FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50267

Plaintiff-Appellee, D.C. No.

v.  3:08-CR-01271-

MMA-1 ARVIN ESPINOZA-MORALES,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted

May 4, 2010—Pasadena, California

Filed September 10, 2010

Before: Betty B. Fletcher and Richard A. Paez,

Circuit Judges, and Donald E. Walter,

District Judge.*

Opinion by Judge Paez;

Dissent by Judge Walter

*The Honorable Donald E. Walter, Senior United States District Judge

for the Western District of Louisiana, sitting by designation. 

13833
COUNSEL

Doug Keller, Federal Defenders of San Diego, California, for

defendant-appellant Arvin Espinoza-Morales.

Amy Dell, Special Assistant United States Attorney, and Shelia Nagarai (argued), Assistant United States Attorney, San

Diego, California, for plaintiff-appellee, United States of

America.

OPINION

PAEZ, Circuit Judge:

Arvin Espinoza-Morales appeals the 57-month sentence

imposed following his guilty plea to attempted reentry following deportation in violation of 8 U.S.C. § 1326. In particular,

Espinoza challenges the district court’s application of U.S.

Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which

imposes a 16-level enhancement where a defendant has previously been convicted of a felony “crime of violence.” In this

appeal, we consider whether Espinoza’s prior conviction for

UNITED STATES v. ESPINOZA-MORALES 13837
sexual battery under California Penal Code section 243.4(a)

or his conviction for penetration with a foreign object under

California Penal Code section 289(a)(1) constitutes a crime of

violence warranting the § 2L1.2(b)(1)(A)(ii) enhancement.

We conclude that they do not, under either the categorical or

modified categorical approach, and we accordingly vacate

Espinoza’s sentence and remand for re-sentencing.

I. FACTUAL BACKGROUND

In March 2008, Espinoza, a citizen of Nicaragua, pleaded

guilty to one count of attempted reentry after deportation in

violation of 8 U.S.C. § 1326. The government urged the court

to apply a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) on the grounds that Espinoza had previously been deported after “conviction for a felony that is . . .

a crime of violence.” The government contended that

Espinoza’s 1999 convictions for sexual battery under California Penal Code section 243.4(a) and for penetration with a

foreign object under California Penal Code section 289(a)(1)

—convictions that arose out of a single incident—qualified as

crimes of violence within the meaning of the Sentencing

Guidelines. Although the government conceded that the sexual battery conviction under section 243.4(a) did not constitute a categorical crime of violence, it argued that the section

289(a)(1) penetration with a foreign object offense categorically constituted a crime of violence. The government also

contended that both crimes amounted to crimes of violence

under the modified categorical approach. In support of that

contention, the government offered (1) the criminal information and abstract of judgment and (2) an unpublished state

appellate court decision that summarized the facts of

Espinoza’s prior offenses. According to the state appeals

court opinion, Espinoza had put his victim in a headlock and,

while keeping his arm around her neck, tried to kiss her,

touched her breast, and rubbed his hand on and inserted his

finger inside her vagina.

13838 UNITED STATES v. ESPINOZA-MORALES
The district court agreed with the government that

Espinoza’s prior convictions warranted the 16-level enhancement, concluding that they qualified as crimes of violence

“whether you look at [them] under [the] categorical or modified categorical approach.”

1

 Applying a base offense level of

8, a 3-point reduction for acceptance of responsibility, and the

16-level crime of violence enhancement, the district court calculated an advisory Guidelines sentencing range of 57 to 71

months and sentenced Espinoza within the Guidelines range

to 57 months’ imprisonment and three years of supervised

release. 

Espinoza timely appealed. On appeal, Espinoza contends

that his prior state convictions do not constitute crimes of violence under either the categorical or modified categorical

approach and that his sentence violates his Fifth and Sixth

Amendment rights because it was based on judicial factfinding that he had previously been convicted of a crime of

violence.2

II. STANDARD OF REVIEW

We review de novo whether a prior conviction constitutes

a crime of violence under U.S.S.G. § 2L1.2. United States v.

Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005).

1The district court did not actually specify whether it found that both

convictions, or only one, qualified as crimes of violence. Because the district court was unclear, and because the government had sought the

enhancement on the basis of both convictions, we assume that the district

court found that both convictions qualified as crimes of violence and

accordingly analyze both statutes. 

2As Espinoza acknowledges, his constitutional argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and our consistent adherence to that Supreme Court precedent, see, e.g., United States

v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc); United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We accordingly reject his

constitutional argument without further analysis. 

