FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50306

Plaintiff-Appellee, D.C. No.

v.  3:10-cr-00109-

DMS-1 PABLO RUIZ-APOLONIO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

March 11, 2011—Pasadena, California

Filed September 14, 2011

Before: Betty B. Fletcher and Kim McLane Wardlaw,

Circuit Judges, and Brett M. Kavanaugh, Circuit Judge.*

Opinion by Judge Wardlaw

*The Honorable Brett M. Kavanaugh, Circuit Judge for the District of

Columbia Circuit, sitting by designation. 

17467
COUNSEL

James Fife, Assistant Federal Public Defender, Federal

Defenders of San Diego, Inc., for defendant-appellant Pablo

Ruiz-Apolonio.

Laura E. Duffy, United States Attorney, and Bruce R. Castetter and Daniel Earl Zipp, Assistant United States Attorneys,

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

America.

17470 UNITED STATES v. RUIZ-APOLONIO
OPINION

WARDLAW, Circuit Judge:

Pablo Ruiz-Apolonio appeals the 46-month sentence of

imprisonment imposed following his guilty plea to one count

of illegal reentry under 8 U.S.C. § 1326. Because we agree

with the district court that a conviction for forcible rape under

California Penal Code § 261(a)(2) is categorically a “crime of

violence” as defined by the Sentencing Guidelines, we hold

that the district court correctly imposed a 16-level sentencing

enhancement. We also hold that the district court did not commit procedural error in calculating the Guidelines range and

that the sentence of 46 months was not substantively unreasonable. We therefore affirm.

I.

In 2007, Ruiz pleaded guilty under California Penal Code

§ 261(a)(2) to one count of forcible rape, a crime he committed in 2002. He was deported to Mexico on September 9,

2009, but reentered the United States without permission on

November 13, 2009. On February 9, 2010, Ruiz pleaded

guilty to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. At sentencing, the district court found

that Ruiz’s prior California conviction under § 261(a)(2) constituted a “crime of violence” within the meaning of the Sentencing Guidelines and therefore warranted a 16-level upward

adjustment of the offense level, resulting in a total offense

level of 21. The court then found that Ruiz’s criminal history

score was 6, which placed him into Criminal History Category III, resulting in a Guidelines sentencing range of 46-57

months of imprisonment. 

In addition to his argument that rape under California Penal

Code § 261(a)(2) is not categorically a crime of violence

under U.S.S.G. § 2L1.2, Ruiz raised two specific objections to

the Guidelines calculation. First, while he conceded that he

UNITED STATES v. RUIZ-APOLONIO 17471
had committed his illegal reentry offense within two years of

release from prison, he nonetheless argued that the district

court’s addition of two “recency” points under U.S.S.G.

§ 4A1.1(e) was improper. He based this argument on the Sentencing Commission’s January 21, 2010 proposal to amend

the Guidelines to eliminate the calculation of recency points

from U.S.S.G. § 4A1.1(e), and the Commission’s statement

that inclusion of such recency points “only minimally

improves” the predictability of recidivism. Although the proposal had not yet gone into effect on the date of sentencing,

Ruiz believed that the district court should apply it. Second,

Ruiz argued that, because the Bureau of Prisons allegedly calculates “good time” credits differently than does the Sentencing Commission, the Guidelines sentencing range was

effectively increased to compensate for time off that Ruiz

could not possibly earn. 

The district court rejected both arguments without explanation and then considered the 18 U.S.C. § 3553(a) factors. Discussing what it termed “a number of aggravating facts,” the

court noted that the circumstances of the 2002 rape were very

serious, demonstrating that Ruiz was a danger to society. The

court added that it had carefully considered the mitigating factors laid out in a letter from Ruiz’s sister, as well as the Probation Office’s recommendation of 57 months of imprisonment.

The court concluded that a sentence at the low end of the

Guidelines range was appropriate and sentenced Ruiz to 46

months of imprisonment, with two years supervised release,

no fine, and a $100 special assessment.

II.

“Whether a conviction constitutes a crime of violence

under the Guidelines is reviewed de novo.” United States v.

Jennen, 596 F.3d 594, 600 (9th Cir. 2010). 

