FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FACUNDO ACOSTA-CHAVEZ,

Defendant-Appellant.

No. 12-10324

D.C. No.

4:11-cr-04125-

CKJ-DTF-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

June 13, 2013—San Francisco, California

Filed August 14, 2013

Before: A. Wallace Tashima and Jay S. Bybee, Circuit

Judges, and Kimba M. Wood, Senior District Judge.*

Opinion by Judge Wood

* The Honorable Kimba M. Wood, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.
2 UNITED STATES V. ACOSTA-CHAVEZ

SUMMARY**

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which the district court applied

a sixteen-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based on the defendant’s prior Illinois

conviction for Aggravated Criminal Sexual Abuse.

The panel held that because the Illinois statute’s

definition of a minor is broader than that contained in its

generic federal analogue, a violation of 720 Ill. Comp.

Stat. 5/11-0.1 cannot qualify under the categorical approach

as a “forcible sex offense” supporting a crime-of-violence

enhancement under § 2L1.2(b)(1)(A)(ii). Applying

Descamps v. United States, 133 S. Ct .2276 (2013), the panel

held that because the age element in the Illinois statute is not

divisible, the panel may not apply the modified categorical

approach. 

The panel held that the error was not harmless, and

declined to remand the case to a different judge for

resentencing. 

** 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. ACOSTA-CHAVEZ 3

COUNSEL

David W. Basham, Law Office of David W. Basham, Tucson,

Arizona, for Defendant-Appellant.

Erica L. Seger, Assistant United States Attorney, United

States Attorney’s Office, Tucson, Arizona, for PlaintiffAppellee.

OPINION

WOOD, Senior District Judge:

Facundo Acosta-Chavez appeals his thirty-month

sentence of imprisonment for illegal reentryafter deportation. 

Acosta-Chavez contends that the district court erred in

deeming his 2005 Illinois conviction for Aggravated Criminal

Sexual Abuse a “crime of violence” under United States

Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), which mandates

a sixteen-level enhancement of his Sentencing Guidelines

level. Acosta-Chavez contends that the alleged error was not

harmless. He also seeks remand to a different district judge

for resentencing.

Applying the Supreme Court’s recent decision in

Descamps v. United States, 133 S. Ct. 2276 (2013), we

conclude that the district court erred in holding AcostaChavez’s crime to be a “crime of violence,” an error that

resulted from the district court’s application of the modified

categorical approach when it compared the elements of

Acosta-Chavez’s offense with the elements of its federal

analogue. This error was not harmless. We vacate Acosta-
4 UNITED STATES V. ACOSTA-CHAVEZ

Chavez’s sentence, and remand to the original district judge

for resentencing.

I

Following his 2005 guilty plea to Illinois Aggravated

Criminal Sexual Abuse, Acosta-Chavez was removed from

the country. He reentered illegally in 2011 and was arrested

in Arizona. On December 14, 2011, Acosta-Chavez was

indicted for illegal reentry after deportation, in violation of

8 U.S.C. § 1326(a). On March 28, 2012, he pled guilty

without a plea agreement.

At sentencing, the district court calculated the applicable

United States Sentencing Guidelines (“Guidelines”) range to

be forty-six to fifty-seven months. The court based this

determination on its conclusion that Acosta-Chavez’s 2005

Illinois conviction qualified as a “crime of violence,”

resulting in a sixteen-level enhancement. See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The court held, however, that despite

the seriousness of Acosta-Chavez’s 2005 Illinois conviction,

the forty-six to fifty-seven month Guidelines range

“overstate[d]the nature of that particular conviction,” making

a below-Guidelines sentence more appropriate. After

evaluating the statutory sentencing factors, the court imposed

a sentence of thirty months imprisonment.

Acosta-Chavez’s 2005 Illinois conviction arose from

conduct that occurred in 2001. The Criminal Indictment,

filed in Illinois state court, charged that on February 20, 2001,

twenty-three year old Acosta-Chavez “knowingly committed

an act of sexual conduct with [the victim], who was at least

13 years of age but under 17 years of age, in that [AcostaChavez] placed his hand on the breast of [the victim] and
UNITED STATES V. ACOSTA-CHAVEZ 5

[Acosta-Chavez] was at least five years older than [the

victim]” in violation of chapter 720, section 5/12-16(d) of the

Illinois Compiled Statutes. This provision defines

Aggravated Criminal Sexual Abuse as “an act of sexual

penetration or sexual conduct with a victim who was at least

13 years of age but under 17 years of age and the accused was

at least 5 years older than the victim.” 720 Ill. Comp. Stat.

