The Honorable Ronald S.W. Lew, United States District Judge for the *

Central District of California, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR GALLEGOS-GALINDO, AKA

Oscar A. Gallegos-Galindo, AKA

Oscar Alsonso Gallegos-Galindo,

Defendant-Appellant.

No. 12-10000

D.C. No.

4:11-cr-00953-

DCB-HCE-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Ronald S.W. Lew, Senior District Judge, Presiding *

Argued and Submitted

November 5, 2012—San Francisco, California

Filed January 17, 2013
2 UNITED STATES V. GALLEGOS-GALINDO

 The Honorable Robert D. Sack, Senior Circuit Judge for the United **

States Court of Appeals for the Second Circuit, sitting by designation.

 This summary constitutes no part of the opinion of the court. It has

***

been prepared by court staff for the convenience of the reader.

Before: Robert D. Sack, Ronald M Gould, **

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Sack

SUMMARY

***

Criminal Law

The panel affirmed a sentence for illegal reentry in a case

in which the district court concluded that the defendant’s

2008 conviction for third-degree rape under Revised Code of

Washington § 9A.44.060(1)(a) qualified as a “forcible sex

offense” supporting a 16-level crime-of-violence

enhancement under U.S.S.G. § 2L1.2(a)(1)(A).

Applying the modified categorical approach, the panel

held that because the Guidelines were amended in 2008 to

include as a forcible sex offense any sex offense involving the

absence of the victim’s consent, and because the defendant

stated in his signed 2008 guilty plea that the victim did not

consent, the district court did not err – plainly or otherwise –

in concluding that the prior conviction was a crime of

violence. 
UNITED STATES V. GALLEGOS-GALINDO 3

COUNSEL

Dan W. Montgomery (argued), Tucson, Arizona, for

Defendant-Appellant.

Erica L. Seger (argued), Tucson, Arizona, for PlaintiffAppellee.

OPINION

SACK, Circuit Judge:

The question before us on this appeal is whether the

district court, when sentencing the defendant-appellant Oscar

Gallegos-Galindo, properly included a crime of violence

enhancement based on the court’s conclusion that the

defendant’s prior Washington State third-degree rape

conviction qualified as a forcible sex offense under the

United States Sentencing Guidelines (“the Guidelines”). See

U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii).

Because the Guidelines were amended in 2008 to include as

a forcible sex offense any sex offense involving the absence

of the victim’s consent, we conclude that the district court did

not err in entering the crime of violence enhancement in these

circumstances and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2011, U.S. Border Patrol agents

observed a group of persons walking in the Arizona desert.

Suspecting that they had illegally entered the country, the

agents arrested the members of the group, including the

defendant-appellant Oscar Gallegos-Galindo.
4 UNITED STATES V. GALLEGOS-GALINDO

 The pre-sentence report also included information regarding  

Gallegos-Galindo’s 2002 federal illegal entry conviction, for which he was

sentenced to 30 days’ incarceration. The report indicated that he had

pending against him charges for driving under the influence in 2007 and

had been arrested for the possession of a controlled narcotic substance in

2002, driving under the influence in 2002, and theft in 2004.

On March 16, 2011, a Tucson grand jury returned an

indictment charging Gallegos-Galindo with reentry as a

removed alien in violation of 8 U.S.C. § 1326, enhanced by

8 U.S.C. § 1326(b)(2). On July 15, 2011, he pled guilty to the

charges in the indictment without a plea agreement.

In preparing Gallegos-Galindo’s pre-sentence report, the

probation department considered his prior convictions. The

department concluded that his 2008 Washington conviction

for rape in the third degree was a “forcible sex offense” that

qualified as a “crime of violence” under the Guidelines,

U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, Gallegos-Galindo’s

recommended offense level was increased by 16 levels to 24.

The probation department then recommended a deduction of

two points for acceptance of responsibility, resulting in an

offense level of 22. Based on that offense level and his

criminal history category of II, Gallegos-Galindo’s

Guidelines range was calculated to be 46–57 months’

imprisonment.** **

In 2008, Gallegos-Galindo was convicted in Washington

of Rape in the Third Degree, a felony, in violation of Revised

Code of Washington § 9A.44.060(1)(a). According to an

affidavit in support of the Motion for Warrant in that case, the

juvenile victim reported that she had been sexually assaulted

after, at Gallegos-Galindo’s demand, she entered his car from

the road along which she had been walking. She said that
UNITED STATES V. GALLEGOS-GALINDO 5

after stopping for coffee, Gallegos-Galindo drove her to a

secluded dirt road. He then assaulted her by “kissing her

mouth, biting her lips leaving a visible injury, sucking on

[her] breasts, and penetrating her ‘butt’ with his penis . . . .”

