FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOROTEO ROCHA-ALVARADO,

Defendant-Appellant.

No. 15-10517

D.C. No.

4:15-CR-00507-

JAS-BPV-1

OPINION

Appeal from the United States District Court

for the District of Arizona

James. A Soto, District Judge, Presiding

Submitted October 21, 2016*

San Francisco, California

Filed December 12, 2016

Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,

and Jane A. Restani, Judge.**

Opinion by Judge Restani

* The panel unanimously concludes that this case is suitable for

decision without oral argument. Fed. R. App. P. 34(a)(2).

** The Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.
2 UNITED STATES V. ROCHA-ALVARADO

SUMMARY***

Criminal Law

The panel affirmed the district court’s application of a

sixteen-level sentence enhancement to the defendant’s illegalreentry sentence on the ground that his prior conviction for

attempted sexual abuse in the first degree under Oregon

Revised Statutes § 163.427 qualified as a “crime of violence”

under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Because, as the parties agreed, § 163.427 is a divisible

statute, the panel applied the modified categorical approach

to determine which of two different crimes defined by

§§ 163.427(1)(a) and 163.427(1)(b) was the defendant’s

crime of conviction. And because, as the parties agreed, the

defendant’s conviction patently falls under subsection (1)(a),

the panel proceeded to consider whether his crime of

conviction under that subsection is a categorical match to the

federal generic offense of “crime of violence.”

The panel held that because a conviction pursuant to any

of the three further subdivisions of (1)(a) falls under the

generic federal definition of a crime of violence, either as

“sexual abuse of a minor” or a “forcible sex offense,” the

defendant was necessarily convicted of the same elements as

the generic federal definition. The panel explained that it is

irrelevant that the sexual conduct that led to the defendant’s

conviction occurred “outside of the clothes.”

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

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROCHA-ALVARADO 3

COUNSEL

Florence M. Bruemmer, Law Office of Florence M.

Bruemmer P.C., Anthem, Arizona, for Defendant-Appellant.

Rosaleen O’Gara, Assistant United States Attorney; Robert

L. Miskell, Appellate Chief; John S. Leonardo, United States

Attorney; United States Attorney’s Office, Tucson, Arizona;

for Plaintiff-Appellee.

OPINION

RESTANI, Judge:

Defendant-Appellant Doroteo Rocha-Alvarado appeals

the district court’s imposition of a sixteen-level sentencing

enhancement to his conviction of illegal reentry after

deportation in violation of 8 U.S.C. § 1326. We conclude

that the district court did not err in applying the sixteen-level

enhancement because, under the modified categorical

approach, Rocha-Alvarado’s prior conviction for attempted

sexual abuse in the first degree pursuant to Oregon Revised

Statutes § 163.427(1)(a) qualifies as a “crime of violence” for

the purposes of the U.S. Sentencing Guidelines (“the

Guidelines”) § 2L1.2. Accordingly, we affirm.

BACKGROUND

Rocha-Alvarado is a citizen of Mexico and had resided in

Oregon prior to his deportation on May 13, 2013. On

September 4, 2012, Rocha-Alvarado was charged with three

counts of attempted sexual abuse in the first degree, alleging

that on or between March 24, 2012, and August 29, 2012, he
4 UNITED STATES V. ROCHA-ALVARADO

subjected a nine-year-old girl to sexual contact by touching

her vagina, breast, and lips. The prosecutor’s statements at

the change-of-plea hearing further clarified that RochaAlvarado effected the sexual contact “outside of the clothes.”1

ER 34. Rocha-Alvarado pled no contest to three counts of

attempted sexual abuse in the first degree in violation of Or.

Rev. Stat. § 163.427 and was then deported to Mexico.

On February 22, 2015, United States Border Patrol agents

apprehended Rocha-Alvarado near Vamori, Arizona as he

was attempting to reenter the United States. Rocha-Alvarado

admitted that he was illegally present in the United States. 

On April 24, 2015, Rocha-Alvarado pled guilty to an

indictment charging him with illegal reentryafter deportation,

in violation of 8 U.S.C. § 1326.