We review the sentence imposed by the district court for

abuse of discretion. United States v. Carty, 520 F.3d 984, 993

17472 UNITED STATES v. RUIZ-APOLONIO
(9th Cir. 2008) (en banc); see also Gall v. United States, 552

U.S. 38, 46 (2007). We will reverse the sentence only where

it was procedurally erroneous or substantively unreasonable.

Carty, 520 F.3d at 993. “It would be procedural error for a

district court to fail to calculate — or to calculate incorrectly

— the Guidelines range . . . or to fail adequately to explain

the sentence selected, including any deviation from the

Guidelines range.” Id. (citing Gall, 552 U.S. at 51). The

explanation must be sufficient “to permit meaningful appellate review.” Id. at 992 (citing Rita v. United States, 551 U.S.

338, 356 (2007)). While the district court “need not . . . articulate in a vacuum how each § 3553(a) factor influences its

determination of an appropriate sentence,” when “a party

raises a specific, nonfrivolous argument tethered to a relevant

§ 3553(a) factor in support of a requested sentence, then the

judge should normally explain why he accepts or rejects the

party’s position.” Id. at 992-93. That said, lengthy explanations of sentencing decisions are not necessary “if ‘the record

makes clear that the sentencing judge considered the evidence

and arguments.’ ” United States v. Daniels, 541 F.3d 915, 922

(9th Cir. 2008) (quoting Rita, 551 U.S. at 359).

In addressing whether Ruiz’s sentence was substantively

unreasonable, we must consider “the totality of the circumstances.” Carty, 520 F.3d at 993. “A substantively reasonable

sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” United

States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). “The touchstone of ‘reasonableness’

is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C.

§ 3553(a).” United States v. Tomko, 562 F.3d 558, 568 (3d

Cir. 2009) (quoting United States v. Grier, 475 F.3d 556, 571

(3d Cir. 2007) (en banc)); see also United States v. Ellis, 641

F.3d 411, 423 (9th Cir. 2011).

III.

The district court did not err by increasing Ruiz’s offense

level by 16 levels on the basis of Ruiz’s 2007 conviction for

UNITED STATES v. RUIZ-APOLONIO 17473
rape in California, because a conviction under California

Penal Code § 261(a)(2) is categorically a crime of violence

under U.S.S.G. § 2L1.2. 

[1] California Penal Code § 261(a)(2) defines rape as “an

act of sexual intercourse accomplished with a person not the

spouse of the perpetrator . . . [w]here it is accomplished

against a person’s will by means of force, violence, duress,

menace, or fear of immediate and unlawful bodily injury on

the person or another.” The illegal reentry sentencing guidelines provide that a defendant’s offense level shall be

increased 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). To determine whether California Penal Code § 261(a)(2) is categorically a “crime of violence,” we apply the “categorical approach” set forth in

Taylor v. United States, 495 U.S. 575, 602 (1990). Under the

categorical approach, we look “ ‘not to the particular facts

underlying [the defendant’s prior] conviction [ ],’ but ‘only to

the fact of conviction and the statutory definition of the prior

offense,’ in order to determine whether the state statute could

potentially criminalize conduct that would not qualify as” a

crime of violence. United States v. Aguila-Montes de Oca,

No. 05-50170, slip op. at 10586 (9th Cir. Aug. 11, 2011) (en

banc) (alterations in original) (quoting Taylor, 495 U.S. at

600, 602). The sentencing enhancement is applicable under

the categorical approach only if “the full range of conduct

covered by the state statute . . . fall[s] within the scope of the

federal statutory provision.” United States v. Pallares-Galan,

359 F.3d 1088, 1099-1100 (9th Cir. 2004) (citation omitted).

[2] Application Note 1(B)(iii) to U.S.S.G. § 2L1.2 defines

“crime of violence” to include “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. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2010). Therefore, we must decide

17474 UNITED STATES v. RUIZ-APOLONIO
whether California Penal Code § 261(a)(2) is a “forcible sex

offense.” Before the 2008 Sentencing Guidelines became

effective, Application Note 1(B)(iii) to U.S.S.G. § 2L1.2 had

defined “crime of violence” to include only three types of sexual offenses: “forcible sex offenses, statutory rape, [and] sexual abuse of a minor.” See, e.g., U.S. Sentencing Guidelines

Manual § 2L1.2 cmt. n.1(B)(iii) (2007). Both we and the Fifth

Circuit construed the term “forcible sex offense” as requiring

the use of some physical force above and beyond that required

for penetration. See, e.g., United States v. Beltran-Munguia,

489 F.3d 1042, 1051 (9th Cir. 2007); United States v.

Luciano-Rodriguez, 442 F.3d 320, 323 (5th Cir. 2006); United

States v. Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004).