UNITED STATES v. ESPINOZA-MORALES 13839
III. DISCUSSION

To determine whether Espinoza’s prior convictions qualify

as “crimes of violence” under U.S.S.G. § 2L1.2,3 we apply the

approach set forth in Taylor v. United States, 495 U.S. 575,

602 (1990). See Grajeda, 581 F.3d at 1189. Under that

approach, we first consider whether a prior offense “is categorically a crime of violence by assessing whether the full

range of conduct covered by the statute falls within the meaning of that term.” Id. (internal quotation marks, alteration, and

citation omitted). If the statute of conviction is overbroad—

that is, if it punishes some conduct that qualifies as a crime

of violence and some conduct that does not—it does not categorically constitute a crime of violence. See id. In that case,

we must then apply the “modified categorical approach” to

determine whether the record of conviction shows that the

defendant “was convicted of the elements of the generically

defined crime.” Id. (quoting United States v. Vidal, 504 F.3d

1072, 1077 (9th Cir. 2007) (en banc)). 

A. Categorical Approach

On appeal, the government concedes that Espinoza’s convictions under California Penal Code sections 243.4(a) and

289(a)(1) do not qualify as crimes of violence under the categorical approach. Although we need not accept this concession on a matter of law, see United States v. Miller, 822 F.2d

828, 832 (9th Cir. 1987), we agree that these crimes do not

categorically constitute crimes of violence.

3The district court applied the 2008 edition of the United States Sentencing Guidelines Manual in calculating Espinoza’s advisory Guidelines

range, and all references are to that edition unless otherwise indicated.

Like the current version, the 2008 version of § 2L1.2(b)(1)(A)(ii) instructs

the court to increase a defendant’s base offense level by 16 levels “[i]f the

defendant previously was deported, or unlawfully remained in the United

States, after . . . a conviction for a felony that is . . . a crime of violence.”

U.S.S.G. § 2L1.2(b)(1)(A)(ii). 

13840 UNITED STATES v. ESPINOZA-MORALES
An offense qualifies as a “crime of violence” under

§ 2L1.2(b)(1)(A)(ii) if it either (1) “ ‘has as an element the

use, attempted use, or threatened use of physical force against

the person of another’ under the definition’s . . . ‘element’

prong” or (2) “constitutes one of the crimes listed in the ‘enumerated offense’ prong of the definition.” Grajeda, 581 F.3d

at 1189-90 (quoting U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)).4 We

address in turn whether either offense qualifies as a crime of

violence under either prong of § 2L1.2’s definition, under

either the categorical or modified categorical approach. In

particular, in applying the enumerated offense prong of

§ 2L1.2’s crime of violence definition, we consider whether

Espinoza’s convictions could potentially constitute “forcible

sex offenses.” 

1. Sexual Battery under California Penal Code section

243.4(a)

[1] At the time of Espinoza’s conviction, section 243.4(a)

punished “touch[ing] an intimate part of another person while

that person is unlawfully restrained by the accused or an

accomplice, [where] the touching is against the will of the

person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.” Cal. Penal Code § 243.4(a)

(1999). We have previously held that this statute does not categorically constitute a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A). United States v. Lopez-Montanez, 421 F.3d

4Application note 1(B)(iii) to U.S.S.G. § 2L1.2 provides in full: 

“Crime of violence” means any of the following offenses under

federal, state, or local law: Murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (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. 

UNITED STATES v. ESPINOZA-MORALES 13841
926, 929 (9th Cir. 2005). Although the definition of “crime of

violence” in force at the time of Espinoza’s sentencing differs

from that at issue in Lopez-Montanez, the government does

not contest, and we do not doubt, the ongoing validity of

Lopez-Montanez’s holding, at least as applied to this case. To

explain, we briefly discuss Lopez-Montanez’s holding and its

applicability here.

a. Element Prong

We recognized in Lopez-Montanez that, “although [section

243.4(a)] requires that the victim be ‘unlawfully restrained,’

the restraint need not be physical and can be accomplished by

words alone, including words that convey no threat of violence.” Id. Because a section 243.4(a) offense therefore does

not require the “use, attempted use, or threatened use of physical force against the person of another,” it does not qualify as

a crime of violence under the element prong of § 2L1.2’s definition. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (emphasis added);

see also United States v. Beltran-Munguia, 489 F.3d 1042,

1051 (9th Cir. 2007).

b. Enumerated Offense Prong

[2] In Lopez-Montanez, we also held that only offenses

involving the use of physical force could constitute “forcible

sex offenses” under the enumerated offense prong, and that

sexual battery under section 243.4(a) therefore did not qualify

as a “forcible sex offense.” Lopez-Montanez, 421 F.3d at

929-31. To be sure, the 2008 amendments to the § 2L1.2 definition of “crime of violence” may have abrogated this holding. At the time of Lopez-Montanez, § 2L1.2 enumerated

“forcible sex offenses,” with no elaboration, on its list of

crimes of violence. Id. at 929 (quoting U.S.S.G. § 2L1.2, cmt.

n. 1(B)(ii) (2002)). By the time of Espinoza’s sentencing in

2009, the Sentencing Commission had amended the definition

to include a more detailed description of the “forcible sex

offenses” that would constitute crimes of violence. Rather

13842 UNITED STATES v. ESPINOZA-MORALES
than simply listing “forcible sex offenses” as a crime of violence, the new definition lists “forcible sex offenses (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).” U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii).