The victim “both told him ‘no’ and to stop, and tried to push

him away but was unable to do so.” The victim later used the

cell phone of a passing motorist to contact police.

Gallegos-Galindo pled guilty to Rape in the Third Degree.

In his February 28, 2008 statement accompanying his plea of

guilty to the offense (the “Statement”), he said: “On January

23, 2007, in Skagit County, Washington, I engaged in sexual

intercourse with K.A.T., to whom I wasn’t married and

K.A.T. did not consent to the sexual intercourse and clearly

expressed that with her words and conduct.” The state court

found that there was a factual basis for Gallegos-Galindo’s

plea and convicted him under Revised Code of Washington

§ 9A.44.060(1)(a). On May 8, 2008, he was sentenced to

twelve months in prison. After serving the sentence,

Gallegos-Galindo was ordered removed from the United

States by the Department of Justice, and was removed.

At his federal sentencing for the 2011 reentry now before

us, the effect of the 2008 third-degree rape conviction was

discussed. Defense counsel conceded that Gallegos-Galindo

was “categorically level 24,” implicitly acknowledging that

the 16-level “crime of violence” enhancement under

§ 2L1.2(b)(1)(A) of the Guidelines was correctly applied.

But counsel argued that factors under 18 U.S.C. § 3553(a),

including deterrence and family history, ought to be

considered. Counsel requested a sentence below the

applicable Guidelines range. The government argued for a

sentence at the high end of the range, in part because of the
6 UNITED STATES V. GALLEGOS-GALINDO

seriousness of the circumstances surrounding the third-degree

rape conviction.

Following argument, the district court declined GallegosGalindo’s request for a downward departure and sentenced

him to 52 months’ imprisonment, in the middle of the

Guidelines range. The court acknowledged that GallegosGalindo’s criminal history category was II, but noted his

many criminal convictions and other contacts with law

enforcement officers over the previous decade. In arriving at

its sentence, the court stated that it had considered the factors

it was required to consider under 18 U.S.C. § 3553(a), the

entire record, including judicially noticeable documents, the

defendant’s sentencing memorandum, and the pre-sentence

report. 

JURISDICTION AND STANDARD OF REVIEW

Ordinarily, this Court reviews de novo a district court’s

determination that a defendant’s prior conviction qualifies as

a “crime of violence” for a 16-level enhancement pursuant to

Guidelines § 2L1.2(b)(1)(A). United States v. Grajeda,

581 F.3d 1186, 1188 (9th Cir. 2009), cert. denied, 131 S. Ct.

583 (2010); United States v. Esparza-Herrera, 557 F.3d

1019, 1021–22 (9th Cir. 2009) (per curiam). Where a

defendant fails to raise an issue before the district court,

however, we review for plain error, so long as it has been

forfeited rather than deliberately waived, in which case we

will decline to review it at all. See United States v. Ross,

511 F.3d 1233, 1235 (9th Cir. 2008); United States v. Perez,

116 F.3d 840, 845 (9th Cir. 1997) (en banc).

Here, defense counsel agreed with the district court that

Gallegos-Galindo was “categorically level 24,” essentially
UNITED STATES V. GALLEGOS-GALINDO 7

admitting to the 16-level enhancement. There is no reason to

think that the defendant considered objecting but did not do

so for tactical reasons. The defendant thus did not

deliberately waive the objection. He may therefore raise the

issue on appeal, albeit subject to plain error review. See

United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.

2001).

Plain error is “(1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Cotton, 535 U.S.

625, 631 (2002) (citation and quotation marks omitted). If

these three conditions are met, we may exercise our discretion

to notice a forfeited error that “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

(citation omitted).

DISCUSSION

The principal issue on appeal is thus whether the district

court plainly erred in imposing upon Gallegos-Galindo in

2011 a crime of violence enhancement pursuant to Guidelines

§ 2L1.2(b)(1)(A) for his 2008 Washington State third-degree

rape conviction. The district court arrived at its conclusion

that the enhancement was justified by reference to the

Guidelines, as amended in 2008. Before then, Application

Note 1(B)(iii) to Guidelines § 2L1.2 had characterized a

“crime of violence” as including three types of sexual

offenses: forcible sex offenses, statutory rape, and sexual

abuse of a minor. We had interpreted “forcible sex offenses”

in cases such as this one as requiring the use of some physical

force above and beyond that required for penetration. See

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144

(9th Cir. 2007).
8 UNITED STATES V. GALLEGOS-GALINDO

In 2008, however, the Sentencing Commission

promulgated Amendment 722 (the “2008 Amendment”),

which modified the definition of Application Note 1(B)(iii)

to include within the definition of “forcible sex offenses”

those offenses “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.” U.S. Sentencing

Guidelines Manual § 2L1.2, cmt. n.1(B)(iii). Thus, under the

2008 Amendment, indicia of additional force or violence

were no longer required for the enhancement so long as

consent to the sex offense was shown to be lacking.