5/11-1.60. Illinois law defines “sexual conduct” as “any

intentional or knowing touching or fondling by the victim or

the accused, either directly or through clothing, of the sex

organs, anus or breast of the victim or the accused . . . for the

purpose of sexual gratification or arousal of the victim or the

accused.” 720 Ill. Comp. Stat. 5/11-0.1.1

On February 22, 2005, Acosta-Chavez, then age twentyseven, appeared in Illinois state court for a change of plea

hearing.

2 At the hearing, Acosta-Chavez, represented by

counsel, pled guilty to Aggravated Criminal Sexual Abuse, in

violation of 720 Ill. Comp. Stat. 5/11-1.60(d). AcostaChavez confirmed that he understood the nature of the

charges and acknowledged that he had engaged in “physical

conduct with a young girl.” The prosecutor provided the

following factual basis for the plea:

Judge, if witnesses were called and exhibits

introduced, we would show that [the victim]

1 At the time of Acosta-Chavez’s conduct and indictment, sections 5/11-

1.60(d) and 5/11.0.1, were numbered 5/12-16(d) and 5/12-12(e).

2 After initially pleading not guilty, Acosta-Chavez failed to appear and

a warrant was issued for his arrest. On January 10, 2005, U.S. Border

Patrol agents in Arizona detained Acosta-Chavez and extradited him to

Illinois.
6 UNITED STATES V. ACOSTA-CHAVEZ

was born on January 31, 1987; we would

show [that Acosta-Chavez] was born on

November 27, 1977. We would show that

sometime around February 20, 2001, the

Defendant knowingly placed his hands on the

breasts of [the victim], and the Defendant was

more than five (5) years older than [the

victim] and he did this for purposes of sexual

arousal of himself and [the victim].

Defense counsel agreed with this statement of facts. The

Illinois court accepted this factual basis for the plea,

concluded that the plea was knowing and voluntary, and

imposed a sentence of three months imprisonment, to be

followed by three years probation. Acosta-Chavez was

subsequently removed from the country.

As noted, Acosta-Chavez was then re-arrested in 2011,

leading to his instant conviction for illegal reentry.

II

Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant

convicted of illegal reentry receives a sixteen-level

sentencing enhancement if the defendant “previously was

deported, or unlawfully remained in the United States, after

. . . a conviction for a felony that is . . . a crime of violence.” 

There is no dispute that Acosta-Chavez was previously

deported. The Guidelines Commentary states that a “crime

of violence” includes any of the following offenses under

federal, state, or local law:

Murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses
UNITED STATES V. ACOSTA-CHAVEZ 7

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

(2012); see also United States v. Rodriguez-Guzman,

506 F.3d 738, 741 (9th Cir. 2007).

The Government argued before the district court that

Acosta-Chavez’s Illinois crime constituted a “crime of

violence” because it qualified as both “sexual abuse of a

minor” and a “forcible sex offense.” See U.S.S.G. § 2L1.2

cmt. n.1(B)(iii) (2012). Acosta-Chavez objected. The district

court ultimately adopted the Government’s view, finding that

the offense was both sexual abuse of a minor and a forcible

sex offense.

On appeal, however, the Government abandons its

position that Acosta-Chavez’s Illinois offense constitutes

sexual abuse of a minor. Accordingly, the sole issue before

this Court is whether Acosta-Chavez’s Illinois offense should

be deemed a forcible sex offense and therefore a “crime a

violence.” This Court reviews this question de novo. United

States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009).
8 UNITED STATES V. ACOSTA-CHAVEZ

III

A

In order to determine whether a crime qualifies as a

“crime of violence,” courts apply the framework established

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)

(internal quotation marks omitted). If the statute of

conviction “sweeps more broadly than the generic crime, a

conviction under that law cannot [categorically] count as [a

qualifying] predicate, even if the defendant actually

committed the offense in its generic form.” Descamps,

133 S. Ct. at 2283.

Where the categorical approach is not determinative, the

sentencing court may, in a “narrow range of cases,” apply a

“modified categorical approach.” See id. at 2283 (discussing

Taylor, 495 U.S. at 602). In Descamps, the Supreme Court

clarified the proper application of the modified categorical

approach.3 Before a sentencing court may use this approach,

it must first determine that the defendant was convicted of

violating a “divisible statute.” Id. at 2285 (emphasis added). 

A “divisible statute,” the Court explained, is one that “sets out

one or more elements of the offense in the alternative” or

3 Descamps applies to this case because the Supreme Court issued its

decision while this case was “pending on direct review.” Griffith v.

