F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee ,

v

.
F A C U N D O A C O S T A -C H A

V E Z , Defendant-Appellant

. N o. 12-10324

D.C. No. 4:11-cr-04125- CKJ -DTF -1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Cindy K. J o r g enson, District J udg e, Presiding
Arg ued and Submitted J une 13, 2013—San F rancisco, California

F iled Aug ust 14, 2013

B efore: A. W a llace Tashima and J ay S. B y bee, Circuit J udg es, and Kimba M. W ood, Senior District J u dg e. *

Opinion by

J udg e W ood

* T h e Ho n o rab le K im

b a M. W o o d , Sen io r District J u d g e f o r th e U

. S

. District Co u rt f

o r th e S o u t

h ern District o f New Yo rk , sitti n g b y d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

T h e panel vacated a sentence and remanded fo r
r e s e ntencing in a case in which the district court a pplied

a s i x t e e n
- l e v e l e n h a n c e m e n t u n d e r U

. S

. S

. G

. § 2L 1.2(b)(1)(A)(ii) based o n the d e f endant’ s prior I llinois conviction for Ag g r avated Criminal Sex ual Abuse.

The panel held that because the I llinoi s statute’s definiti on of a minor is broader than that contained in its g eneric federal analog ue , a violation of 720 I ll. Comp. Stat. 5/11-0.1 c a n not qualify under the categ orical approach

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

- v i olence enhancement under § 2L 1 .2( b )(1)(A)(ii). Apply ing Descamps v. United States , 133 S. Ct .2276 (2013), the panel held that because the ag e element in the I llinois statute is not divisible, the panel may not a pply the modifie d categ orical approach.

The panel held that the error w a s not harmless, a nd declined to remand th e c a se to a d ifferent judg e for resentencing

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

David W

. B asham, L a

w O ffice of David W. B asham, Tucson, Ariz ona, for Defendant-Appellant.

E r i c a L

. Seg er, Assistant United States Attorney , United States A ttorney ’s Office, T u cson, Ariz ona, for PlaintiffAppellee.

OP INION

W O OD, Senior District J udg e:

F acundo Acosta-Chavez appeal s his thirty -month sentence of imprisonment for illeg a l reentry after deportation. Acosta-Chavez contends that the distric t c o u rt erred in d e e ming his 2005 I llinois conviction for Ag g ravated Crimina l S e x ual Abuse a “crime of violence” under United States Sentencing Guidelines § 2L 1.2(b)(1)(A)(ii), which mandates

a six teen-level enhancement o f his Sentencing Guidel i n e s level. Acosta-Chavez contends that the alleg ed error was not harmless. He also seeks remand t o a different district judg e for resentencing

. Apply ing t he Supreme Court’s recent decision in Descamps v. United States , 1 3 3 S. Ct. 2276 (2013), we
c onclude that the district court erred in holding Acos t a
C h a v e z ’s crime to be a “crime of v iolence,” an e rror th at resulted from the district court’s application of the modified categ orica l approach when it compared the elements o f Acosta-Chavez ’s o ffense w ith the elements of its federal analog ue. This error was not ha r m l e s s

. W e vacate Acosta-U N I T E D S T A T E S V

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Chavez ’s sentence, and remand to the orig inal district judg e for resentencing

.
I

F ollowing his 2005 g uilty plea to I llinois A gg ravated C r iminal Sex ual Abuse, Acosta-Chavez was removed f r o m the country

. He reentered illeg ally in 2011 and was arrested in Ar iz o na. On December 14, 2011, Acosta-Chavez was indicted for illeg al reentry a fter deportation, i n v i olation o f 8 U .S.C. § 1326(a). O n March 28, 2012, he pl ed guilty without a plea ag reement.

