FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ISRAEL ARNOLDO CACERES-OLLA,

Defendant-Appellant.

No. 12-10132

D.C. No.

4:11-cr-02358-

DCB-DTF-1

OPINION

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued July 8, 2013

Submitted September 18, 2013

San Francisco, California

Filed December 23, 2013

Before: Ferdinand F. Fernandez, Richard A. Paez,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Fernandez
2 UNITED STATES V. CACERES-OLLA

SUMMARY*

Criminal Law

Vacating a sentence and remanding on a closed record for

resentencing, the panel held that a prior felony conviction

under Florida Statutes section 800.04(4)(a) for lewd or

lascivious battery does not qualify as a “crime of violence”

within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because

the crime does not constitute a “forcible sex offense” or

“statutory rape.”

Judge Fernandez concurred in the result, but not in all of

the reasoning of the majority opinion.

COUNSEL

M. Edith Cunningham (argued) and Christopher R. Kilburn,

Assistant Federal Public Defenders; Jon M. Sands, Federal

Public Defender, Tucson, Arizona, for Defendant-Appellant.

Erica L. Seger (argued), Assistant United States Attorney;

John S. Leonardo, United States Attorney; Christian M.

Cabanillas, Appellate Chief, Tucson, Arizona, for PlaintiffAppellee.

* 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. CACERES-OLLA 3

OPINION

BERZON, Circuit Judge:

Israel Arnoldo Caceres-Olla pleaded guilty, under

8 U.S.C. § 1326, to unlawful reentry into the United States. 

Sentences for that offense are governed by United States

Sentencing Guideline (“Guideline”) 2L1.2. This case

presents the question whether a prior felony conviction under

Florida Statutes section 800.04(4)(a) for lewd or lascivious

battery qualifies as a “crime of violence” for purposes of that

Guideline. We hold that it does not, because the crime does

not constitute a “forcible sex offense” or “statutory rape”

within the meaning of the applicable Guideline. Because the

district court concluded otherwise, we vacate Caceres-Olla’s

sentence and remand on a closed record for resentencing.

I.

The base offense level for a violation of § 1326 is eight. 

See U.S.S.G. § 2L1.2(a). If the defendant was previously

deported after being convicted of a felony that constitutes a

“crime of violence,” the offense level goes up by sixteen

levels. Id. § 2L1.2(b)(1)(A)(ii).

The presentence report (“PSR”) concluded that CaceresOlla’s prior conviction for lewd or lascivious battery was a

“forcible sex offense” and, consequently, qualified as a

“crime of violence” under Guideline 2L1.2(b)(1)(A)(ii). 

Caceres-Olla objected, arguing that his prior conviction did

not constitute a “forcible sex offense,” because the Florida

statute did not require a non-consensual act and the

Guideline’s reference to “consent . . . [deemed] not legally

valid,” U.S.S.G. 2L1.2 cmt. n.1(B)(iii), was not intended to
4 UNITED STATES V. CACERES-OLLA

apply to statutes criminalizing sexual activity due only to the

victim’s age. The district court disagreed, applied the

recommended enhancement, and sentenced Caceres-Olla to

a 46-month prison term. Caceres-Olla timely appealed.

We review de novo the district court’s decision that

Caceres-Olla’s prior conviction qualifies for a sentencing

enhancement under Guideline 2L1.2(b). See United States v.

Marquez-Lobos, 697 F.3d 759, 761 (9th Cir. 2012).

II.

For the purpose of Guideline 2L1.2(b)(1)(A)(ii), a “crime

of violence” is defined as

any of the following offenses under federal,

state, or local law: murder, manslaughter,

kidnapping, aggravated assault, 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,

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.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). CaceresOlla was convicted under Florida law of “[l]ewd or lascivious

battery,” which prohibits “[e]ngag[ing]in sexual activitywith

a person 12 years of age or older but less than 16 years of
UNITED STATES V. CACERES-OLLA 5

age.” Fla. Stat. § 800.04(4)(a) (2008). The government

contends that Caceres-Olla’s conviction constitutes a “crime

of violence” because it qualifies as either a “forcible sex

offense” or “statutory rape.”1 We begin with the former.

A.

To determine whether section 800.04(4) qualifies as a

“crime of violence,” we apply the framework set forth 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)

(citations and quotation marks omitted). “To constitute an

‘element’ of a crime, the particular factor in question needs

to be ‘a “constituent part” of the offense [that] must be

proved by the prosecution in every case to sustain a

conviction under a given statute.’” United States v.