The district court accepted the final presentence report’s

recommendation of a sixteen-level enhancement, finding that

Rocha-Alvarado’s prior conviction constituted a crime of

violence under the Guidelines § 2L1.2(b)(1)(A)(ii). Thus, the

presentence report calculated a Guidelines range of forty-six

to fifty-seven months of incarceration and recommended a

sentence of forty-six months. The district court applied a

downward variance because Rocha-Alvarado had no other

previous criminal or immigration history and because RochaAlvarado reentered the country for a “compelling reason.” 

Rocha-Alvarado had stated that he returned to the United

1 The prosecutor qualified his statement. When asked by the court

whether the touching occurred over the clothes, the prosecutor responded

by stating, “[t]hat is my understanding, although the Liberty House

(indiscernible) had some questions, whether or not that was what had

happened.” ER 34. As discussed below, however, whether the touching

occurred outside of the clothes is not outcome-determinative.
UNITED STATES V. ROCHA-ALVARADO 5

States in order to find work that would enable him to buy

medicine for his son’s kidney transplant. The district court

sentenced Rocha-Alvarado to thirty months of incarceration

with three years of supervised release. Rocha-Alvarado now

appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review questions of law de novo, including the district court’s

interpretation of the Guidelines and whether a prior

conviction qualifies as a “crime of violence” under the

Guidelines. United States v. Grajeda, 581 F.3d 1186, 1188

(9th Cir. 2009); United States v. Esparza-Herrera, 557 F.3d

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

DISCUSSION

Rocha-Alvarado contends that his prior conviction under

Or. Rev. Stat. § 163.427 for attempted sexual abuse in the

first degree does not qualify as a “crime of violence” under

the modified categorical approach. See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). He argues that, because the plea

transcript states that the sexual contact occurred outside the

victim’s clothing, his prior conviction is not a crime of

violence because it does not meet the generic federal

definition of “sexual abuse of a minor” as defined by

18 U.S.C. §§ 2243(a) and 2246(2)(D). We disagree.

In order to determine whether a state statute of conviction

qualifies as a generic federal crime, we apply the categorical

approach outlined by the Supreme Court in Taylor v. United

States, 495 U.S. 575, 599–602 (1990). Under this approach,

we compare only the elements of the state statute of
6 UNITED STATES V. ROCHA-ALVARADO

conviction with the generic federal definition. See id. The

statute of conviction must criminalize the same or less

conduct than the federal generic offense in order to qualify as

a categorical match. United States v. Villavicencio-Burruel,

608 F.3d 556, 561 (9th Cir. 2010). But if the statute of

conviction criminalizes more conduct than the generic federal

offense, then the prior conviction does not qualify as a

categorical match to the federal offense, and therefore cannot

serve as a sentencing predicate. Descamps v. United States,

133 S. Ct. 2276, 2281, 2283–85 (2013); United States v.

Jennings, 515 F.3d 980, 987 (9th Cir. 2008).

If a crime of conviction does not qualify as a predicate

offense under the categorical approach, it may still qualify

under the modified categorical approach. Quintero-Salazar

v. Keisler, 506 F.3d 688, 694 (9th Cir. 2007). The modified

categorical approach applies where a statute “list[s] potential

offense elements in the alternative” rather than means of

commission and is, therefore, divisible. Descamps, 133 S. Ct.

at 2283; see Mathis v. United States, 136 S. Ct. 2243,

2251–53 (2016). Under the modified categorical approach,

we may examine certain documents to determine what part of

the divisible statute formed the basis of conviction. 