This amendment took effect on November 1, 2008.

[3] We need not decide here whether this amendment abrogates Lopez-Montanez’s holding, however, because it cannot

affect the calculation of Espinoza’s sentence. Although a sentencing court must generally apply the Guidelines in effect at

the time of sentencing, the Ex Post Facto Clause requires a

court to apply instead the Guidelines in effect at the time of

the current offense “if the guidelines have undergone substantive changes that would disadvantage the defendant.” United

States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006). A

change that would overrule an existing precedent constitutes

such a “substantive” change. See United States v. Smallwood,

35 F.3d 414, 417 n.8 (9th Cir. 1994) (citing, among others,

United States v. Saucedo, 950 F.2d 1508 (10th Cir. 1991)).

Thus, if the 2008 amendment to § 2L1.2’s crime of violence

definition abrogated Lopez-Montanez, it was substantive and

therefore cannot be applied to Espinoza. In that case, the

Guideline in effect at the time of his March 2008 attempted

entry offense—which, like the Guideline applied in LopezMontanez, enumerated “forcible sex offenses,” without the

elaboration, as a crime of violence, U.S.S.G. § 2L1.2, cmt.

n.1(B)(iii) (2007)—would apply. Lopez-Montanez’s holding

that sexual battery under section 243.4(a) does not categorically constitute a “forcible sex offense” therefore applies here,

regardless of the effect of the 2008 amendment. Espinoza’s

conviction under section 243.4(a) thus does not categorically

constitute a crime of violence under either the element prong

or the enumerated offense prong of the § 2L1.2 definition.

2. Penetration with a Foreign Object under California

Penal Code section 289(a)(1)

At the time of Espinoza’s conviction, section 289(a)(1) provided:

UNITED STATES v. ESPINOZA-MORALES 13843
Every person who causes the penetration, however

slight, of the genital or anal openings of any person

or causes another person to so penetrate the defendant’s or another person’s genital or anal openings

for the purpose of sexual arousal, gratification, or

abuse by any foreign object, substance, instrument,

or device, or by any unknown object when the act is

accomplished against the victim’s will by means of

force, violence, duress, menace, or fear of immediate

and unlawful bodily injury on the victim or another

person shall be punished by imprisonment in the

state prison for three, six, or eight years.

Cal. Penal Code § 289(a)(1) (1999). We address in turn

whether this offense categorically qualifies as a crime of violence under the element prong or the enumerated offense

prong of the § 2L1.2 definition.

a. Element Prong

[4] We have made clear that the force required under the

element prong of the § 2L1.2 crime of violence definition

“must actually be violent in nature.” Grajeda, 581 F.3d at

1191 (quoting Lopez-Montanez, 421 F.3d at 929). Thus, to

constitute a categorical crime of violence under the element

prong, section 289(a)(1) must only punish conduct that

involves the use, attempted use, or threatened use of violent

physical force against another. It does not. 

[5] Rather, section 289(a)(1) applies when a defendant

accomplishes a penetration proscribed by the statute by any of

several enumerated means, including “by means of . . . duress.”

5

5Because we conclude that accomplishing a penetration by means of

duress does not necessarily involve the use, attempted use, or threatened

use of force under the element prong, we need not address Espinoza’s

argument that accomplishing a penetration “by means of . . . fear of immediate and unlawful bodily injury” likewise does not involve such a use of

force. 

13844 UNITED STATES v. ESPINOZA-MORALES
Cal. Penal Code § 289(a)(1). Duress does not necessarily

involve the use, attempted use, or threatened use of violent

physical force. As California courts have explained, “duress”

under section 289(a) “involves psychological coercion” and

can arise from “a direct or implied threat of force, violence,

danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to first, perform an act

which otherwise would not have been performed, or, second,

acquiesced [sic] in an act to which one otherwise would not

have submitted.” People v. Senior, 5 Cal. Rptr. 2d 14, 20 (Cal.

