FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10282 Plaintiff-Appellee,

D.C. No.

v. CR-04-01640-JMR

RUBEN BAZA-MARTINEZ, aka Ruben  District of Arizona,

Baza-Martines, Ruben Baza Tucson

Martinex, ORDER Defendant-Appellant. 

Filed March 6, 2007

Before: Betty B. Fletcher, Robert R. Beezer, and

Raymond C. Fisher, Circuit Judges.

Order;

Dissent by Judge Graber

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en

banc and Judges B. Fletcher and Beezer so recommend. 

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. 

The petition for panel rehearing and the petition for rehearing en banc are denied. 

2459
GRABER, Circuit Judge, with whom KOZINSKI,

O’SCANNLAIN, GOULD, TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from the

denial of rehearing en banc: 

I respectfully dissent from the court’s decision not to rehear

this case en banc. The test that the panel adopted in order to

decide whether a crime constitutes “sexual abuse of a minor”

fails to apply Supreme Court precedent and directly contradicts the law of this circuit. By applying an incorrect test, the

panel also reached a conclusion contrary to the holdings of

other circuits that have addressed the same issue applied to

the very same North Carolina criminal statute. 

Defendant Baza-Martinez was convicted of a felony under

North Carolina General Statute § 14-202.1, which criminalizes “taking indecent liberties with children.” In determining

whether this conviction categorically constituted “sexual

abuse of a minor” under U.S.S.G. § 2L1.2(b)(1)(A), application note 1(B)(iii), the panel stated that “the Ninth Circuit’s

definition of ‘sexual abuse of a minor,’ . . . requires psychological or physical injury to the victim.” United States v.

Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir. 2006). The

panel contrasted that victim-centered requirement with the

focus of the North Carolina statute on the perpetrator’s mens

rea. Id. at 1016. The panel relied in particular on State v.

McClees, 424 S.E.2d 687 (N.C. Ct. App. 1993), in which the

North Carolina Court of Appeals upheld the defendant’s conviction under the statute. Baza-Martinez, 464 F.3d at 1017. In

that case, a school’s headmaster had asked a young girl to try

on uniforms in his office, and he secretly videotaped her

undressing. McClees, 424 S.E.2d at 688. The panel in BazaMartinez emphasized the fact that “[t]he victim was made

aware of the videotape only after she was 21-years-old, and

therefore was not psychologically harmed until she was no

longer a minor”; thus, the panel reasoned, the North Carolina

statute did not meet the Ninth Circuit’s requirement of psy2460 UNITED STATES v. BAZA-MARTINEZ
chological or physical injury to the minor victim. 464 F.3d at

1017 (citation omitted). 

A. The Panel’s Test is Contrary to the Law of this Circuit.

Requiring self-perceived “psychological or physical injury

to the victim” as an element of “sexual abuse of a minor” contravenes recent Ninth Circuit precedent. We first addressed

what constitutes “sexual abuse of a minor” in United States v.

Baron-Medina, 187 F.3d 1144 (9th Cir. 1999). In that case,

we decided that a California statute categorically described

“sexual abuse of a minor” by examining the required act and

the mens rea of the perpetrator. Id. at 1147. Specifically, we

held that abuse is complete when a perpetrator’s act constitutes the use of young children for sexual gratification: “The

use of young children for the gratification of sexual desires

constitutes an abuse. . . . The use of young children as objects

of sexual gratification is corrupt, improper, and contrary to

good order. It constitutes maltreatment, no matter its form.”

Id. (emphasis added) (citations omitted). 

We also held that the effect on the victim is irrelevant.

“Even an innocuous touching, innocently and warmly

received” by the victim constitutes abuse “if effected with

lewd intent.” Id. (internal quotation marks omitted). Furthermore, we noted that the crime of sexual abuse of a minor was

complete even if the perpetrator “preys upon a child too

young to understand the nature of his advances.” Id. BaronMedina’s holding that the effect on the minor victim is wholly

irrelevant cannot be reconciled with the panel’s conclusion in

Baza-Martinez that self-perceived psychological or physical

injury to the minor victim is required and is, indeed, “the

touchstone of ‘abuse.’ ”

1

 464 F.3d at 1016. 

1Nor have more recent cases altered this analysis. In United States v.