Kentucky, 479 U.S. 314, 328 (1987).
UNITED STATES V. ACOSTA-CHAVEZ 9

“comprises multiple, alternative versions of the crime.” Id.

at 2281, 2284. The modified categorical approach may be

used only when one of those alternatives is an element of the

generic offense, and another is not. In these narrow

circumstances, the sentencing court may “consult a limited

class of documents, such as indictments and jury instructions,

to determine which alternative formed the basis of the

defendant’s prior conviction.” Id. at 2281. “The court can

then do what the categorical approach demands: compare the

elements of the crime of conviction . . . with the elements of

the generic crime.” Id.

B

In order to apply either approach, we must ascertain the

generic federal definition of “forcible sex offense.” Although

we have never comprehensively defined this crime, we have

instructed that the term should be defined with reference to its

“ordinary, contemporary, and common meaning.” United

States v. Bolanos-Hernandez, 492 F.3d 1140, 1143–44 (9th

Cir. 2007). The parties’ arguments in this case focus on

whether Acosta-Chavez’s offense conduct qualifies as

“forcible.” The Government contends that sexual offenses

involving minors are inherently forcible because minors

cannot give “legally valid” consent. See U.S.S.G. § 2L1.2

App. n.1(B)(iii); see also United States v. Gallegos-Galindo,

704 F.3d 1269, 1272 (9th Cir. 2013). Acosta-Chavez

counters that legally invalid consent based on the victim’s age

does not automatically render a sex offense forcible.

C

We need not decide that issue, however, because even

assuming that sex offenses involving minors are inherently
10 UNITED STATES V. ACOSTA-CHAVEZ

forcible, we conclude that the age element contained in the

Illinois statute under which Acosta-Chavez was convicted

includes as minors, persons who are not minors under federal

law, and does so in a way that is indivisible. Because of this,

Acosta-Chavez’s conviction cannot count as a forcible sex

offense, “even if [he] actually committed the offense in its

generic form.” Descamps, 133 S. Ct. at 2283. We reach this

conclusion under the categorical approach. We also conclude

that the modified categorical approach is unavailable to us.

First, under the categorical approach,4 we find that one

element of the Illinois law—its definition of a minor—is

broader than that contained in its generic federal analogue. 

See Valencia-Barragan, 608 F.3d at 1107. The Illinois

statute designates as minors those who are “at least 13 years

of age but under 17 years of age,” 720 Ill. Comp. Stat. 5/11-

1.60 (emphasis added), whereas the federal definition of a

minor is someone under sixteen years of age, see United

States v. Gonzalez-Aparicio, 663 F.3d 419, 432 (9th Cir.

2011); see also Rodriguez-Guzman, 506 F.3d at 743–46

(examining a variety of sources, including the Model Penal

Code, state statutes, and federal statutes to determine “that the

term ‘minor’ in the context of a statutory rape law means a

person under sixteen years of age”). The crime as defined in

Illinois thus “sweeps more broadly than the generic crime,”

4 Although the Government’s arguments on appeal focus on the

modified categorical approach, it is appropriate for us to begin with a

discussion of the categorical approach given that “the modified approach

merely helps implement the categorical approach when a defendant was

convicted of violating a divisible statute.” Descamps, 133 S. Ct. at 2285;

see also Gallegos-Galindo, 704 F.3d at 1273 (noting this Court may reach

the question of whether a crime is categorically a “cime of violence”

although the Government does not address the point).
UNITED STATES V. ACOSTA-CHAVEZ 11

Descamps, 133 S. Ct. at 2283, and cannot qualify

categorically as a forcible sex offense.

With the categorical approach unavailing, the

Government asks us to resort to the modified categorical

approach. Applying the Supreme Court’s instruction in

Descamps, however, we conclude that the age element

contained in the relevant Illinois statute is not divisible, and,

thus, we may not apply the modified categorical approach.

The Illinois statute’s age element is stated as a range—“at

least 13 years of age but under 17 years of age.” 720 Ill.

Comp. Stat. 5/11-1.60. The statutory language is therefore

not written in a manner that defines this element

“alternatively, with one statutory phrase corresponding to the

generic crime and another not.”5 Descamps, 133 S. Ct. at

2286. Although the statute “implies” a sequence of ages, the

Descamps Court expressly prohibited sentencing courts from

“hypothetically reconceiv[ing] such a statute in divisible

terms.” Id. at 2290. The Supreme Court clearly stated that

divisibility exists only when an element of the crime of

conviction contains alternatives, one of which is an element

of its federal analogue. Id. at 2283–84. The Illinois statute

at issue in this case does not meet this criterion, and we thus

may not resort to the modified categorical approach.

Acosta-Chavez’s prior conviction therefore does not

qualify as a forcible sex offense. Accordingly, we conclude

that the district court erred in applying the “crime of

violence” enhancement.