Ct. App. 1992) (internal quotation marks omitted). Although

threatening “force, violence, or danger” might constitute a

threatened use of violent physical force, threatening “hardship

or retribution” does not necessarily involve any threat, use, or

attempted use of violent physical force.

Indeed, the state has repeatedly applied section 289(a)(1) to

defendants who penetrated their victims by means of duress

in ways that involved no use or threatened use of violent

physical force. In People v. Minsky, for example, a defendant

was convicted under section 289(a) for posing as a lawyer and

tricking women into believing that a loved one had just been

arrested and was facing mandatory jail time for a hit-and-run,

and then posing as the hit-and-run victim or witness and offering to drop the charges or to refuse to testify if the woman

submitted to sex acts. People v. Minsky, 129 Cal. Rptr. 2d

583, 584-85 (Cal. Ct. App. 2003), review granted and then

dismissed, 105 P.3d 115 (2005).6 An intermediate California

appellate court affirmed this conviction, concluding that the

defendant accomplished the crime by means of duress by

“pos[ing] a threat of . . . retribution,” i.e. “payback or

6Although we ordinarily should not cite opinions for which the California Supreme Court granted review, see Cal. R. Ct. 8.1105(e)(1), we can

appropriately rely on this case to show that the state has actually applied

section 289(a)(1) to conduct that does not involve the use, attempted use,

or threatened use of violent physical force. See Vizcarra-Ayala v.

Mukasey, 514 F.3d 870, 876 n.3 (9th Cir. 2008). 

UNITED STATES v. ESPINOZA-MORALES 13845
revenge.” Id. at 586-87. Similarly, in People v. Cardenas, a

defendant was convicted under section 289(a) for inducing his

victims to consent to sex acts by pretending to be a faith

healer who could cure them. 26 Cal. Rptr. 2d 567, 568 (Cal.

Ct. App. 1994). Again, the intermediate court affirmed the

conviction, explaining that the defendant had accomplished

the penetrations by means of duress, and that physical force

“may, but need not[,] be present to have duress.” Id. at

573-74. 

[6] These cases conclusively establish that section

289(a)(1) sometimes punishes conduct that does not involve

the “use, attempted use, or threatened use of physical force

against the person of another.” Section 289(a)(1) therefore

does not categorically qualify as a crime of violence under the

element prong of § 2L1.2’s definition.

b. Enumerated Offense Prong

[7] For similar reasons, we also conclude that section

289(a)(1) does not categorically qualify under the enumerated

offense prong as a “forcible sex offense” as our precedents

have defined that term. We have held that a “forcible sex

offense” must have an element of “the use of some force outside of the act of unwanted penetration.” United States v.

Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th Cir. 2007).

Although the offense need not involve “the heightened level

of force needed to qualify a crime under § 2L1.2’s” element

prong, id. at 1145, the force involved must be physical, as

opposed to psychological, see Lopez-Montanez, 421 F.3d at

929-30 (concluding that sexually touching a victim by “unlawfully restrain[ing]” him or her using only psychological

force would not constitute a “forcible sex offense”).7

7Again, we acknowledge that the 2008 amendment to the Sentencing

Guidelines Manual may well have abrogated our holding in LopezMontanez. As we explained above in section III.A.1.b, however, any effect

that the 2008 amendment has on our precedent cannot apply to Espinoza’s

sentence because he committed his crime before the amendment took

effect.

13846 UNITED STATES v. ESPINOZA-MORALES
[8] Section 289(a)(1) punishes conduct that does not

involve any physical force “outside of the act of unwanted

penetration.” In People v. Hernandez, an intermediate California court of appeal upheld a section 289(a)(1) conviction

where “[n]othing in the record indicate[d] that defendant

applied any force greater than that necessary to commit the

sexual penetration offense.” No. E029254, 2002 WL

1734011, *2 (Cal. Ct. App. July 26, 2002).8 The defendants

in Minsky and Cardenas, described above, likewise were convicted under section 289(a) even though they did not use any

physical force outside the act of unwanted penetration. See

Minsky, 129 Cal. Rptr. 2d at 584-85, 589; Cardenas, 26 Cal.

Rptr. 2d at 570, 573-74. Because section 289(a)(1) applies to

conduct that does not involve any such “extra” physical force,

it does not categorically constitute a “forcible sex offense”

and accordingly does not categorically constitute a crime of

violence under the enumerated offense prong of § 2L1.2’s

definition.

B. Modified Categorical Approach

[9] Because we conclude that neither of Espinoza’s convictions categorically qualifies as a crime of violence, we

must next determine whether either of his convictions constitutes a crime of violence under the modified categorical

approach.9 The modified categorical approach “requires us to

determine—if we can—whether the conduct for which the

defendant was convicted fits within the federal definition” of

8Although we ordinarily should not cite unpublished opinions, we can

appropriately rely on this case to show that the state has actually applied

section 289(a)(1) to conduct that falls outside of our definition of “forcible

sex offenses.” See Vizcarra-Ayala, 514 F.3d at 876 n.3. 