In 2007, citing Sarmiento-Funes, the Fifth Circuit held that a

conviction for rape under California Penal Code § 261(a)(2)

was not categorically a crime of violence under the Guidelines because the statute criminalized sexual intercourse

(including intercourse accomplished through fear or duress)

accomplished without the use of physical force. United States

v. Gomez-Gomez, 493 F.3d 562, 567 (5th Cir. 2007) [hereinafter Gomez-Gomez I]. The Fifth Circuit later reheard this

decision en banc and unanimously changed direction, holding

that a conviction under California Penal Code § 261(a)(2) did

categorically constitute a crime of violence. United States v.

Gomez-Gomez, 547 F.3d 242, 246, 248 (5th Cir. 2008) (en

banc) [hereinafter Gomez-Gomez II]. In 2008, in direct

response to the earlier decisions in Luciano-Rodriguez,

Sarmiento-Funes, and Gomez-Gomez I, the Sentencing Commission promulgated Amendment 722, which modified the

definition of Application Note 1(B)(iii) to include within the

definition of “forcible sex offenses” those sex offenses

“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. Sentencing Guidelines Manual

Supp. to App. C (2008), at 296. 

Focusing on the 2008 version of Application Note 1(B)(iii),

Ruiz argues that § 261(a)(2) criminalizes conduct that does

UNITED STATES v. RUIZ-APOLONIO 17475
not fall within the Guidelines definition of “crimes of violence,” because it is theoretically possible to convict a perpetrator who passively exploits a victim’s unreasonable,

subjective fear of immediate and unlawful bodily injury even

though he has not committed a “forcible sex offense.” Specifically, Ruiz imagines the possibility of a victim who silently

assents to intercourse under circumstances where the victim

unreasonably believes that failure to assent will result in

harm, even though the perpetrator has taken no intentional

actions to create this fear. Such a hypothetical victim, Ruiz

argues, has given consent that is neither involuntary nor

actively coerced. 

Ruiz’s argument fails in several ways. First, the premise

that his hypothetical perpetrator would not have committed a

“forcible sex offense” depends upon an overly restrictive textual parsing of the Application Note. Ruiz suggests that “involuntary” consent can mean only consent obtained by fraud

or intoxication, because otherwise the terms “involuntary”

and “coerced” would be redundant.1 Ruiz also suggests that in

1Ruiz argues that § 2L1.2 describes three means of vitiating consent: (1)

coercion, or “duress without actual force”; (2) incompetence (by reason of

age or mental condition); and (3) involuntariness, which he takes to mean

“by fraud or drugging.” There is no question in this appeal about incompetent consent. As support for his restrictive reading of involuntariness, Ruiz

argues that these three scenarios are the only ones presented in the three

Fifth Circuit cases the Sentencing Commission cited in explaining the

need for Amendment 722. See U.S. Sentencing Guidelines Manual Supp.

to App. C (2008), at 296; Luciano-Rodriguez, 442 F.3d at 323; SarmientoFunes, 374 F.3d at 341; Gomez-Gomez I, 493 F.3d at 567. Those cases,

however, were referenced because they were all examples — clearly not

exhaustive — of courts excluding forcible sex crimes from the definition

of crimes of violence where the victims may have assented, though there

was no legally valid consent. See U.S. Sentencing Guidelines Manual

Supp. to App. C (2008), at 296. The Commission’s reasoning simply demonstrates that it wanted a black-letter rule that forcible sex offenses are

crimes of violence, “regardless of whether the prior offense expressly has

as an element the use, attempted use, or threatened use of physical force

against the person of another.” Id. (quotation omitted). 

17476 UNITED STATES v. RUIZ-APOLONIO
order to “coerce” consent, a perpetrator must intentionally act,

and so there cannot be coercion where a perpetrator is entirely

passive. See, e.g., Black’s Law Dictionary 294 (9th ed. 2009)

(defining coercion as “[c]ompulsion by physical force or

threat of physical force”). There is no reason, however, to

read either “involuntary” consent or “coerced” consent in

such a limited fashion. That the Commission cited three particular decisions in explaining its reasons for amending the

Application Note does not mean that the Commission thought

those decisions exhaustively articulated all the circumstances

captured by the amended definition of “forcible sex offenses.”