Beltran-Munguia, 489 F.3d 1042, 1045 (9th Cir. 2007)

(citations omitted) (alteration and emphasis in original). If

the statute of conviction “sweeps more broadly than the

generic crime, a conviction under that law cannot count as [a

qualifying] predicate, even if the defendant actually

1

In his opening brief, Caceres-Olla maintainsthat his conviction did not

constitute “sexual abuse of a minor,” another enumerated “crime of

violence” within Guideline 2L1.2(b)(1)(A), because section 800.04(4)(a)

prohibits sexual conduct with minors of 14 years and older and does not

require an element of “abuse.” The government did not respond to this

argument, and so has waived reliance on that “crime of violence” variant. 

See United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012).
6 UNITED STATES V. CACERES-OLLA

committed the offense in its generic form.” Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013).2

The Sentencing Guidelines were amended in 2008 to

include a more detailed description of the

“forcible sex offenses” that would constitute

crimes of violence. Rather than simply listing

“forcible sex offenses” as a crime of violence,

the new definition lists “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).”

United States v. Espinoza-Morales, 621 F.3d 1141, 1146 (9th

Cir. 2010) (quoting U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)). After

explaining that “forcible sex offenses” include crimes in

which there may be “‘assent in fact but no legally valid

consent . . . .’” U.S.S.G. app. C, amend. 722 (citations

omitted), the SentencingCommission cited three examples of

scenarios drawn from past cases that the amendment was

intended to address, including situations in which consent is

procured by (1) threats “to reveal embarrassing secrets” or

“fire a subordinate”; (2) coercion by a “public servant,”

“member of the clergy,” or “mental health service provider”;

2 The Supreme Court has also “recognized a ‘narrow range of cases’ in

which sentencing courts—applying . . . the ‘modified categorical

approach’—may look beyond the statutory elements to ‘the charging

paper and jury instructions’” to determine whether the defendant’s

conviction necessarily involved facts corresponding to the generic federal

offense. Id. at 2283–84.
UNITED STATES V. CACERES-OLLA 7

or (3) exploitation of a known “mental disease or defect” or

“intoxication.” Id. (citations omitted).

Under the amended Guidelines, a “forcible sex offense”

thus requires a sexual act where “consent to the conduct”:

(1) “is not given”; or (2) “is not legally valid, such as where

consent to the conduct is involuntary, incompetent, or

coerced.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). A plain reading

of Florida’s “[l]ewd and lascivious battery” offense, Fla. Stat.

§ 800.04(4)(a), makes clear that lack of consent is not an

“element” of the crime. As with statutory rape “[i]n most

jurisdictions,” section 800.04(4)(a) “is a strict liability

crime.” United States v. Gomez-Mendez, 486 F.3d 599, 604

(9th Cir. 2007). It criminalizes “[e]ngag[ing] in sexual

activity with a person 12 years of age or older but less than 16

years of age,” regardless of whether the victim, in fact,

consents. Fla. Stat. §§ 800.04(2), (4)(a).

Caceres-Olla’s conviction could only be a “forcible sex

offense,” therefore, if the victim’s “consent . . . is [deemed]

not legally valid, such as where consent to the conduct is

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

n.1(B)(iii). The government contends that section 800.04(4)

is categorically a “forcible sex offense” under that provision,

because consent is not a defense to the crime under Florida

law. See Fla. Stat. § 800.04(2) (“Neither the victim’s lack of

chastity nor the victim’s consent is a defense to the crimes

proscribed by this section.”).

We disagree for three reasons. First, the absence of a

consent defense to statutory rape is analytically distinct from

situations in which a victim’s “consent . . . is [deemed] not

legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced.” U.S.S.G. 2L1.2 cmt.
8 UNITED STATES V. CACERES-OLLA

n.1(B)(iii). The three examples cited by the Sentencing

Commission, see infra at pp. 6–7, involve instances in which

the victim does not in fact have the state of mind of willing

acquiescence — either because her consent is coerced, or

because her actual state of mind is such that she is not capable

of willingly consenting, as in the case of incompetence or

intoxication. We have acknowledged, however, that “the

assumption that a minor’s legal incapacity implies that the

proscribed sexual intercourse is non-consensual” does not

always “hold true[.]” Valencia v. Gonzales, 439 F.3d 1046,

1051 (9th Cir. 2006). Some minors are “able to engage in

sexual intercourse voluntarily, despite being legallyincapable

of consent.” Id. In other words, because statutory rape is a

strict liability crime, the minor’s actual state of mind does not

matter, nor does the minor’s actual capacity for mature

deliberation.