Pallares-Galan, 359 F.3d 1088, 1102 (9th Cir. 2004), we held that a misdemeanor statute covering “objectively annoying conduct” was not categorically “sexual abuse of a minor” because the conduct of the perpetrator

UNITED STATES v. BAZA-MARTINEZ 2461
An analogy may be helpful to understand why the viewpoint of the victim is not the touchstone of the Sentencing

Guidelines. An assassin who intentionally fires a pistol at a

person with the intent to kill, but misses and hits a tree

instead, is guilty of attempted murder. The would-be assassin

is guilty of attempted murder even if the intended victim

never realizes that his life was placed in jeopardy. And the

would-be assassin committed a crime of violence even if the

victim remained unscathed psychologically as well as physically. The criminal law’s focus and the Guidelines’ focus is

on the act and the mens rea of the perpetrator and not on the

awareness or state of mind of the victim. As we recognized

in Baron-Medina, this principle applies with particular force

when the victims may be “too young to understand the

nature” of the perpetrator’s acts. 187 F.3d at 1147. Just as an

assassin is guilty of attempted murder even if the victim

remains unaware of the attempt on his life, a sexual abuser is

guilty of “sexual abuse of a minor” even if he chooses very

young victims, molests sleeping children, or otherwise conceals his lewd intent from the victims. 

B. The Panel’s Opinion is Contrary to the Holdings of

Other Circuits. 

Two other circuits have addressed whether the very same

statute, North Carolina General Statute § 14-202.1, constitutes

“sexual abuse of a minor.” Both circuits have said “yes,” the

opposite conclusion as the panel in Baza-Martinez. See

United States v. Izaguirre-Flores, 405 F.3d 270, 277 (5th Cir.)

(per curiam) (holding that a violation of N.C. Gen. Stat. § 14-

required by the statute was insignificant. See id. (“In sum, the first inquiry

we make in determining whether the Taylor categorical approach applies

is whether the conduct covered by the California statute falls within the

commonplace meaning of ‘sexual abuse.’ ”). In United States v. LopezSolis, 447 F.3d 1201, 1209 (9th Cir. 2006), we recognized that the conduct

of the perpetrator could be either “physically or psychologically abusive,”

but we did not adopt a test that requires perceived injury to the victim. 

2462 UNITED STATES v. BAZA-MARTINEZ
202.1 constitutes “sexual abuse of a minor”), cert. denied, 126

S. Ct. 253 (2005); Bahar v. Ashcroft, 264 F.3d 1309, 1313

(11th Cir. 2001) (per curiam) (accepting the Board of Immigration Appeals’ conclusion that the term “sexual abuse of a

minor” encompasses N.C. Gen. Stat. § 14-202.1). 

The panel dismissed the conclusions of those circuits in

part because they were “focusing on the wrong issue.” BazaMartinez, 464 F.3d at 1017. The panel reasoned that the other

circuits’ focus on the act and the mens rea of the perpetrator,

rather than on the perceived injury to the minor victim, was

misplaced. Id. But a focus on the act and the mens rea is precisely the focus required by this court in Baron-Medina. In

fact, in its analysis, the Fifth Circuit expressly relied on our

premise in Baron-Medina that “ ‘[t]he use of young children

for the gratification of sexual desires constitutes an abuse.’ ”

Izaguirre-Flores, 405 F.3d at 275 & n.25 (quoting BaronMedina, 187 F.3d at 1147). In short, after reconstructing our

definition of “sexual abuse of a minor” to require perceived

injury to the victim, the panel then faulted other circuits for

failing to consider injury to the victim—even though one of

these circuits expressly relied on our earlier definition of the

term to exclude from the analysis the victim’s perception of

harm. 

C. The Panel Failed to Follow Binding Supreme Court

Precedent. 

The Supreme Court of the United States recently clarified

the categorical approach of Taylor v. United States, 495 U.S.

575 (1990). In Gonzales v. Duenas-Alvarez, 127 S. Ct. 815,

822 (2007), the Court explained that a Taylor categorical

analysis “requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that

falls outside the generic definition of a crime.” The panel’s

opinion pre-dated Duenas-Alvarez and so, of course, could

not have taken it into account. But the court sitting en banc

UNITED STATES v. BAZA-MARTINEZ 2463
could. Applying Duenas-Alvarez demonstrates clearly that the

North Carolina statute criminalizes “sexual abuse of a minor.”

Section 14-202.1 has been on the books for decades, and

the North Carolina appellate courts have applied this statute

well over one hundred times. None of these cases supports the

conclusion that section 14-202.1 criminalizes behavior that is

not “sexual abuse of a minor.” Even a cursory review of the

vast store of precedent reveals that section 14-202.1 is routinely applied to horrendous facts that indisputably constitute

“sexual abuse of a minor.”

2

 The panel’s opinion admitted that

“[c]ertainly some of the conduct criminalized by this statute

would fall under our court’s definition of ‘sexual abuse of a

minor.’ E.g., State v. Laney, 631 S.E.2d 522, 522 (N.C. Ct.

App. 2006) (describing how defendant awoke the victim in

her bed, touched her breasts, put his hand under the waistband

of her pants, and then touched her through her pants).” BazaMartinez, 464 F.3d at 1016. The opinion overlooked the vast

bulk of precedent, however, and relied on the facts of a single

case, McClees. Id. at 1017. 