The sort of “consent” that Ruiz envisions, where a victim

assents only because he or she subjectively and unreasonably

fears immediate and unlawful bodily harm, is clearly “involuntary.” Even were Ruiz correct that his hypothetical victim’s

assent would not constitute “involuntary” or “coerced” consent, moreover, the plain language of the Application Note

makes it clear that the Guidelines definition of “forcible sex

offenses” captures other sorts of invalid “consent” as well.

See U.S. Sentencing Guidelines Manual § 2L1.2 cmt.

n.1(B)(iii) (2010) (“[I]ncluding 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.” (emphasis added)); see also U.S. Sentencing Guidelines Manual

§ 1B1.1 cmt. n.2 (2010) (“The term ‘includes’ is not exhaustive.”). 

[3] Second, the plain language of California Penal Code

§ 261(a)(2) makes clear that it does not criminalize sexual

intercourse where a victim actually consents. The statute

criminalizes only “sexual intercourse . . . accomplished

against a person’s will.” Cal. Penal Code § 261(a)(2). Under

California law “against a person’s will” in the context of sexual assault “means ‘without the consent of the alleged victim.’ ” People v. Lee, 248 P.3d 651, 664 n.10 (Cal. 2011);

Gomez-Gomez II, 547 F.3d at 248 (“Such offenses [under

§ 261(a)(2)], by definition, involve victims who have not consented in fact, even if the victim has nominally consented.”).

UNITED STATES v. RUIZ-APOLONIO 17477
Indeed, the jury instructions for rape cases under § 261(a)(2)

promulgated by the Committee on California Criminal Jury

Instructions defines “[a]gainst that person’s will” as “without

the consent of the alleged victim.” CALJIC 10.00. The Judicial Council of California Criminal Jury Instructions are even

more direct: “To prove that the Defendant is guilty of [rape

under § 261(a)(2)], the People must prove that . . . [t]he

woman did not consent to the intercourse . . . .” CALCRIM

1000 (2011).2

Third, in any event, it is not clear that Ruiz’s hypothetical

passive and unreasonable victim actually “consents,” even

under California’s definition of “consent.” California Penal

Code § 261.6 defines “consent” as “positive cooperation in

act or attitude pursuant to an exercise of free will. The person

must act freely and voluntarily and have knowledge of the

nature of the act or transaction involved.” Ruiz argues that,

where a victim assents or acquiesces to intercourse only

because of force, duress, or fear of harm, but positively cooperates “in act or attitude,” the victim has actually “consented.”

Ruiz, however, ignores the second half of the definition. Even

if he is correct that a victim who assents to intercourse out of

an unreasonable fear of immediate and unlawful injury “consents” by somehow “positive[ly] cooperat[ing] . . . pursuant

to an exercise of free will,” such a victim surely is not acting

“freely and voluntarily.” See, e.g., Gomez-Gomez II, 547 F.3d

at 248 (“A mere word or action indicating consent that is

given under duress, whether through physical or nonphysical

means, and against the free will of the victim, indicates nothing about whether the victim in fact wishes to engage in sex

. . . .”). But see Lee, 248 P.3d at 669 (California Supreme

Court declined to reach the questions of “whether an instruction that consent may be proved by evidence of an alleged

2California courts use both sets of instructions, though courts are

“strongly encouraged” to use the Judicial Council instructions. See Cal.

Rules of Court, Rule 2.1050(e). 

17478 UNITED STATES v. RUIZ-APOLONIO
rape victim’s passive acquiescence would be consistent with

the intent of the Legislature as expressed in section 261.6”).

While Ruiz’s hypothetical argument is inventive, to show

that a state statute criminalizes conduct that lies outside the

generic definition of a listed crime in a federal statute, the

defendant must demonstrate that there is “a realistic probability, not a theoretical possibility, that the State would apply its

statute to conduct that falls outside the generic definition of

a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007). To do so, the defendant must point to at least one case

in which the state courts applied the statute in the manner that

he posits. Id.; see also United States v. Laurico-Yeno, 590

F.3d 818, 822 (9th Cir. 2010). Ruiz contends that there is a

“realistic probability” that California courts would apply California’s forcible rape statute to offenses beyond those

included in the generic definition. He points to three decisions

of the California courts where, he claims, the victim consented to the sexual intercourse, but the defendant was nevertheless convicted of rape under § 261(a)(2). These decisions,

however, do not demonstrate that the California courts would

uphold a § 261(a)(2) conviction where a victim consents to

intercourse only because of a subjective, unreasonable fear of

immediate and unlawful bodily harm, because in each of the

three decisions Ruiz cites the victims did not consent to intercourse. 