9Contrary to the government’s contention, Espinoza argued before the

district court that his prior convictions do not qualify as crimes of violence

under the modified categorical approach. We therefore review de novo—

not for plain error, as the government urges—the district court’s conclusion that Espinoza’s convictions constituted crimes of violence under the

modified categorical approach. Rodriguez-Rodriguez, 393 F.3d at 856. 

UNITED STATES v. ESPINOZA-MORALES 13847
a crime of violence. United States v. Snellenberger, 548 F.3d

699, 701 (9th Cir. 2008) (en banc). As applied here, we must

determine whether the conduct for which Espinoza was convicted involved the “use, attempted use, or threatened use of

[violent] physical force against the person of another” (as the

element prong requires) or involved “the use of some force

outside of the act of unwanted penetration” (as the enumerated offense prong requires). See Grajeda, 581 F.3d at

1189-91; Bolanos-Hernandez, 492 F.3d at 1144. We can conclude that a conviction qualifies as a crime of violence under

the modified categorical approach “only if the record of conviction shows the jury ‘necessarily’ found all of the generic

elements,10 or the defendant ‘necessarily’ admitted all of the

generic elements in a plea.” Sandoval-Lua v. Gonzales, 499

F.3d 1121, 1131 (9th Cir. 2007) (citing Taylor, 495 U.S. at

599-602 and Shepard v. United States, 544 U.S. 13, 19-21

(2005)). Here, the government has offered a criminal information and abstract of judgment as well as a California appellate

court decision affirming Espinoza’s convictions and summarizing the facts of his case. None of these documents, considered individually or collectively, establishes that the jury

“necessarily” found that Espinoza used, attempted to use, or

threatened to use force that would render his convictions

crimes of violence.

1. Criminal Information and Abstract of Judgment

The criminal information and abstract of judgment, taken

together, do not establish that Espinoza was “necessarily”

convicted of using force that would render his convictions

crimes of violence. 

10By “generic elements,” we mean those elements that would qualify

the crime as a crime of violence. Thus, for example, if the conviction

record established that Espinoza was necessarily convicted of accomplishing the unlawful penetration by means of force, as opposed to by means

of duress, we could conclude that he had been convicted of a crime of violence as defined by § 2L1.2. 

13848 UNITED STATES v. ESPINOZA-MORALES
[10] In the section 243.4(a) sexual battery count, the information charged Espinoza with “willfully and unlawfully

touch[ing] an intimate part of Jane Doe, while said person

was unlawfully restrained by said defendant(s) Arvin

Espinoza Morales, against the will of said person and for the

purpose of sexual arousal, sexual gratification, and sexual

abuse.” The abstract of judgment shows only that Espinoza

was convicted by jury of this crime. Neither the information

nor the abstract of judgment clarifies the type of unlawful

restraint used, and neither document even mentions any use

of force. The information and abstract of judgment therefore

cannot establish that the jury “necessarily” convicted

Espinoza of violating section 243.4(a) based on conduct

involving the use of force.

[11] In the section 289(a)(1) penetration by a foreign

object count, the information charged Espinoza with accomplishing the unlawful penetration “by force, violence, duress,

menace and fear of immediate and unlawful bodily injury on

the victim or another.”

11 (emphasis added). Even though the

state charged Espinoza in the conjuctive—with accomplishing

the penetration by means of force, violence, duress, menace

and fear—this charge could have supported a conviction

based on duress alone. Under California law, a jury could

have convicted Espinoza if it found that he had accomplished

11That count of the information reads in full: 

On or about June 18, 1999, in the above named judicial district,

the crime of ANAL & GENITAL PENETRATION BY FOREIGN OBJECT, FORCE & VIOLENCE, in violation of PENAL

CODE SECTION 289(a)(1), a felony, was committed by Arvin

Espinoza Morales, who did unlawfully cause the penetration of

the genital and anal openings of another and cause another person

to penetrate the defendant’s and another person’s genital and anal

openings for the purpose of sexual arousal, gratification, and

abuse by a foreign object, substance, instrument and device and

by an unknown object accomplished by force, violence, duress,

menace and fear of immediate and unlawful bodily injury on the

victim or another. 