It is no longer valid to sift through considerably more than

one hundred cases and rely on a single case (decided by the

state court of appeals more than a decade ago) that arguably

falls outside the federal definition of the crime. In DuenasAlvarez, the Supreme Court reversed our holding that “ ‘aiding and abetting’ a theft [under California law] is not itself a

crime that falls within the generic definition of theft [under

federal law].” 127 S. Ct. at 820. The Court then examined the

petitioner’s additional argument that the California theft statute was applied more broadly than the generic definition of

2

It is impracticable to summarize each reported case, but the most recent

and one of the earliest are indicative. See State v. Hammett, 637 S.E.2d

518, 520 (N.C. 2006) (describing how the defendant molested his 13-yearold daughter by “inter alia, fondling her breasts, putting his tongue into her

vagina, shaving her pubic hair, [and] having her wash his genitals”); State

v. Simpson, 276 S.E.2d 361, 362 (N.C. 1981) (describing how the 40-yearold defendant performed oral sex on two sisters aged less than 12). 

2464 UNITED STATES v. BAZA-MARTINEZ
theft. Id. at 820-22. In doing so, the Court clarified the Taylor categorical approach: 

Moreover, in our view, to find that a state statute

creates a crime outside the generic definition of a

listed crime in a federal statute requires more than

the application of legal imagination to a state statute’s language. It requires a realistic probability, not

a theoretical possibility, that the State would apply

its statute to conduct that falls outside the generic

definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute

was so applied in his own case. But he must at least

point to his own case or other cases in which the

state courts in fact did apply the statute in the special

(nongeneric) manner for which he argues. 

Id. at 822. 

The petitioner in Duenas-Alvarez did in fact point to cases

in which the California courts allegedly applied a broader

conception of “intent” than the concept contained in the

generic definition of theft. Concerning one case in particular,

the Court conceded that the California court “applied a more

expansive concept of ‘motive’ or ‘intent’ than did the courts

in [other cases],” but was unpersuaded that this lone case was

enough: “[W]e cannot say that those concepts as used in any

of these cases extend significantly beyond the concept as set

forth in the cases of other States.” Id.

In Baza-Martinez, the panel relied on a single case that

arguably “applied a more expansive concept” of abuse, but

this lone case does not “extend significantly beyond” the

generic definition of “sexual abuse of a minor.”

3

 Accordingly,

3

In reaching its conclusion that the defendant’s conduct was a violation

of section 14-202.1, the McClees court considered “the enhanced power

and control that adults . . . may exercise over children who are outside the

UNITED STATES v. BAZA-MARTINEZ 2465
as Duenas-Alvarez makes clear, the panel’s reliance on this

lone case is insufficient; there is no “realistic probability” that

Defendant Baza-Martinez was convicted of conduct not

amounting to sexual abuse of a minor. 

In conclusion, the panel’s opinion, in analyzing whether a

state crime constitutes “sexual abuse of a minor,” created a

new requirement that the minor victim perceive harm, a

requirement that contradicts our own precedent. Application

of this new requirement led the panel to a decision directly

contradictory to the holdings of two other circuits that have

addressed the identical state statute—a particularly ironic

result, as one of the other circuits relied on the earlier Ninth

Circuit precedent that the panel declined to apply. Finally,

even assuming that the panel did not err in establishing this

new element, its opinion runs afoul of the Supreme Court’s

recent guidance on the Taylor categorical approach. In more

than a hundred published cases covering more than two decades, there is only a single case that arguably supports a conclusion that the state statute criminalizes behavior not meeting

protection of home or school” and the fact that the “defendant took advantage of an authoritative position of trust.” Id. at 690 (internal quotation

marks omitted). 

The panel’s opinion also stated that “the North Carolina courts have

been explicit in holding that ‘mere words’ may constitute taking an indecent liberty with a child. [State v. Every, 578 S.E.2d 642, 647 (N.C. Ct.

App. 2003)].” Baza-Martinez, 464 F.3d at 1016. But the North Carolina

court used the term “mere words” only in criticism of the defendant’s

characterization of the facts. See Every, 578 S.E.2d at 647 (“Defendant

first contends that the utterance of ‘mere words,’ no matter how reprehensible, does not constitute the taking of an indecent liberty with a child. We

disagree.”). The “mere words” in Every included sexually explicit phrases

such as how the defendant wanted to “get together with [the victim] at

some point to . . . f—k [her]” and have her “suck his c—k.” Id. at 646.

These “mere words” were said by the 40-something defendant to a young

teenage victim during numerous phone conversations over the course of

several months, during which the defendant masturbated and encouraged

the victim to do the same. Id. at 645-46. 

2466 UNITED STATES v. BAZA-MARTINEZ
the panel’s new requirement. For these reasons, I dissent from

the court’s failure to rehear this case en banc. 

UNITED STATES v. BAZA-MARTINEZ 2467


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