At sentencing , the district court calculated the applicable United States Sentencing Guidelines (“Guidelines”) rang e to be f orty -six to fifty -seven months. The court based this determination on its c o nclusion that A c o sta-Chavez ’s 2005 I llinois conviction qualified as a “c r i m e of v iolence,” resulting in a six teen-level e nhancement. See U.S.S.G. § 2L 1 .2(b)(1)(A)(ii). The court held, how ever, that despite the seriousness of Acosta-Chavez ’s 2005 I llinois conviction, the forty -s i x to fifty -seven month Guidelines r ang e “overstate[ d] the nature of th a t particular conviction,” making

a below-Guidel ines sentence more appropriate. After evaluating the statutory sentencing factors, the court imposed a sentence of thirty

months imprisonment.

Acosta-Chavez ’s 2 005 I llinois conviction arose from conduct that o c c urred in 2001. The Criminal I ndictment, filed in I llinois state court, charg ed that o n F ebruary 20, 2001, twenty -three y ear old Acosta-Chavez “ knowing ly committed

an act o f sex ual conduct with [ the victim] , w h o was at least 1 3 y e a r s of a g e but under 17 y ears of a g e, in that [AcostaChavez ] placed his h and on the breast of [ the victim] a ndU N I T E D S T A T E S V

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[ Acosta -Chavez ] was at least five y ears older than [ the victim] ” in v iolation of chapter 720, section 5/12-16(d) o f the I llinois Compiled S t a tutes. This provision defines Ag g r avated Criminal Sex ua l Abuse as “an act of sex ual penetration or sex ual conduct with a victim who was at least 13 y ears o f a g e but u nder 17 y ears of ag e and the accused was at least 5 y ears older than the victim.” 720 I l l

. Comp. Stat. 5/11-1.60. I llinois law de f i nes “sex ual conduct” as “any intentional or knowing touching or fondling by the victim o r the accused, either directly or throug h clothing , o f the sex org ans, anus o r breast o f the victim o r the accused

. . . f or the purpose o f sex ual g ratification or arousal of the victim or the accused.” 720 I ll. Comp. Stat. 5/11-0.1. 1

On F ebruary 22, 2005, Acosta-Chavez , then ag e twenty

se ven, appeared in I llinois state court for a chang e o f plea hearing

. 2 A t the h earing , Acosta-Chave z , represented b y counsel, pled g uilty to Ag g r avated Criminal Sex ual Abuse, in violation o f 720 I ll. Comp. Stat. 5/11- 1

. 60(d). AcostaChavez con f

irmed that he understood the nature of the charg es and acknowledg ed that h e had eng ag ed in “phy sical conduct with a y oung g irl.” The p rosecutor prov i d ed the following factual basis for the plea:

J udg e , if witness es were c alled and ex hibits introd uced, we would show that [ the victim]

1 A t th e tim e o f A co sta- Ch av ez’ s co n d u ct an d in d ictm en t, sectio n s 5 / 11

- 1 .6 0 (d ) an d 5 /1 1 .0 .1 , w ere n u m b ered 5 /1 2

- 16 (d ) an d 5 /1 2

- 1 2 (e).

2 A f ter in itially plead in g n o t g u ilty , A co sta- Ch av ez f ailed t o ap p ear an d

a w arran t w as issu ed f

o r h is arrest. On J an

u ary 1 0 , 2 0 0 5 , U.S

. B o r d er P atro l ag en ts in A r izo n a d etain ed A co sta- C h av ez an d ex trad ited h im to Illin o is.U N I T E D S T A T E S V

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w as born on J anuary 31, 1 987; we wo u l d show [ that A costa-Chavez ] was born on N o v e m ber 2 7, 1977. W e would show tha t sometime around F ebruary 20, 2001, the Defendant knowing ly placed his hands on the breasts of [ the victim] , and the Defendant was
more th a n f

i ve (5) y ears older than [ the victim] and he did this for p urposes of sex ual arousal of himself and [ the victim]