Ruiz first cites People v. Young, 235 Cal. Rptr. 361, 367-68

(Ct. App. 1987). Ruiz argues that Young demonstrates that

“subjective fear in the absence of deliberate, coercive acts of

the defendant” is sufficient to meet the requirement in

§ 261(a)(2) that the intercourse with a nonspouse be “accomplished against a person’s will by means of force, violence,

duress, menace, or fear of immediate and unlawful bodily

injury on the person or another.” In Young, a twenty-six-yearold father was convicted under what is now § 261(a)(2)3

 after

3At the time, California Penal Code § 261(a)(2) was codified as

§ 261(2). 

UNITED STATES v. RUIZ-APOLONIO 17479
his six-year-old daughter testified that he had oral and vaginal

intercourse with her. Id. at 362-63. The victim testified that

she did not want to engage in intercourse with her father, but

was “too scared” to object, although the defendant “did not

say anything to [the victim] that made her afraid.” Id. The

California Court of Appeal overturned the conviction, concluding that, while the evidence was sufficient to show that

the sexual intercourse was accomplished against the victim’s

will by means of force, there was “no substantial evidence

that defendant accomplished the act of sexual intercourse by

means of fear of immediate and unlawful bodily injury,” and

it was “unable to state with any degree of certainty which theory the jury may have used to find” the defendant guilty. Id.

at 367. While Ruiz cites Young for the court’s holding that

“[e]ven [a victim’s] unreasonable fear” of immediate and

unlawful bodily injury would be sufficient to sustain a

§ 261(a)(2) conviction, he ignores the court’s holding that,

given the evidence, “[t]he jury could . . . properly find that the

act of sexual intercourse was against [the victim’s] will since

she did not want to do it and the evidence did not otherwise

establish positive cooperation in act or attitude.”

4

Id. Thus,

Young does not stand for the proposition that a defendant can

be convicted under § 261(a)(2) where a victim consents.

Ruiz next cites In re John Z., 60 P.3d 183, 185 (Cal. 2003),

which, he argues, demonstrates that a defendant can be convicted under § 261(a)(2) after engaging in consensual sex. In

John Z., a minor defendant was convicted of forcible rape

after he and the seventeen-year-old victim began engaging in

“apparently consensual intercourse,” but “the victim

expresse[d] an objection and attempt[ed] to stop the act and

the defendant forcibly continue[d] despite the objection.” Id.

4The Young court, moreover, overturned the defendant’s rape conviction

due to insufficiency of the evidence. Given the court’s holding that the

evidence was sufficient to show that the intercourse was against the victim’s will, we need not consider whether a decision overturning a conviction can satisfy the Duenas-Alvarez requirement. 

17480 UNITED STATES v. RUIZ-APOLONIO
The California Supreme Court affirmed the conviction, holding — contrary to Ruiz’s arguments — that the victim did not

consent. Indeed, the California Supreme Court observed that,

even if the victim “initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence

shows that she withdrew her consent and, through her actions

and words, communicated that fact.” John Z., 60 P.3d at 186-

87. “[N]o reasonable person in defendant’s position would

have believed that [the victim] continued to consent to the

act,” the Court added. Id. at 187.

Finally, Ruiz cites People v. Iniguez, 872 P.2d 1183, 1188

(Cal. 1994), which, he argues, demonstrates both: (1) that a

defendant can be convicted under § 261(a)(2) where the

defendant knowingly uses, but does not intentionally create,

a victim’s objectively unreasonable fear; and (2) that a defendant can be convicted under § 261(a)(2) where the victim consents. In Iniguez, the defendant, who was the fiancé of the

victim’s close friend and who had just met the victim that

night, admitted that “he approached her as she slept on the living room floor, removed her pants, fondled her buttocks, and

had sexual intercourse with her,” all without saying anything.