UNITED STATES v. ESPINOZA-MORALES 13849
the penetration by any one of the alleged means. See In re

Bushman, 463 P.2d 727, 732 (Cal. 1970) (“Merely because

the complaint is phrased in the conjunctive . . . does not prevent a trier of fact from convicting a defendant if the evidence

proves only one of the alleged acts.”), overruled in part on

other grounds by People v. Lent, 541 P.2d 545, 548 n.1 (Cal.

1975). The jury instructions in the state court case—which

Espinoza submitted after oral argument and of which we take

judicial notice12—confirm this. These instructions directed the

jury that it “must be proved” that the “penetration was accomplished by [the use of force, violence, duress, menace or fear

of immediate and unlawful bodily injury to [the alleged victim].” (brackets in original; emphasis added). These instructions thus permitted the jury to convict Espinoza if it found

that he accomplished the penetration by means of duress

alone. The abstract of judgment provides no additional information, but rather simply reflects that the jury convicted

Espinoza of violating section 289(a)(1). The criminal information and abstract of judgment, taken together, therefore do

not establish that Espinoza was necessarily convicted of using

force that would render his conviction a crime of violence for

purposes of § 2L1.2(b)(1)(A)(ii)’s enhancement.

2. State Appellate Court Opinion

[12] The unpublished state appellate court opinion affirming Espinoza’s convictions and summarizing the facts underlying those convictions likewise does not establish that the

jury “necessarily” convicted him of conduct that would

amount to a crime of violence. Indeed, the state court opinion

does not even purport to describe the facts or elements that

the jury “necessarily” found. The opinion examines whether

Espinoza was denied his right under the Vienna Convention

to consult with consular representatives after his arrest. The

12On June 18, 2010, Espinoza-Morales filed an unopposed motion

requesting that we take judicial notice of the jury instructions from his

state trial. We grant the motion. 

13850 UNITED STATES v. ESPINOZA-MORALES
facts of Espinoza’s crime were not relevant to this question,

and the state court presented them only as background. The

opinion nowhere states or even suggests that the jury necessarily found the facts recited to be true.13 The state court opinion therefore clearly does not satisfy Taylor’s requirement

that a document must reflect what “the jury necessarily had to

find” in order to establish that an offense constituted a crime

of violence under the modified categorical approach. Because

the state court opinion does not satisfy this requirement, we

need not consider whether such an opinion, if it did show

what the jury necessarily found, would be sufficiently reliable

for a court to consider when applying the modified categorical

approach. See United States v. Strickland, 601 F.3d 963, 968

(9th Cir. 2010) (en banc); Snellenberger, 548 F.3d at 701-02.

The dissent suggests that Taylor permits us to look to the

facts underlying a conviction so long as we do not “put the

Defendant on trial” for his earlier convictions, re-weigh the

evidence, or make witness credibility determinations. Dissent

at 13857. This misapprehends Taylor. To be sure, the Court

in Taylor expressed concern that inquiring into the facts

underlying a defendant’s prior conviction could result in such

re-trials and accordingly would pose “practical difficulties

and potential unfairness.” See Taylor, 495 U.S. at 601. In particular, the Taylor Court noted that a court often would have

to look to “the Government’s actual proof at trial” to determine the defendant’s actual conduct in the prior case. Id. This

would lead to many tricky questions, as the Court explained:

Would the Government be permitted to introduce the

trial transcript before the sentencing court, or if no

transcript is available, present the testimony of witnesses? Could the defense present witnesses of its

own and argue that the jury might have returned a

13Without explanation or citation, the dissent conclusorily states that

this state court opinion does in fact recite the “necessary findings of the

jury.” Dissent at 13857. This contention is wholly unsupported. 

UNITED STATES v. ESPINOZA-MORALES 13851
guilty verdict on some theory that did not require a

finding that the defendant committed [the generic

crime14]? If the sentencing court were to conclude,

from its own review of the record, that the defendant

actually committed [the generic crime], could the

defendant challenge this conclusion as abridging his

right to a jury trial?

Id. Contrary to the dissent’s suggestion, the Court did not

avoid these “daunting” problems by simply barring mini-trials

at which evidence would be re-weighed and witnesses’s credibility re-evaluated. Id. Rather, to avoid these types of problems, the Court expressly held that a trial court applying the

modified categorical approach must generally “look only to

the fact of conviction and the statutory definition of the prior

offense.” Id. at 602.

The Court did, however, allow for a very limited inquiry

into the underlying facts. Specifically, the Court authorized

trial courts to look “beyond the mere fact of conviction in a

narrow range of cases where a jury was actually required to

find all the elements of [the generic crime].” Id. For example,

a court could conclude that a conviction was for the generic

crime where “the indictment or information and jury instructions show that the defendant was charged only with [the

generic crime], and that the jury necessarily had to find [the

generic element] to convict.” Id. In other words, a conviction

would qualify as a conviction for the generic crime under the

modified categorical approach only if the court could ascertain, without looking to the underlying facts, that the jury necessarily found that the defendant engaged in conduct

amounting to the generic crime. 