.
Defense counsel ag reed with th i s s t atement of f a cts. The I llinois court accepted this f actual b asis for the plea, concl u d ed that the plea w as knowing and voluntary , a nd imposed a sentence of three months imprisonment, to be followed b y three y e ar s probation. A costa-Chavez was subsequently

removed from the country

.
As noted, Acosta-Chavez was then re-arrested i n 2011, leading to his instant conviction for illeg al reentry

.
II

Und e r U .S.S.G. § 2L 1.2(b)(1)(A)(ii), a defendant convicted of illeg al r eentry receives a six tee n
- l evel sentencing enhanc ement if the defendant “previously was deported, or unlawfully r emained in the United States, a fter

. . . a conviction for a felony that is . . . a crime of v iolence.” There is n o dispute that Acosta-Chavez was previously deported. The Guidelines Commentary states that a “ crime of violence” includes any of the following offens e s u nder federal, state, or local law:

M u r d e r , m a n s l a u g h t e r , k i d n a p p i n g , ag g r avated assault, forcible sex o ffensesU N I T E D S T A T E S V

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(including where consent to the c onduct is not g ive n or is not leg ally valid, such as where

c o n sent to the conduct is involuntary , incompetent, or c o e r ced), statutory r ape,
sex ual abuse of a m i n or, robbery , arson,
ex tortion, ex tortionate ex tension of credit, burg lary o f a dwelling , o r any other offense under federal, state, or local law that has as an element the u se, attempted use, or threatened

use of phy sical f

orce ag ainst the person o f another.
U.S. Sentencing Guidelines Manual § 2L 1.2 cmt. n.1(B )(iii) (2012); s e e also United States v. Rodriguez-Guzman , 506 F .3d 738, 741 (9th Cir. 2007).

The Government a

rg ued before the district court that Acosta-Chavez ’s I llinois crime constituted a “crime o f violence” because it qualified as both “ s e x u a l abuse of a minor” and a “forcible sex o ffense.” See U.S.S.G. § 2L 1.2 cmt. n.1(B ) ( iii) (2012). Acosta-Chavez o bjected. T h e district court u ltimately adopted the Government’s view, finding that the offense was both sex u al ab u s e o f a minor and a forcible

sex offense.

On a p p eal, however, the Government abandons its position that Acosta-Chavez ’s I l linois offense constitutes

se x u a l a b u se of a minor. A ccording ly , the sole issue before this Court is w hether Acosta-Chavez ’s I llinois offense should be deemed a forcible sex offense and therefore a “ c rime a violence.” This Court reviews this question de novo

. United States v. Grajeda , 581 F

. 3d 1186, 1188 (9th Cir. 2009).U N I T E D S T A T E S V

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III

A

I n order to d e t e r mine w hether a c rime qualifies as a “crime of violence,” courts apply the framework e stablished in T a y lor v. United States , 495 U.S. 5 75 (1990). Taylor establ i s h ed a “formal c ateg orical approach,” id. at 600, whereby sentencing courts “comp a r e t he elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the s t a t ute is broader than the g eneric f ederal d efinition.” United States v

. Valen c ia-Barragan , 608 F .3d 1103, 1107 (9th Cir. 2 010) (internal qu o tation marks omitted). I f the statute o f conviction “ sweeps more broadly th an the g eneric crime, a
co n v i c tion under that law cannot [ categ orically ] count as [ a qualify ing ] p redicate, even if the defendant actually committed the offense in its g eneric for m .” Descamps , 133 S. Ct. at 2283.

