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w . v i l l a no v a . e du/thir dc ir c uit_2011/1781NO T PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________ No. 10

- 1410

_________
UNITED STATES OF AMERICA

v. RODOLFO ASCENCION

- CARRERA, Appellant

________ On Appe al 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 , a nd 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 viol ence 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 78 7 (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 de fendant’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 forfeite d 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 exercis e our discretion to recognize a plain error in the misapplication of the Sentencing Guidelines. Id. at 20 6

- 0 7 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 ali a , “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 sexua l 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 interpret ed 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 appli cable sentencing range. Although the only courts of appeals to squarely address the issue have held that § 261.5 does not comport with the gen eric definition of statutory rape under the Guidelines, s ee 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 categ orically 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

- Soli s , 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 ge neric form of the crime set for th 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

- Guzm an , 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 Califo rnia statutory rape a crime of violence simply because “statutory rape” is an enumera ted offense in the Guidelines. As such, we cannot say that Ascencion

- Carrera has met his burden of proving that the District Court commit ted 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) (holding5 Texas statutory rape statute, setting threshold age of 17, mee ts generic, contemporary definition of statutory rape triggering sentence enhancement under the Guidelines). Accordingly, we affirm the sentenc e imposed by the District Court.