Descamps, 133 S. Ct. at 2284. Specifically, we may review

the terms of “the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the

defendant assented.” Parrilla v. Gonzales, 414 F.3d 1038,

1043 (9th Cir. 2005) (quoting Shepard v. United States,

544 U.S. 13, 16 (2005)); see also United States v. Lee,

704 F.3d 785, 788–89 (9th Cir. 2012). In so doing, we are to

evaluate whether the defendant “necessarily admitted” the

elements of the particular statutory alternative that is a
UNITED STATES V. ROCHA-ALVARADO 7

categorical match to the generic federal offense. Descamps,

133 S. Ct. at 2284 (quoting Shepard, 544 U.S. at 26).

The Guidelines recommend a sixteen-level enhancement

if a defendant, who has unlawfully reentered the United

States, also has a previous felony conviction for a “crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines

define a “crime of violence” to include a list of enumerated

offenses, which relevant to this appeal include: “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), . . . [and] sexual

abuse of a minor.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). The

enumerated “crimes of violence” also include attempts to

commit those crimes. U.S.S.G. § 2L1.2, cmt. n.5. These

listed offenses are per se crimes of violence. United States v.

Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir. 2007). In

addition to the enumerated offenses, the Guidelines include

in the definition of “crime of violence” “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.S.G. § 2L1.2, cmt. n.1(B)(iii).

Under the Oregon statute for sexual abuse in the first

degree, subsection (1)(a) includes three additional

subdivisions that allow for conviction when the sexual

contact occurs with: (A) a victim “less than 14 years of age”;

(B) a victim who “is subjected to forcible compulsion” by the

defendant; or (C) a victim who “is incapable of consent by

reason of” a mental defect, mental incapacitation, or physical

helplessness. Or. Rev. Stat. § 163.427(1)(a). Alternatively,

subsection (1)(b) prohibits “[i]ntentionally caus[ing] a person

under 18 years of age to touch or contact the mouth, anus or

sex organs of an animal for the purpose of arousing or
8 UNITED STATES V. ROCHA-ALVARADO

gratifying the sexual desire of a person.” Or. Rev. Stat.

§ 163.427(1)(b). As the Oregon statute of conviction is

overinclusive of the federal crime with regard to the bestiality

component and as (1)(a) is divisible from (1)(b), we apply the

modified categorical approach here.2

The Oregon state court convicted Rocha-Alvarado of

attempted sexual abuse in the first degree under Or. Rev. Stat.

§ 163.427. In his plea of no contest, Rocha-Alvarado

admitted specifically that, “[o]n or between March 24, 2012

to August 29, 2012, in Polk County, Oregon, [he] unlawfully

and knowingly attempted to subject [the victim] ([Date of

Birth] . . . [20]03), to sexual contact, by touching her vagina

. . . breast . . . and lips, a sexual or intimate part of [the

victim].” ER 33. Rocha-Alvarado’s conviction patently falls

under subsection (1)(a) of the Oregon statute, and both parties

agree to this matter. We therefore proceed to consider

whether Or. Rev. Stat. § 163.427(1)(a), Rocha-Alvarado’s

crime of conviction, is a categorical match to the federal

generic offense of “crime of violence” for purposes of the

Guidelines § 2L1.2.

Because a conviction pursuant to any of the three further

subdivisions of (1)(a) falls under the generic federal

definition of a crime of violence, either as “sexual abuse of a

2 Both parties agree that Or. Rev. Stat. § 163.427 is a divisible

statute, in that subsections (1)(a) and (1)(b) define two different crimes. 

See Mathis, 136 S. Ct. at 2249. Indeed, that is correct. Because

subsections (1)(a) and (1)(b) provide alternative elements needed for

conviction of two different crimes, rather than alternative means of

fulfilling the elements of a single crime, the statute is divisible. 

Accordingly, we must apply the modified categorical approach to

determine which of the two crimes was Rocha-Alvarado’s crime of

conviction.
UNITED STATES V. ROCHA-ALVARADO 9

minor” or a “forcible sex offense,” Rocha-Alvarado was

necessarily convicted of the same elements as the generic

federal definition. Thus, we hold that a conviction under

subsection (1)(a) necessarily entails conviction of the

elements of a crime of violence under the generic federal

definition.