W h ere the categ orical approach is not determinative, the sentencing c ourt may , in a “narro w rang e of cases,” apply a “modified categ orical approach.” See id. at 2 283 (discussing Taylor , 495 U.S. at 602). I n Descamps , the S u p r e m e Court clarified the p ro p er application of the modified categ orical approach. 3 B efore a sentencing court may use this approach, it must first dete rmine that the defendant was convicted o f violating a “ d

ivisible statute .” Id. at 2285 (emphasis added). A “divisible statute,” the Court ex plained, is one that “sets out
one or more elements of the o f f e n s e in the alternative” o r

3 Desca mp s ap p lies to th is case b ecau se t h e Su p rem e Co u rt iss ued its d ecisio n w

h ile t h is case w as “ p en d in g o n d irect rev iew .” Griffith v. Ken tu cky , 4 7 9 U.S. 3 1 4 , 3 2 8 (1 98 7 ).U N I T E D S T A T E S V

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“ c omprises multiple, alternative v e r sions of the crime.” I d

. at 2281, 2284. The modified categ orical app roach may be used only when one o f those alternatives is an element of the g eneric offense, a

nd a not her is not. I n these narrow circumstances, the sentencing court may “consult a li m i ted class of documents, such as indictments a nd jury instructions, to determine whic h a lternative f ormed the basis of the defendant’s p r ior conviction.” Id. at 228 1

. “The c ourt can then do what the categ o rical approach demands: compare the elements of the crime of conviction . .

. w ith the elements o f the g eneric crime.” Id.

B

I n order to apply either ap p r o a c h , we must ascertain the g eneric federal definition of “forcible sex offense.” Althoug h

we have never comprehensively defined this crime, we have instructed that the term should be defined with reference to its

“ o rdinary , contemporary , and common meaning

. ” United States v. Bolanos-Hernandez , 492 F .3d 1140 , 1 1 4 3–44 (9th Cir. 2007). The parties’ arg u ments in this c ase focus on whether Acosta-Chavez ’s offense conduct qual ifies a s “forcible.” The Government contends that s e x u a l o ffenses involving mi nors are inherently forcible because minors cannot g ive “leg ally valid” conse n t. See U.S.S.G. § 2L 1.2 App. n.1(B ) (iii); see also United States v. Gallegos-Galindo , 704 F .3d 1269, 1272 ( 9th C i r

. 2 013). Acosta-Chavez counters that leg ally invalid consent based on the v ictim’s ag e does not automatically

render a sex offense forcible.

C

W e need n ot decide that issue, however, because even assuming that sex offens e s i n v olving minors are inherentlyU N I T E D S T A T E S V

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forcible, we conclude that the ag e el e m e n t contained in the I llinois statute under w hich Acosta-Chavez w a s c onvicted includes as minors, persons who are not minors under federal law, and does so in a way that is indivisible. B ecause of this, Acosta-Chavez ’s c onvicti o n c a n not count a s a forcible sex offense, “even if [ he] actually committed the offens e in its g eneric form.” Descamps , 133 S. Ct. at 2283. W e reach this conclusion under the categ orical approach. W e also conclude that the modified categ orical approach is unavailable to us.

F irst, under the categ o r ical approach, 4 we fi n d that o ne element of the I llinois law—its definition of a minor—is broader than that c o n tained in its g e n eric federal analog ue. See Valencia

- B a rragan , 608 F .3d at 1107. The I llinois statute desig nates as minors those who are “at least 1 3 y ears of ag e but under 17 y ears of ag e,” 720 I ll. Comp. Stat. 5/11- 1.60 (emphasis added), whereas the federa l d efinition o f a minor is someone under six teen y ears o f a ge , see United States v. Gonzalez-Aparicio , 663 F .3d 4 1 9 , 4 3 2 (9th Cir. 2011); see also Rodrig u e z -Guzman , 506 F .3d a t 743–46 (ex amining a v ariety of sources, incl u d i n g the Model Penal Code, state statutes, and f

ederal statutes to determine “ that the term ‘minor’ in the contex t o f a s t a t u t o r y rape law means a person under six teen y ears of ag e”). The crime as defined in I llinois thus “sweeps mo r e b r oadly than the g eneric crime,”