5

If, for example, the statute defined a minor as a person “14, 15, 16, or

17 years of age,” the statute’s age element would be divisible.
12 UNITED STATES V. ACOSTA-CHAVEZ

IV

Having concluded that the District Court erred in applying

the sixteen-level “crime of violence” enhancement, we must

next consider the Government’s argument that this error was

harmless.

“A district court must start with the recommended

Guidelines sentence, adjust upward or downward from that

point, and justify the extent of the departure from the

Guidelines sentence.” United States v. Munoz-Camarena,

631 F.3d 1028, 1030 (9th Cir. 2011). Although a district

court commits procedural error by miscalculating the

applicable Guidelines range, United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc), such errors may be

harmless, United States v. Ali, 620 F.3d 1062, 1074 (9th Cir.

2010). The burden is on the Government to establish that

such an error was harmless. United States v. Beng-Salazar,

452 F.3d 1088, 1096 (9th Cir. 2006).

In this case, the Government contends that the district

court’s statements at sentencing render any error harmless. 

Although the district court calculated the enhanced

Guidelines range to be forty-six to fifty-seven months, the

court found that this “range overstate[d] the nature of that

particular conviction,” warranting a below-Guidelines

sentence of thirty months. After imposing the sentence, the

district court stated that it would have imposed the same

sentence even had it found the correct (unenhanced)

Guidelines range to be eight to fourteen months. The district

court stated that a sentence within the unenhanced Guidelines

range “would not sufficiently address the statutory factors of

sentencing, particularly given the nature of the prior
UNITED STATES V. ACOSTA-CHAVEZ 13

conviction, the fact that it’s a sex crime involving a minor

child.”

The Government has not met its burden of demonstrating

that the district court’s incorrect application of the “crime of

violence” enhancement was harmless. We have clearlystated

that a district judge’s “mere statement that it would impose

the same above-Guidelines sentence no matter what the

correct calculation cannot, without more, insulate the

sentence from remand.” Munoz-Camarena, 631 F.3d at 1031. 

Importantly, “[t]he court must explain, among other things,

the reason for the extent of a variance. The extent necessarily

is different when the range is different, so a one-size-fits-all

explanation ordinarily does not suffice.” Id. (citing Carty,

520 F.3d at 991–92).

The district court’s alternative explanation in this case

does not explain the “extent” of the variance from the

nonenhanced Guidelines range. Rather, the district court

simply stated that a thirty-month sentence “adequately and

fairly addresses all of the statutory factors of sentencing.” 

These statements do not render the district court’s erroneous

imposition of a sixteen-level sentencing enhancement

harmless. See United States v. Leal-Vega, 680 F.3d 1160,

1169–70 (9th Cir. 2012).

V

Finally, Acosta-Chavez requests remand to a different

sentencing judge because the original district judge stated that

she would impose the same thirty-month sentence even

absent the “crime of violence” enhancement. We decline to

do so.
14 UNITED STATES V. ACOSTA-CHAVEZ

This Court’s “general rule” is that “[a]bsent unusual

circumstances, resentencing is to be done by the original

sentencing judge.” United States v. Waknine, 543 F.3d 546,

560 (9th Cir. 2008) (internal quotation marks omitted). 

Absent any allegations of bias, we consider the following

three factors in determiningwhether “unusual circumstances”

exist:

(1) whether the original judge would

reasonably be expected upon remand to have

substantial difficulty in putting out of his or

her mind previously expressed views or

findings determined to be erroneous or based

on evidence that must be rejected, (2) whether

reassignment is advisable to preserve the

appearance of justice, and (3) whether

reassignment would entail waste and

duplication out of proportion to any gain in

preserving appearance of fairness.

United States v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)

(quoting United States v. Mikaelian, 168 F.3d 380, 387,

amended, 180 F.3d 1091 (9th Cir. 1999)). Acosta-Chavez

relies on the second factor, contending that reassignment is

advisable to preserve the appearance of justice.

We see no reason to depart from our general rule in this

case. When the district court sentenced Acosta-Chavez, it did

so in accordance with then-applicable Ninth Circuit law

concerning the proper application of the modified categorical

approach. Well after the district court issued its sentence, the

Supreme Court decided Descamps, which specifically

disapproved of this Circuit’s use of the modified categorical

approach. See Descamps, 133 S. Ct. at 2286–91. Under
UNITED STATES V. ACOSTA-CHAVEZ 15

these circumstances, there is no reason to believe that the

capable district court judge will not follow the law on

remand. Accordingly, we decline to exercise our discretion

to reassign this matter.

VI

The district court erred in applying the modified

categorical approach to determine that Acosta-Chavez’s

Illinois conviction qualifies as a “crime of violence.” This

error was not harmless.

REVERSED and REMANDED.