Because a jury cannot convict a defendant of conduct not

charged in the indictment or information, we know that a jury

14“Generic crime” refers to the crime identified as a crime of violence

in the statute or Guideline. 

13852 UNITED STATES v. ESPINOZA-MORALES
“necessarily” convicted a defendant of the generic crime

where the indictment or information charges only the generic

crime. Similarly, where the jury instructions require the jury

to find the elements of the generic crime, we know that the

jury “necessarily” convicted the defendant of those elements.

Here, by contrast, where we do not have such limiting charging papers and where the jury instructions do not narrow the

charge to the generic crime, we cannot know what the jury

necessarily convicted the defendant of, and we cannot know

the conduct in which the defendant engaged without looking

to the underlying facts. Taylor precludes us from doing so.

See id. at 602. Indeed, the Court in Shepard rejected the suggestion that courts should be permitted to look at a transcript

of a jury trial to conclude that the defendant was convicted of

the conduct shown by the evidence presented at trial. Id. at 22.

If we may not look to a jury trial transcript, we certainly may

not look to a state court’s description of the facts of a crime,

which simply summarizes the testimony and evidence

reflected in that transcript.

[13] Because neither the state court opinion nor the criminal information and abstract of judgment establish that the

jury necessarily convicted Espinoza of using force, the government has not met its burden to establish that either of

Espinoza’s convictions qualify as a crime of violence under

the modified categorical approach. The district court accordingly erred in applying the 16-level crime of violence

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) in calculating Espinoza’s advisory Guidelines range.

C. Scope of Remand

The parties dispute whether we should allow the district

court to consider new evidence on remand. As a general rule,

when the district court errs in sentencing, we should vacate

and “remand for re-sentencing on an open record—that is,

without limitation on the evidence that the district court may

consider.” United States v. Matthews, 278 F.3d 880, 885 (9th

UNITED STATES v. ESPINOZA-MORALES 13853
Cir. 2002) (en banc). We may depart from this general rule,

however, when “additional evidence would not [change] the

outcome” or when “there was a failure of proof after a full

inquiry into the factual question at issue.” Id. at 886. This case

falls within the second exception: the government submitted

evidence to establish that Espinoza’s convictions constituted

crimes of violence under the modified categorical approach,

but it failed to submit evidence sufficient to meet its burden.

In light of this failure, we decline to give the government a

second bite at the apple. Further, because the universe of documents that the sentencing court may consider is limited, and

because the government has not identified—at oral argument

or in its post-argument response to Espinoza’s motion for

judicial notice of the jury instructions—any additional materials it might be able to offer at re-sentencing, we remand for

re-sentencing on the existing record.

IV. CONCLUSION

[14] Neither of Espinoza’s convictions categorically qualifies as a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Moreover, because nothing in the record

of conviction shows that the jury necessarily convicted

Espinoza of conduct involving force, his convictions do not

qualify as crimes of violence under the modified categorical

approach. We accordingly vacate Espinoza’s sentence and

remand for re-sentencing on the existing record.

VACATED AND REMANDED.

WALTER, District Judge, dissenting:

After a thorough review of the facts and the law pertaining

to this case, I respectfully dissent. 

The unpublished opinion of the Court of Appeal, Fourth

District for the State of California recounts the background

13854 UNITED STATES v. ESPINOZA-MORALES
facts surrounding the Defendant’s 1999 conviction for “anal

and genital penetration by foreign object using force (Pen.

Code, § 289, subd. (a)(1))” and “sexual battery by restraint

(§ 243.4, subd. (a)).” According to that court:

On June 18, 1998, Jane Doe was walking from a

train station in Ontario to pick up her son at his

baby-sitter’s house. Defendant came from behind,

put his arm around her neck and placed her in a

headlock. Jane Doe did not know defendant and had

never seen him before.

Defendant tried to kiss Jane Doe on the lips, but

she turned her face away. He pulled her face toward

him and kissed her on the face and neck and sucked

on her neck. Defendant then touched Jane Doe’s

breast and moved his hand down Jane Doe’s shorts.

He rubbed his hand on her vagina and put at least

one finger inside of it. He continued to keep his

other arm around her neck and tightened his grip.

During this ordeal, Jane Doe kept telling defendant

“no,” and that she had to leave.

Jane Doe unsuccessfully tried to use her elbow to

escape defendant’s hold on her. When she tried a

second time, defendant let go.