Application of the familiar ejusdem generis canon

suggests that the general term “consent . . . not legally valid,”

U.S.S.G. 2L1.2 cmt. n.1(B)(iii), should be “construed to

embrace only [circumstances] similar in nature to those

[circumstances] enumerated” in the phrase that follows,

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15

(2001) (citation and quotation marks omitted). A state statute

that for policy reasons treats a minor’s consent as irrelevant

does not necessarily render that minor’s conduct similar to

conduct that is “involuntary, incompetent, or coerced[,]” all

of which depend on the specific circumstances of the crime

and the victim. Instead, statutory rape offenses outlaw

conduct based on the minor’s age alone; however voluntary

and competent the minor, her consent will not be a defense to

the crime.
UNITED STATES V. CACERES-OLLA 9

Second, reading “forcible sex offenses” to encompass a

conviction under section 800.04(4) on the theory that the

victim’s consent is “involuntary” or “incompetent” by virtue

of a statute criminalizing sexual activity on the basis of the

victim’s age would render superfluous the inclusion of

“statutory rape” and “sexual abuse of a minor” as other

enumerated offenses constituting “crime[s] of violence.” 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

“The term ‘statutory rape’ is ordinarily, contemporarily,

and commonly understood to mean the unlawful sexual

intercourse with a minor under the age of consent specified

by state statute.” Gomez-Mendez, 486 F.3d at 603. If all sex

offenses “where consent . . . is not legally valid” on the basis

of age are, by definition, “forcible,” there would be no need

to separately enumerate “statutory rape.” See U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iii). The same would be true of “sexual

abuse of a minor,” whereby “we define the term ‘abuse’ . . .

in light of the age of the victim in question,” United States v.

Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009), and have

held that “[s]exual conduct with younger children is per se

abusive[,]” Valencia-Barragan, 608 F.3d at 1107.

“A statute should be construed so that effect is given to all

its provisions, so that no part will be inoperative or

superfluous, void or insignificant.” Corley v. United States,

556 U.S. 303, 314 (2009) (citations and quotation marks

omitted). This “basic interpretive canon[ ,]” id., applies to

the Sentencing Guidelines. See United States v. Wenner,

351 F.3d 969, 974–75 (9th Cir. 2003). Yet, when asked at

argument, the government could identify no circumstance in

which a “statutory rape” would not also be a “forcible sex

offense” under its interpretation. Nor can we. “It is our duty

to give effect, if possible, to every clause and word of a
10 UNITED STATES V. CACERES-OLLA

statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)

(citations and quotation marks omitted). We are “reluctan[t]

to treat . . . as surplusage,” id., the Guidelines’ enumeration

of statutory rape and sexual abuse of a minor as separate

crimes of violence.

Third, deeming as “forcible sex offenses” all sexual acts

with persons under the age of majority would ignore

contemporary limitations on the concept of statutory rape. In

particular, there has been a move among the states to reform

statutory rape laws in cases involving partners of a similar

age — for instance, foreclosing prosecutions of 16-year-olds

for heavy petting with 14-year-olds, or reducing sentences of

19-year-olds for sexual intercourse with 17-year-olds. See,

e.g., Charles A. Phipps, Misdirected Reform: On Regulating

Consensual Sexual Activity Between Teenagers, 12 Cornell

J.L. & Pub. Pol’y 373, 390–91 (2003). In recognition of this

growing consensus, we have held that, for federal purposes,

an age difference of at least four years is an element of

“sexual abuse of a minor,” Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1158 (9th Cir. 2008) (en banc), and of

“statutory rape” as well, United States v. Gomez, 732 F.3d

971, 988–89 (9th Cir. 2013).

Reading the term “forcible sex offenses” — which

requires no age difference — to encompass all sexual conduct

with minors, would obliterate those limitations. A so-called

“Romeo-and-Juliet offender[ ,]” Doe v. Mich. Dep’t of State

Police, 490 F.3d 491, 503 (6th Cir. 2007), could be deemed

to have been convicted of a “forcible sex offense” by virtue

of the victim’s age, despite being expressly and intentionally

excluded from the generic federal definitions of “statutory

rape” and “sexual abuse of a minor.”
UNITED STATES V. CACERES-OLLA 11

For these reasons, we hold that a conviction under section

800.04(4) is not categorically a “forcible sex offense.”

Our interpretation accords with that of the Fourth Circuit,

which recently addressed this issue in United States v.