4 Al th o u g h th e Go v ern m en t’ s arg u m en ts on ap p eal f o cu s o n th e
m o d if ied categ o rical ap p ro ach , it is a p p r o p riate f o r u s to b eg in w ith a d iscu ssio n o f th e categ o rical ap p ro ach g iv en th at “ th e m o d if ied ap p ro ach

m erely h e l p s i m

p lem en t t h e categ orical ap p ro ach w h en a d ef en d an t w as
co n v icted o f v io latin g a d iv i sib le statu te.” D esca mp s , 1 33 S. Ct. at 2 2 85 ;
see a lso Ga lleg o s-Ga lin d o , 7 0 4 F .3 d at 1 2 7 3 (n o tin g t h is Co u rt m ay reach th e q u estio n o f w

h e t h e r a crim e is categ o rically a “ cim e o f v io len ce” alth o u g h th e Go v ern m en t d oes n o t ad d ress th e p o in t).U N I T E D S T A T E S V

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Descamps , 133 S. C t

. at 2283, and cannot qualify categ orically

as a forcible sex offense.

W ith the categ orical approach u n a v ailing , the Government asks us to resort to the modified categ ori c al approach. A pply ing the Supreme Court’s instruction in Descamps , however, we conclude that the ag e element contained in the relevant I llinois statute is not divisible, and, thus, we may

not apply the modified categ orical approach.

The I llinois statute’s ag e element is stated as a rang e—“at leas t 1 3 y e ars of ag e but under 17 y ears of ag e.” 7 20 I ll. C o m p

. Stat. 5 /11-1.60. T h e statutory lang uag e is therefore not written in a m a n n er that defines this element “alternatively , with one statutory phrase corresponding to the g eneric crime and another n ot.” 5 Descamps , 133 S

. Ct. at 2286. Althoug h the statute “implies” a sequence of a g es, the Descamps Court ex pressly prohibited sentencing c ourts from “hy pothetically r econceiv[ ing ] such a s t a tute in d ivisible terms.” Id. at 2290. The Supreme Court c l e ar l y stated that divisibility ex ists only when a n element of the crime o f conviction c ontains a lternatives , o ne of which is an element of its federal analog ue. I d. at 2 283–84. The I llinois statute at issue in this case does not meet this criterion, and we thus may not resort to the modified categ orical approach.

Acosta-Chavez ’s prior con v iction therefore does not qu a lify as a forcible sex offense. According ly , we conclude that the district court erred in appl y ing the “crime o f violence” enhancement.

5 If , f or ex am p le, th e statu t e d ef

in ed a m in o r as a p erso n “ 14 , 1 5 , 16 , or 1 7 y ears o f

ag e,” th e statu te’ s ag e elem en t w o u ld b e d iv isib le.U N I T E D S T A T E S V

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IV
Having concluded that the District Court erred in a pply ing the six teen-level “crime o f violence” e nhancement, w e must
nex t c onsider the Government’s arg u ment that this e rror was harmless.

“A district c o u rt must start with the recommended Guideline s sentence, adjust u pward or downward from that p oint, and justify the ex tent o f the departure from t h e Gu idelines sentence.” U nited States v. Munoz-Camarena , 631 F .3d 1028, 1030 ( 9th Cir. 2 0 1 1 ). Althoug h a district

c ourt commits procedural error by miscalculating t h e applicable Guidelines rang e, United States v. Carty , 520 F .3d 984, 9 93 (9th Cir. 2 0 0 8 ) ( en banc), such errors may be harmless, United States v

. A li , 620 F .3d 1062, 1074 (9th Cir. 2010). T he burden is on the Governm e n t to establish that such an error w as harmless. United States v. B e ng-Salazar , 452 F .3d 1088, 1096 (9th Cir. 2006).