A. Sexual Abuse of a Minor and Or. Rev. Stat.

§ 163.427(1)(a)(A)

Rocha-Alvarado submits that because the sexual conduct

that led to his conviction under Or. Rev. Stat. § 163.427(1)(a)

occurred outside of the clothes, the Oregon statute

criminalizes more conduct than the federal definition

provided within 18 U.S.C. § 2243, which specifically

excludes touching over the clothing in defining sexual abuse

of a minor. See 18 U.S.C. § 2246(2)(D). Our precedent,

however, previously established that 18 U.S.C. § 2243 does

not fully define the universe of sexual offenses contemplated

by U.S.S.G. § 2L1.2’s term “sexual abuse of a minor.” 

United States v. Medina-Villa, 567 F.3d 507, 514–16 (9th Cir.

2009). In Medina-Villa, we recognized that the label “sexual

abuse of a minor” extends to statutes which criminalize

conduct that (1) is sexual, (2) involves a minor, and (3) is

abusive. Id. at 513, 516; see also United States v. BaronMedina, 187 F.3d 1144, 1147 (9th Cir. 1999). We further

defined “abuse as physical or psychological harm in light of

the age of the victim in question.” Medina-Villa, 567 F.3d at

513 (internal quotations omitted).

We conclude that Or. Rev. Stat. § 163.427(1)(a)(A)

constitutes a crime of violence because it falls within the

generic federal definition of sexual abuse of a minor. First,

a conviction under subdivision (1)(a)(A) of the Oregon statute
10 UNITED STATES V. ROCHA-ALVARADO

necessarily involves conduct that is “sexual.” Contrary to

Rocha-Alvarado’s arguments, touching over the clothes is

irrelevant. The Oregon statute requires simply that the

touching was done for the purpose of sexual gratification,

placing the focus on the intent rather than the manner of the

touching. Or. Rev. Stat § 163.305(6) (defining “[s]exual

contact” as “touching of the sexual or other intimate parts of

a person . . . for the purpose of arousing or gratifying the

sexual desire of either party” (emphasis added)). Indeed, in

evaluating a comparable California statute, we held that the

defendant’s conviction under the California statute

categorically constituted “sexual abuse of a minor” and

qualified as a “crime of violence” for federal sentencing

purposes. Baron-Medina, 187 F.3d at 1147. There, the

California statute in question prohibited conduct that involves

“the touching of an underage child’s body” where the

touching is done “with a sexual intent.” Id.; see Cal. Pen.

Code § 288(a) (1987). We explained that, under the

California statute, “the character of the touching, though

perhaps circumstantially relevant to prove intent, is otherwise

immaterial.” Baron-Medina, 187 F.3d at 1147. Here,

regardless of the manner of touching, i.e., outside or inside of

the clothes, the Oregon statute similarly criminalizes conduct

that is sexual as it expressly defines “sexual contact” through

its relation to sexual gratification.

Second, subdivision (1)(a)(A) of the Oregon statute

pertains to minors as it specifically requires the victim to be

“less than 14 years of age.” Or. Rev. Stat.

§ 163.427(1)(a)(A). Third, it satisfies the last element of

“sexual abuse of a minor,” as our precedent establishes that

sexual contact with a child below the age of fourteen is per se

abusive. United States v. Valencia-Barragan, 608 F.3d 1103,

1107 (9th Cir. 2010). Rocha-Alvarado, relying on only
UNITED STATES V. ROCHA-ALVARADO 11

18 U.S.C. §§ 2243 and 2246(2)(D), has failed to address the

broader definition of “sexual abuse of a minor” included in

our precedent. Instead, a violation of subdivision (1)(a)(A)

requires a conviction of all three elements included within the

generic federal definition of sexual abuse of a minor. Any

conviction under subdivision (1)(a)(A) of the Oregon statute,

therefore, qualifies as a crime of violence because it falls

within the federal definition of “sexual abuse of minor.”