Rangel-Castaneda, 709 F.3d 373, 376 (4th Cir. 2013)

(concerning Tennessee’s prohibition on “sexual penetration

. . . when the victim is at least thirteen (13) but less than

eighteen (18) years of age and the defendant is at least ten

(10) years older than the victim.”). “Reading the various

portions of the crime-of-violence enhancement in context,”

the Fourth Circuit concluded that “the Sentencing

Commission purposely juxtaposed the neighboring terms

‘forcible sex offense[ ]’ and ‘statutory rape,’ with the former

intended to connote rape or other qualifying conduct by

compulsion and the latter intended to connote rape on account

of the victim’s age.” Id. at 380. Further, the “Guidelines’

reference . . . to consent that is ‘not legally valid’ by virtue of

being ‘involuntary, incompetent, or coerced’ was intended

simply to clarify that the requisite compulsion need not be

physical in nature.” Id. (citing U.S.S.G. app. C, amend. 722,

at 302–03). Thus, “the fact that Tennessee law renders the

consent of a statutory rape victim formally irrelevant does not

mean that the offense necessarily requires sexual conduct that

is ‘forcible’ . . .—that is, involving actual compulsion.” Id.

Judge Tashima expressed a similar view in United States

v. Gonzalez-Aparicio, 663 F.3d 419, 437 n.5 (9th Cir. 2011)

(Tashima, J., dissenting) (concerningArizona’s statute which

criminalizes “sexual intercourse or oral sexual contact with
12 UNITED STATES V. CACERES-OLLA

any person who is under eighteen years of age”).

3

Responding to the same argument advanced by the

government here, Judge Tashima asked: “if statutory rape

crimes are ‘forcible sex offenses’ simply because the minor’s

consent is invalid under state law, then why does the

commentary list statutory rape separately?” Id. He

concluded that “[t]he parenthetical language” describing

invalid consent “does not target statutory rape[,]” because

such a reading “would render the term ‘statutory rape’

superfluous.” Id. (emphasis in original).

A conviction under section 800.04(4) is not categorically

a “forcible sex offense.” Nor is section 800.04(4) a “divisible

statute” with respect to the element of consent, for which the

modified categorical approach may be of “assist[ance] . . . in

identifying the defendant’s crime of conviction.” Descamps,

133 S. Ct. at 2285, 88.

We therefore proceed to consider the government’s

alternative argument.

B.

Caceres-Olla’s prior conviction does not qualify as a

“crime of violence” under Guideline 2L1.2(b)(1)(A)’s

“statutory rape” alternative. Gomez, 732 F.3d 988, held that

the generic definition of “statutory rape” includes “‘an age

difference of at least four years between the defendant and the

3 The Gonzalez-Aparicio majority held that defendant’s conviction

constituted “statutory rape” under the Guidelines, and thus did not reach

the question, addressed in Judge Tashima’s dissent, whether the

conviction separately constituted a “forcible sex offense.” Id. at 433 &

n.4.
UNITED STATES V. CACERES-OLLA 13

minor.’” Section 800.04(4) does not have an age difference

element. A conviction under section 800.04(4) is therefore

not categorically “statutory rape.” “Because the statute is

missing an element of the[] generic crime[], our inquiry ends

here—we do not undertake a modified categorical analysis.” 

Id. at 989.

III.

“As a general rule, when the district court errs in

sentencing, we should vacate and ‘remand for re-sentencing

on an open record — that is, without limitation on the

evidence that the district court may consider.’” 

Espinoza-Morales, 621 F.3d at 1152 (quoting United States

v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc)). 

“We may depart from this general rule, however, when

‘additional evidence would not [change] the outcome’ or

when ‘there was a failure of proof after a full inquiry into the

factual question at issue.’” Id. (alteration in original).

The government conceded at oral argument that it

produced all available judiciallynoticeable facts to support its

position that Caceres-Olla’s conviction constituted a “crime

of violence.” We therefore remand for resentencing on the

existing record.

VACATED AND REMANDED.

FERNANDEZ, Circuit Judge, concurring:

I concur in the result, but not in all of the reasoning of the

majority opinion. I concur in part I and in the portion of part
14 UNITED STATES V. CACERES-OLLA

II before IIA First. As to part IIA First (majority opinion at

pages 7 to 8), I do not agree. The guideline definition

indicates that it applies to forcible sex offenses, which

include those where “consent . . . is not legally valid.” USSG

§2L1.2, comment. (n.1(B)(iii)) (Nov. 2011). We have

declared that minors are “legally incapable of consent.”

Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006);

see also Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1154

(9th Cir. 2008) (en banc). As I see it, if a child is “legally

incapable of consent,” that child’s “consent . . . is not legally

valid,” and no amount of judicial sortilege will make it so.

That said, I do agree with the discussion in parts IIA

Second (majority opinion at pages 9 to 10, insofar as it

discusses statutory rape) and Third (majority opinion at page

10). Moreover, I agree with part IIB. See United States v.

Gomez, 732 F.3d 971, 987–89 (9th Cir. 2013). Finally,

because the government has conceded that it has no more

evidence to produce, I agree with part III.

Thus, I respectfully concur in the result.