Despite these changes, there lingered some uncertainty as

to whether force above and beyond that required for

penetration was still necessary for a sex offense to be

forcible. Indeed, that is the argument that the defendant

makes here. He argues that in United States v. EspinozaMorales, 621 F.3d 1141 (9th Cir. 2010), a case involving a

sex offense for which the defendant was sentenced after the

effective date of the 2008 Amendment, we did not explicitly

abrogate United States v. Lopez-Montanez, 421 F.3d 926 (9th

Cir. 2005), a case in which the sex offense sentence occurred

prior to the 2008 Amendment and where, unlike here, we

decided that the pre-2008 additional force standard was

required to be applied. 

The result in Espinoza-Morales, however, was driven by

the fact that the defendant had committed the federal re-entry

offense immediately before changes to the Guidelines became

effective, but was sentenced after they became effective,

arguably subjecting him to a higher sentence. EspinozaMorales, 621 F.3d at 1146. Although a district court usually

applies the version of the Sentencing Guidelines in effect on

the date of a defendant’s sentencing, U.S. Sentencing
UNITED STATES V. GALLEGOS-GALINDO 9

Guidelines Manual § 1B1.11, the Ex Post Facto Clause of the

United States Constitution requires that if the Guidelines have

undergone substantive changes that would disadvantage the

defendant, then the defendant is to be sentenced under the

Guidelines in effect at the time of the offense, rather then at

sentencing. See United States v. Alfaro, 336 F.3d 876, 882

(9th Cir. 2003). It was for just that reason that we declined to

apply the 2008 Guidelines in Espinoza-Morales. We

reasoned that “if the 2008 amendment to § 2L1.2’s crime of

violence definition abrogated Lopez-Montanez, it was

substantive and therefore cannot be applied to [the

defendant].” Espinoza-Morales, 621 F.3d at 1146. In light

of this change, we followed Lopez-Montanez because it

offered an analysis of how to treat the issues prior to the 2008

Amendment to the Guidelines. Id. 

The case at bar is critically different. The Ex Post Facto

Clause would require Gallegos-Galindo to be sentenced under

the Guidelines in effect at the time of his “current offense” –

the offense of re-entry, not the state sex offense – rather than

at the time of sentencing only if in the intervening period

there was an amendment that substantively disadvantaged

him. Id. The current offense took place on February 15,

2011, long after the 2008 Amendment to the Guidelines

became effective. There was no intervening change between

the offense and sentencing that would disadvantage GallegosGalindo, and, unlike in Espinoza-Morales, we would not be

required to use the pre-2008 definition of a forcible sex

offense and engage in a determination of whether the crime

involved the use or attempted use of additional force. We can

therefore rely upon the further enumeration of which forcible

sex offenses constitute crimes of violence under the 2008

Amendment.
10 UNITED STATES V. GALLEGOS-GALINDO

In light of this fact, for those like Gallegos-Galindo who

are properly sentenced pursuant to the Guidelines after the

2008 Amendment, Lopez-Montanez is simply inapplicable to

the extent that it required, for a crime of violence

enhancement, force beyond penetration in the case of sex

offenses where “consent to the conduct is not given or is not

legally valid.” U.S. Sentencing Guidelines Manual § 2L1.2,

cmt n.1(B)(iii). 

To decide whether Gallegos-Galindo’s sex offense was

properly characterized as a crime of violence, we ordinarily

follow the categorical and modified categorical approaches

outlined in Taylor v. United States, 495 U.S. 575 (1990); see

also Grajeda, 581 F.3d at 1189. 

Under the categorical approach, we first consider whether

a prior offense “is categorically a crime of violence by

assessing whether the full range of conduct covered by the

statute falls within the meaning of that term.” Grajeda,

581 F.3d at 1189 (quotation marks, alterations, and citation

omitted). “If the statute of conviction is overbroad – that is,

if it punishes some conduct that qualifies as a crime of

violence and some conduct that does not – it does not

categorically constitute a crime of violence.”

