The government asserts
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
violence." See U.S.S.G. § 2L1.2(b) (1) (D)
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.
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
" '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)
United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir.
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,
sexual abuse of a minor."
§ 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.
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.
the Oregon Rape III statute
qualifies categorically as a "forcible sex offense" because it
"prohibits sexual intercourse with a person who is not
competent to consent because of her age."
1613222, at *2.
Defendant argues, with considerable force, that the Sentencing
Commission did not
intend for crimes regarding
consent based on the victim's youth to be analyzed as "forcible sex
it included "statutory
definition of "crime of violence." Thus, defendant submits, the
Rape III statute is not a "forcible sex offense" because so finding
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).
in Banos-Mejia and hold
conviction under § 163.355 categorically qualifies as a "crime of
violence" because it is a "forcible sex offense."
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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."
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).
federal definition may also include a
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
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).
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The Ninth Circuit's juris prudence on
the generic federal
definition of "sexual abuse of a minor" is instructive.
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
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;
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
Espinoza, 546 F.3d at 1152).
In Medina-Villa, the Ninth Circuit
explained that the "abuse" requirement in "sexual abuse of a minor"
the age-difference and youth elements
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
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
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.
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
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-
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
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),
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