Subsequently the Defendant was apprehended and convicted

by a jury. He received an 8 year sentence. After being

released, he was deported.

In January 2009, the Defendant plead guilty to attempted

reentry following deportation in violation of 18 U.S.C.

§ 1326. Faced with the facts from the Defendant’s 1999 conviction, the District Court stated at sentencing:

The main bone of contention here obviously is

whether the Defendant’s prior felony sex offense

UNITED STATES v. ESPINOZA-MORALES 13855
conviction is or is not a crime of violence justifying

a 16-level upward adjustment under the guidelines.

It appears to the Court that it is whether you look at

[it] under [a] categorical or modified categorical

approach as set forth in U.S. v. Taylor . . . It seems

clearly in the definitions of, in the guidelines, what

we have is a crime of violence.

He was sentenced to 57 months. The Defendant appeals the

16-level increase the District Court imposed on his sentence

as a result of the Court’s finding that the Defendant had previously been convicted of a “crime of violence.” The Defendant’s attorney did not dispute, at sentencing nor in her

sentencing memorandum, the facts as set out by the state

appellate court in 1999.

As the majority finds, the modified categorical approach

states that a conviction constitutes a crime of violence “only

if the record of conviction shows the jury ‘necessarily’ found

all of the generic elements, or the defendant ‘necessarily’

admitted all of the generic elements in a plea.” Sandoval-Lua

v. Gonzales, 499 F.3d 1121, 1131 (9th Cir. 2007) (citing Taylor v. United States, 495 U.S. 575, 599-602 (1990), and Shepard v. United States, 544 U.S. 13, 19-21 (2005)).

When the Supreme Court created the modified categorical

approach in Taylor, the Court issued an admonition to sentencing judges regarding the “practical difficulties and potential unfairness of a factual approach” to determining

sentencing enhancements for prior convictions. 495 U.S. at

601. The Court rightly worried that sentencing courts might

be looking at convictions from years or even decades prior

with scant record in order to determine if prior convictions

qualified for sentencing enhancements. This, in the Court’s

opinion, could lead to a whole new “mini-trial” by the sentencing judge thus implicating the defendant’s Sixth Amendment right. In this instance, the majority believes that the

sentencing judge disregarded the Taylor admonition. I do not

13856 UNITED STATES v. ESPINOZA-MORALES
believe that the sentencing judge has run afoul of Taylor. No

re-weighing of the evidence has occurred. The sentencing

judge made no witness credibility determinations. The sentencing judge did not put the Defendant on trial for his 1999

convictions. Instead, the sentencing judge merely looked to an

opinion issued by three of his state court brethren which

recited the underlying facts and necessary findings of the jury.

The question presented here is whether or not the District

Court could rely on the facts as elucidated by the State Appellate court. Recently, this Court in an en banc decision

expanded the materials that a sentencing court could rely on

in determining a sentence enhancement. United States v.

Strickland, 601 F.3d 963 (9th Cir. 2010) (en banc). The Court

held that a district court could rely on an out of state docket

sheet in determining if the prior conviction was a predicate

offense for sentencing purposes. Id. at 968. 

Here, I believe that the unpublished State Court Appellate

opinion satisfies the requirement of reliability. First, it was

prepared by the court itself. Secondly, as stated unequivocally

in oral arguments, appellate judges plainly have a legal and

professional obligation to get the facts right. Finally, the

Defendant had the right to examine and challenge the opinion’s content. Here, the Defendant could have challenged the

State Appellate Court’s factual findings after publication if he

disagreed with the court’s factual characterization. He did not

do so. Accordingly, the State Appellate Court opinion is reliable pursuant to Strickland and United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008)(en banc).

When, as here, a defendant puts the victim in a headlock

and choked her before fondling her breasts and penetrating

her with a foreign object, I am left with no doubt that he used

violent physical force to achieve his objective. Defendant has

never attempted to recast or recharacterize the facts of his

1999 conviction. 

UNITED STATES v. ESPINOZA-MORALES 13857
Given these facts, the District Judge correctly found the

Defendant’s 1999 convictions were “crimes of violence” as

contemplated by the United States Sentencing Guidelines.

What the court below knew from the record in this case,

beyond doubt, is that the Defendant committed a “forcible sex

offense” which is an enumerated “crime of violence.” As this

Court, en banc, stated in its closing in Strickland, “[t]he modified categorical approach is not a judicial version of threecard monte. Rather, the challenge is to determine whether a

conviction under a non-categorical state statute was clearly

based on facts that meet the federal generic definition of the

crime.” 601 F.3d at 970. (emphasis added).

As such, I would AFFIRM the sentence of the District

Court. 

13858 UNITED STATES v. ESPINOZA-MORALES