Id. at 1184-85. The victim, who was staying at her friend’s

house on the night before her wedding, testified that she was

too scared to use physical force to resist a man whom she did

not know, who outweighed her by 100 pounds, and who

approached her silently while she was sleeping. Id. While the

California Supreme Court affirmed the conviction, Iniguez

does not demonstrate that a defendant can be convicted of

rape under § 261(a)(2) where a victim consents; indeed, the

court explicitly found that the evidence was sufficient to show

“that the sexual intercourse was accomplished against [the

victim’s] will by means of fear of immediate and unlawful

bodily injury.” Id. at 1188 (emphasis added). 

[4] Given Ruiz’s inability to identify any case in which the

state courts applied the statute where a victim had consented

to intercourse — a reading that would run contrary to the

UNITED STATES v. RUIZ-APOLONIO 17481
plain language of § 261(a)(2) — the district court did not err

by applying the 16-level “crime of violence” offense level

increase authorized by U.S.S.G. § 2L1.2(b)(1)(A)(ii).5

IV.

The district court did not commit either procedural or substantive error by denying the variances Ruiz requested to

compensate for the inclusion of “recency” points and the supposed differences between the Sentencing Commission’s and

Bureau of Prisons’ methods for calculating good time credits,

or by declining to explain why it rejected Ruiz’s arguments

for the variances.6

A. Substantive Unreasonableness

1. Recency Points

The district court’s rejection of the requested variance to

account for the inclusion in the Guidelines calculation of

recency points did not render Ruiz’s sentence substantively

unreasonable.7

5Because we conclude that a conviction under § 261(a)(2) is categorically a crime of violence, we need not address the application of the modified categorical approach. 

6Ordinarily, “we first consider whether the district court committed significant procedural error,” and only then consider the substantive reasonableness of a sentence. Carty, 520 F.3d at 993. Here, however, Ruiz’s

procedural arguments regarding the district court’s response to his

requests for a variance are best understood in light of the substantive reasonableness analysis regarding those requested variances. While in considering Ruiz’s appeal we have followed the order described in Carty, for

purposes of clarity, we address substantive unreasonableness first. 

7To the extent Ruiz suggests that the court procedurally erred by calculating the recency points, he is wrong. It “would be procedural error for

a district court to fail to calculate — or to calculate incorrectly — the

Guidelines range.” Carty, 520 F.3d at 993 (citing Gall, 552 U.S. at 50).

Courts “shall use the Guidelines Manual in effect on the date that the

defendant is sentenced.” U.S.S.G. § 1B1.11(a). In calculating the Guidelines range, the district court properly used the Guidelines Manual in

effect at the time of sentencing. 

17482 UNITED STATES v. RUIZ-APOLONIO
[5] At the time of Ruiz’s sentencing, to calculate the criminal history score, the district court was to “[a]dd 2 points if

the defendant committed the instant offense less than two

years after release from imprisonment on a sentence counted

under (a) or (b) or while in imprisonment or escape status on

such a sentence.” U.S.S.G. § 4A1.1(e) (2009).8 On January

21, 2010, however, the Sentencing Commission proposed

Amendment 742, which eliminated the addition of points due

to recency of a prior sentence. U.S. Sentencing Guidelines

Manual § 4A1.1(e) (Proposed Amendment 2010). In an April

19, 2010 press release, the Commission stated that the addition of recency points might “result in a single criminal history event having excessive weight in the determination of the

applicable guideline range.” Press Release, U.S. Sent’g

Comm’n, U.S. Sentencing Commission Votes to Send to Congress Guideline Amendments Providing More Alternatives to

Incarceration, Increasing Consideration of Certain Specific

Offender Characteristics During the Sentencing Process (Apr.

19, 2010). The Commission added that “deletion of the provision did not detract from the overall ability of the criminal

history score . . . to predict an offender’s likelihood of recidivism.” Id. In an April 30, 2010 policy statement on the proposed amendment, the Commission further explained that

consideration of recency “only minimally improves the predictive ability” of the criminal history score, and that it had

received public comment and testimony suggesting that

recency “does not necessarily reflect increased culpability.”

U.S. Sent’g Comm’n, Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 14-15

(2010). The amendment took effect November 1, 2010;

recency points are no longer included in the calculation of

criminal history points. 