Espinoza-Morales, 621 F.3d at 1144. 

The Washington statute under which Gallegos-Galindo

was convicted states in relevant part:

(1) A person is guilty of rape in the third

degree when, under circumstances not

constituting rape in the first or second

degrees, such person engages in sexual
UNITED STATES V. GALLEGOS-GALINDO 11

intercourse with another person, not married

to the perpetrator:

(a) Where the victim did not consent as

defined in RCW 9A.44.010(7), to sexual

intercourse with the perpetrator and such lack

of consent was clearly expressed by the

victim’s words or conduct, or

(b) Where there is threat of substantial

unlawful harm to property rights of the

victim.

Wash. Rev. Code § 9A.44.060.

We need not decide whether Gallegos-Galindo’s crime

was categorically a crime of violence under these provisions.

The government does not argue that it was. Although we

have the technical power to reach a categorical analysis issue

embedded in the facts, we are not required to reach an issue

that is not briefed and not necessary for our decision. See

Lopez v. Smith, 203 F.3d 1122, 1125 n.5 (9th Cir. 2000) (en

banc). The government argues to us only that the Revised

Code of Washington § 9A.44.060(1) was a crime of violence

under the “modified categorical approach.” Because we

agree that it was a crime of violence under the modified

categorical analysis, we need not and do not decide the issue

not raised by the government as to whether it was

categorically a crime of violence.

Pursuant to the modified categorical approach, GallegosGalindo’s record of conviction reflects the fact that he “was

convicted of the elements of the generically defined crime.”

United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir. 2007)
12 UNITED STATES V. GALLEGOS-GALINDO

(en banc). We have explained that the modified categorical

approach “requires us to determine – if we can – whether the

conduct for which the defendant was convicted fits within the

federal definition of the offense [detailed here in the

Guidelines note].” United States v. Snellenberger, 548 F.3d

699, 701 (9th Cir. 2008)(en banc)(per curiam), abrogated on

other grounds by Young v. Holder, 697 F.3d 976 (9th Cir.

2012) (en banc). That is, we are required to find that the

conviction is indeed a “predicate conviction for enhancement

purposes.” United States v. Bonat, 106 F.3d 1472, 1476 (9th

Cir. 1997) (quoting United States v. Sweeten, 933 F.2d 765,

769-70 (9th Cir. 1991)), cert. denied, 522 U.S. 874 (1997).

We can conclude that a conviction qualified as a crime of

violence under the modified categorical approach “only if the

record of conviction shows the jury [or district court, if there

is no jury trial] ‘necessarily’ found all of the generic

elements, or the defendant ‘necessarily’ admitted all of the

generic elements in a plea.” Sandoval-Lua v. Gonzales,

499 F.3d 1121, 1131 (9th Cir. 2007) (citing Taylor, 495 U.S.

at 599–602 and Shepard v. United States, 544 U.S. 13, 19–21

(2005)), overruled on other grounds by Young, 697 F.3d at

980.

Under the modified categorical approach, we may

appropriately consider certain kinds of documentation and

judicially noticeable facts when determining whether a

conviction is a predicate conviction for enhancement

purposes, including “the indictment, the judgment of

conviction, jury instructions, a signed guilty plea, or the

transcript from the plea proceedings.” United States v.

Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)

(quoting United States v. Casarez-Bravo, 181 F.3d 1074,

1077 (9th Cir. 1999)). 
UNITED STATES V. GALLEGOS-GALINDO 13

The government offers Gallegos-Galindo’s Statement as

evidence that the sexual assault was committed without the

consent of the victim. The Statement is contained in a

judicially noticeable document – a signed guilty plea – and

indeed states that the victim did not consent to the offense.

Gallegos-Galindo’s conviction can thus be said to fall within

the Guidelines’ definition of “forcible sex offenses,” which

includes offenses “where consent to the conduct is not

given . . . .” U.S. Sentencing Guidelines Manual § 2L1.1,

cmt. n.1(B)(iii). Under the modified categorical approach,

the district court therefore did not err – plainly or otherwise

– when it concluded that Gallegos-Galindo’s conviction for

rape in the third degree was a crime of violence. The conduct

for which he was convicted does “fit[] within the . . .

definition” of a crime of violence, Snellenberger, 548 F.3d

at 701, and he indeed did “‘necessarily’ admit[] all of the

generic elements in [his] plea,” Sandoval-Lua, 499 F.3d at

1131.

AFFIRMED.