2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-2011

USA v. Rodolfo Ascencion-Carrera

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1410

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________

No. 10-1410

_________

UNITED STATES OF AMERICA

v.

RODOLFO ASCENCION-CARRERA,

 Appellant

________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cr-00087-001)

District Judge: Honorable Legrome D. Davis

_______

Submitted Under Third Circuit LAR 34.1(a)

February 14, 2011

Before: SLOVITER, HARDIMAN, and ALDISERT, Circuit Judges

(Filed: February 16, 2011)

______

OPINION

______
2

SLOVITER, Circuit Judge.

Rodolfo Ascencion-Carrera pled guilty to reentering the United States illegally 

after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 46 months 

imprisonment. Ascencion-Carrera now appeals his sentence, arguing that the District 

Court plainly erred in enhancing his sentence because his prior conviction under Cal. 

Penal Code § 261.5(a) (statutory rape) does not constitute a crime of violence for 

purposes of the United States Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A) (2008).1

 

We will affirm.2

Under the Sentencing Guidelines, an alien who is convicted of illegally reentering 

the United States has a base offense level of eight. U.S.S.G. § 2L1.2(a). A defendant 

charged with illegal reentry who has sustained a felony conviction for a “crime of 

 1 Ascencion-Carrera has abandoned his argument that the District Court plainly 

erred in concluding that his statutory rape conviction constitutes an “aggravated felony” 

for statutory maximum sentencing purposes in light of this court’s intervening decision in 

Restrepo v. Att’y Gen., 617 F.3d 787 (3d Cir. 2010).

2 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Where, as here, the 

defendant failed to call an erroneous Guidelines calculation to the District Court’s 

attention, we review for plain error. Fed. R. Crim. P. 52(b). We must find: (1) an error 

was committed, (2) the error was plain, and (3) the error affected the defendant’s 

substantial rights. United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001). If all three 

conditions are met, we may exercise our discretion to notice a forfeited error, but only if 

“the error seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. With respect to this final step, we have held that we will generally 

exercise our discretion to recognize a plain error in the misapplication of the Sentencing 

Guidelines. Id. at 206-07 n.7.
3

violence” is subject to a sixteen-level enhancement.3

 Id. § 2L1.2(b). The Application 

Notes define a “crime of violence” to mean, inter alia, “statutory rape” or “sexual abuse 

of a minor.” Id. § 2L1.2 cmt. n.1(B)(iii). As a preliminary matter, we agree with 

Ascencion-Carrera that, to avoid redundancy, this case is properly analyzed under the 

enumerated predicate of statutory rape, not sexual abuse of a minor.4

Even if we were to find that the District Court committed error in determining that 

Cal. Penal Code § 261.5 categorically qualifies as a crime of violence under the 

Guidelines, the more difficult inquiry is whether any such error was plain.

 See United States v. 

Landmesser, 378 F.3d 308, 312-13 (3d Cir. 2004) (Guidelines must be interpreted so as 

to avoid surplusage).

5

 3 In this case, the sixteen-level enhancement resulted in a Guidelines range of 46-

57 months, significantly higher than the otherwise applicable sentencing range. 

 Although the 

only courts of appeals to squarely address the issue have held that § 261.5 does not 

comport with the generic definition of statutory rape under the Guidelines, see United 

4 Indeed, were we to analyze under the sexual abuse of a minor predicate, 

Ascencion-Carrera’s argument for plain error might be more forceful. Apart from any 

arguments regarding the age of consent, § 261.5 would likely not categorically qualify as 

sexual abuse of a minor under the illegal reentry guideline because it criminalizes 

nonabusive conduct, e.g., consensual sex between a person one day shy of 18 and a 

person who has just turned 21. See, e.g., United States v. Lopez-Solis, 447 F.3d 1201 (9th 

Cir. 2006) (Tennessee statutory rape law not categorically sexual abuse of a minor under 

previous Guidelines because it proscribes sexual conduct between 17-year-old and 22-

year-old).

5 We assume without deciding that the statute of conviction is broader than the 

generic form of the crime set forth in the federal enhancement provision because it 

defines the age of consent at eighteen rather than sixteen. 
4

States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir. 2008) (Cal. Penal Code § 261.5(c) 

not categorically a crime of violence under illegal reentry guideline); United States v. 

Rodriguez-Guzman, 506 F.3d 738, 746-47 (9th Cir. 2007) (same), neither the Supreme 

Court, this court, nor several other courts of appeals have decided the issue.6

 6 In United States v. Hernandez-Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006), 

the Tenth Circuit held that § 261.5(c) qualifies as a crime of violence under the illegal 

reentry guideline. However, there the defendant did not raise an overbreadth challenge 

and the Court did not apply the categorical approach, instead deeming California 

statutory rape a crime of violence simply because “statutory rape” is an enumerated 

offense in the Guidelines.

 As such, we 

cannot say that Ascencion-Carrera has met his burden of proving that the District Court 

committed plain error. See United States v. Olano, 507 U.S. 725, 734 (1993) (error is 

“plain” when it is “clear under current law”); United States v. Harris, 471 F.3d 507, 512

(3d Cir. 2006) (error not plain where neither the Supreme Court nor Third Circuit had

ruled on issue in a precedential opinion). Moreover, that this is a point upon which 

reasonable minds could differ is evidenced by related opinions further undermining our 

ability to find that any error was plain. See United States v. Viezcas-Soto, 562 F.3d 903, 

914 (8th Cir. 2009) (Gruender, J., dissenting) (“It seems to me that a definition of 

‘statutory rape’ that excludes the statutory rape laws of seventeen states, including the 

most populous state in the Union [California], along with Texas [age of consent 17], New 

York [17], Florida [18], and Illinois [17], cannot reasonably be classified as ‘generic.’”); 

United States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir. 2006) (holding 
5

Texas statutory rape statute, setting threshold age of 17, meets generic, contemporary 

definition of statutory rape triggering sentence enhancement under the Guidelines). 

Accordingly, we affirm the sentence imposed by the District Court.