8Subsection (a) addresses a prior sentence of imprisonment that exceeds

one year and one month; subsection (b) addresses prior sentences of

imprisonment of at least sixty days not counted in subsection (a). 

UNITED STATES v. RUIZ-APOLONIO 17483
Ruiz argues that, in accord with the general parsimony

principle of 18 U.S.C. § 3553(a), the district court should

have varied downward because recency points were “empirically unjustified” when he was sentenced. Ruiz cites Kimbrough v. United States, 552 U.S. 85, 101 (2007), in which

the Supreme Court, addressing the crack and powder cocaine

equivalencies, held that courts may vary from the Guidelines

ranges “based solely on policy considerations, including disagreements with the Guidelines,” after considering the

§ 3553(a) factors, including the “overarching” parsimony provision. Id. (quotation omitted). The Kimbrough Court reasoned that the Commission’s recommendations are generally

based “on empirical data and national experience,” but that in

formulating the crack cocaine ranges, the Commission was

not permitted to consider such data. See id. at 109-10. The

implication is that the Guidelines ranges are given more

weight when they are based on the Commission’s analysis of

empirical data and national experience, and they are due less

weight when they regularly result in sentences that are

“ ‘greater than necessary’ in light of the purposes of sentencing set forth in § 3553(a).” See id.; see also Spears v. United

States, 555 U.S. 261, 264-65 (2009). 

[6] We have not previously addressed this recency points

variance argument in a published opinion. The First Circuit

has done so and has rejected it. See United States v. Adams,

640 F.3d 41, 43 (1st Cir. 2011). In unpublished opinions,

moreover, we, along with at least five other circuits, have

similarly rejected versions of the argument that a variance

was required after the Commission promulgated the amendment but before the amendment became effective. See, e.g.,

United States v. Prado-Figueroa, No. 10-10305, 2011 WL

2784098, at *1 (9th Cir. Jul. 18, 2011); United States v.

Rodriguez-Sanchez, No. 10-10217, 2011 WL 1898202, at *1

(9th Cir. May 19, 2011); United States v. Gonzalez-Molina,

409 Fed. App’x 751, 752 (5th Cir. 2011) (per curiam); In re

Anderson, 409 Fed. App’x 593, 594 (3d Cir. 2011) (per

curiam); United States v. Gadsden, 412 Fed. App’x 523, 525

17484 UNITED STATES v. RUIZ-APOLONIO
(3d Cir. 2011); United States v. Dennis, 412 Fed. App’x 452,

454-55 (3d Cir. 2011); United States v. Mitchell, 403 Fed.

App’x 560, 562 (2d Cir. 2010). No circuit has found a sentence substantively unreasonable where, after promulgation of

the proposed amendment that reduced the sentencing range, a

court declined to vary downward to account for inclusion of

recency points in the Guidelines calculation. 

[7] A sentencing court, of course, has the discretion to

grant a variance from the Guidelines after promulgation but

before adoption of a proposed amendment, based on its policy

disagreement with the existing Guidelines provision, especially where, as here, the Commission has acted to remedy the

basis for the court’s disagreement. Kimbrough, 552 U.S. at

101. However, where an amendment has been promulgated

but has not yet been adopted, district courts are not required

to consider that amendment in the § 3553 analysis unless the

amendment has been given retroactive effect by express decision of the Commission. See Braxton v. United States, 500

U.S. 344, 348 (1991) (“In addition to the duty to review and

revise the Guidelines, Congress has granted the Commission

the unusual explicit power to decide whether and to what

extent its amendments reducing sentences will be given retroactive effect.”) (emphasis and citation omitted).

“[S]ubstantive amendments to the guidelines that occur

between the date of sentencing and the resolution of an appeal

have no retroactive effect unless specifically referenced in

U.S.S.G. § 1B1.10.” United States v. Diaz-Cardenas, 351

F.3d 404, 409 (9th Cir. 2003) (citing United States v. AldanaOrtiz, 6 F.3d 601, 603 (9th Cir. 1993)).9

 Amendment 742 is

9The Commission can also vote to make retroactive a Guidelines

amendment initially proposed as prospective. On June 30, 2011, for example, the Commission unanimously voted to give limited retroactive effect

to the Guidelines amendment reducing sentences of imprisonment for

offenses involving crack cocaine proposed to implement the Fair Sentencing Act of 2010, Pub. L. 111-220, even though the Guidelines amendment,

as initially promulgated, was prospective only. Both the amendment and

the retroactivity provision become effective on November 1, 2011, absent

congressional action to the contrary. 