B. Forcible Sex Offense and Or. Rev. Stat.

§ 163.427(1)(a)(B) and (C)

A conviction under either subdivisions (1)(a)(B) or (C)

would also constitute a “crime of violence” as both

subdivisions fall within the generic federal definition of a

“forcible sex offense.” Under the Guidelines, a forcible sex

offense includes crimes in which “consent to the conduct is

not given or is not legally valid, such as where the consent is

involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2,

cmt. n.1(B)(iii). Prior to a 2008 amendment, the Guidelines

simply listed “forcible sex offense” as an example of a “crime

of violence” and did not specifically define a “forcible sex

offense” as a situation in which consent is lacking. The 2008

amendment broadened the meaning of “forcible sex offense”

such that an “indicia of additional force or violence are no

longer required for the forcible sex offense enhancement so

long as consent to the sex offense is shown to be lacking.”

3

3 We clarify that the 2008 amendments to the Guidelines abrogated

our holding in United States v. Beltran-Munguia, 489 F.3d 1042 (2007),

by expanding the generic federal definition of “forcible sex offense.” In

that case, we held that sexual abuse in the second degree under Or. Rev.

Stat. § 163.425 is not categorically a crime of violence. Beltran-Munguia,

489 F.3d at 1044, 1053. We explained that the Oregon statute at issue

“constitutes a ‘crime of violence’ only if: (1) the crime constitutes a
12 UNITED STATES V. ROCHA-ALVARADO

United States v. Quintero-Junco, 754 F.3d 746, 753 (9th Cir.

2014) (quoting United States v. Gallegos-Galindo, 704 F.3d

1269, 1272 (9th Cir. 2013)).

Subdivision (1)(a)(B) of the Oregon statute for sexual

abuse in the first degree falls within the federal definition of

“forcible sex offense,” i.e., an enumerated crime of violence. 

The statute requires the victim to be subjected to “forcible

compulsion.” Or. Rev. Stat. § 163.427(1)(a)(B). Under

Oregon law, forcible compulsion is force that is (1) “greater

in degree or different in kind” from the simple act of touching

the intimate part of another and (2) “sufficient to ‘compel’ the

victim, against the victim’s will, to submit to or engage in the

sexual contact, but it need not rise to the level of violence.” 

State v. Marshall, 253 P.3d 1017, 1027 (Or. 2011). Because

this section of the Oregon statute requires that the touching be

against the victim’s will, it meets the generic federal

definition of a forcible sex offense as provided in the 2008

amendments and, therefore, is a crime of violence.

Subdivision (1)(a)(C) of the Oregon statute also

constitutes a forcible sex offense. It requires that sexual

contact be made with a victim “incapable of consent.” Or.

Rev. Stat. § 163.427(1)(a)(C). Thus, it definitively meets the

‘forcible sex offense,’ a term left undefined by the guidelines; or

(2) conviction of the crime requires proof of ‘the use, attempted use, or

threatened use of physical force against the person of another.’” Id. at

1044 (emphasis added). Although we recognized that “the victim’s lack

of consent is the defining characteristic” of sexual abuse in the second

degree under the Oregon statute, we understood “forcible sex offense” to

require “the use of force.” Id. at 1045, 1051. As discussed, the 2008

amendment, however, has defined “forcible sex offense” and broadened

the meaning of that term by no longer requiring force if consent is lacking. 

Quintero-Junco, 754 F.3d at 753.
UNITED STATES V. ROCHA-ALVARADO 13

generic federal definition of forcible sex offense, as amended

in 2008, which includes situations where “consent . . . is not

given or is not legally valid, . . . [e.g.,] involuntary,

incompetent, or coerced[.]” U.S.S.G. § 2L1.2, cmt.

n.1(B)(iii). Both subdivisions (1)(a)(B) and (1)(a)(C), thus,

constitute crimes of violence under the applicable Guidelines.

CONCLUSION

A conviction under any one of Or. Rev. Stat.

§ 163.427(1)(a)’s three subdivisions, therefore, necessarily

entails a conviction of the elements of the generic federal

definition of a crime of violence, whether it be sexual abuse

of a minor or a forcible sex offense. For the foregoing

reasons, the district court’s judgment of conviction and

sentence are

AFFIRMED.