I n this case, the Government contends that the distr i ct court’s statements a t sentencing r e n der any error harmless. Althoug h the district court calculated the enhanced Guidelines rang e to be fort y
- s ix to fifty -seven months, the court found that t h i s “rang e overstate[ d] the nature of that particular c onviction,” warranting a below-Guidelines sentenc e o f thirty months. After imposing the sentence, the district court stated that it would have impose d t h e same
s e n t e nce even had it found the correct (unenhanced) Guidelines rang e to be eig ht to fourteen months. The district court stated that a sentence within the unenhanced Guidelines rang e “would not sufficiently address the statutory factors o f sentencing , p articularly g iven the na t u r e of the priorU N I T E D S T A T E S V

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conviction, the f

a c t that it’s a sex crime involving a minor child.”

The Government has not met its burden of d emonstrating that the d istrict court’s incorrect application of the “crime o f violence” enhancement w as harmless. W e have clearly stated that a district judg e’s “mere statement that it would impose the same a b o ve-Guidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand.” Munoz

- C a marena , 631 F .3d a t 1031. I mporta n t l y , “[ t] he c ourt must ex plain, among other thing s, the reason f

or the extent of a variance. The ex tent necessarily is different when the rang e is differ e n t, so a one-siz e-fits-all

ex p lanation ordinarily does n o t s u ffice.” Id. (citing Carty , 520 F .3d at 991–92).

The district court’s alternative ex p l a n a t ion in this case does not ex plain the “ ex tent” of the var i a n ce f r om the nonenhanced Guidelines rang e. Rather, t h e district court simply stated that a thirty -month sent e nce “adequately a nd fairly a ddresses all o f the statutory factors of sentencing

. ” These statements do not render the district court’s erroneous imp osition of a six teen-level sentencing enhancement harmless. S

ee United States v. Leal-Vega , 680 F .3d 1160, 1169–70 (9th Cir. 2012).

V

F inally , A costa-Chavez requests remand t o a different sentencing judg e because the orig inal district judg e stated that she would impose the same thirty -month s e ntence even absent the “crime of v iolence” enhancement. W e decline to do so.U N I T E D S T A T E S V

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T h i s Court’s “ g e n e r al rule” is that “[ a] bsent unusu al circumstances, resent encing is to be done by the orig inal sentencing judg e.” United States v. W aknine , 543 F .3d 546, 560 (9th Cir. 2008) (i nternal quotation marks omitted). Absent any alleg ations o f b i a s , we consider the following three factors in determining w hether “ unusual circum s t a n ces”

ex ist:
(1) whether the orig inal judg e would reasonably be ex pected upon r e ma nd to have substantial difficulty in putting o ut of his o r her mind p reviously ex p ressed views o r finding s determined to be erroneous or based

on evidence that must be rejected, (2) whether reassig nmen t is advisable to p reserve the appearance o f justice, and ( 3) whether

r e as s i gn m e n t w o u l d e n t a i l w a ste a n d duplication out of proportion to any g ai n i n preserving

appearance of fairness.

United States v

. Quach , 302 F .3d 1 096, 1103 (9th Cir. 2 002) (q u o t ing United States v. Mikaelian , 168 F .3d 380, 387, amended , 1 8 0 F .3d 1091 ( 9th Cir. 1 999)). Acosta-Chavez relies on the second f

a ctor, contending that reassig nment is advisable to preserve the appearance of justice.

W e see n o reason to depart from o ur g eneral 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 categ orical approach. W e ll after the district court issued its sentence, the Supreme Court decided Descamps , which specifically disapproved of this Circuit’s use of the modified categ orical approach. See Descamps , 1 33 S. Ct. at 2286–91. UnderU N I T E D S T A T E S V

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these circumstances, there is no r eas o n t o b elieve that the capable dist r i c t court judg e will n ot follow the law on remand. According ly , we declin e t o ex ercise our discretion to reassig n

this matter.

VI

The district c o u rt erred in apply ing the modified categ orical approach to d etermine that A costa-Chavez ’s I l linois conviction qualifies as a “ crime of violence.” T h i s error was not harmless.

REVERSED and REMANDED.