UNITED STATES v. RUIZ-APOLONIO 17485
not listed in U.S.S.G. § 1B1.10 (2010); indeed, the Commission explicitly chose not to make it retroactive. See U.S.

Sentn’g Comm’n Public Meeting Minutes (Sept. 16, 2010),

www.ussc.gov/Legislative_and_Public_Affairs/Public_

Hearings_and_Meetings/20100916/20100916_Minutes.pdf.

That the Commission has promulgated a not-yet-adopted

amendment that is very likely to be adopted and that would

result in reduced Guidelines ranges does not render a district

court’s failure to grant a variance substantively unreasonable.

This is not to say that the district court could not have granted

the requested variance after considering all of the § 3553 factors and “the totality of the circumstances.” Carty, 520 F.3d

at 993. 

[8] Therefore, the district court did not improperly include

recency points in calculating the Guidelines range of 46 to 57

months of imprisonment. Though the government recommended 57 months of imprisonment, the district court reasonably imposed a sentence of 46 months of imprisonment. Had

the district court not included recency points in Ruiz’s criminal history score, the 46 months would also have been at the

midpoint of the applicable Guidelines range of 41-51 months.

We therefore conclude that the district court’s rejection of this

argument did not render the sentence substantively unreasonable. 

2. Good Time Calculation

Ruiz argues that the court erred by rejecting a variance to

account for what he maintains is a difference in the way the

Sentencing Commission and the Bureau of Prisons (BOP) calculate good-time credits. The Guidelines, he argues, overcompensate for credits that will never be earned, and therefore his

sentence of imprisonment should have been reduced from the

low end of the Guidelines range by an additional one month

(rounded up from 19 days).

[9] This argument is an attempt to reframe the arguments

raised by the petitioners in Barber v. Thomas, 130 S. Ct.

17486 UNITED STATES v. RUIZ-APOLONIO
2499, 2502 (2010), who challenged the BOP’s methodology

for calculating good-time credits under 18 U.S.C.

§ 3624(b)(1). § 3624(b)(1) permits an award of up to 54 days

of good-time credit per year of imprisonment. The BOP calculates such credits on the basis of time served, rather than

time imposed. Under the BOP’s calculations, a well-behaved

prisoner serving a ten-year term may receive 470 days of

good-time credit. Id. at 2503. At the end of each year, the

BOP subtracts 54 days from the sentence. Id. at 2502. A consistently well-behaved prisoner serving a ten-year term, however, will get out before the end of that sentence. Id. at 2513

(Kennedy, J., dissenting). Thus, the BOP’s methodology in

calculating credit precludes prisoners from earning credit they

would otherwise have earned had they not been released early

for good behavior. Id. at 2505. The Barber petitioners argued

that they should instead be able to earn up to 540 days (54

days per year) of credit while serving a ten-year sentence,

regardless of when they are released. Id. at 2503. The

Supreme Court rejected this argument, holding that the BOP’s

method of calculation reflected the most natural reading of the

statute. Id. at 2504.

In support, the Barber petitioners cited both a statement the

Sentencing Commission made in 1987 and “a reference in

later editions of the Guidelines to a potential credit of

‘approximately fifteen percent for good behavior,’ ” id. at

2508, which, they argued, suggested that the “Commission set

its Guideline ranges with the expectation that well-behaved

prisoners would receive good time credit of up to 15% of the

sentence imposed, not 15% of the time actually served.”

10 Id.

Ruiz, relying on exactly the same evidence, contends that it

actually demonstrates that all Guidelines sentences are too

long — by 19 days in his case.

[10] Regardless of whether Ruiz is correct that § 3553’s

parsimony principle would mandate a variance due to the

1054 days per year is approximately 15%. 

UNITED STATES v. RUIZ-APOLONIO 17487
time-imposed and time-served assumptions by the Commission and the BOP, the Supreme Court has already concluded

that the evidence is inconclusive as to whether the BOP and

the Commission acted on different assumptions:

[W]e can find no indication that the Commission, in

writing its Supplementary Report or in the Guidelines themselves, considered or referred to the particular question here before us, that is whether good

time credit is to be based on time served or the sentence imposed. The Guidelines Manual itself, a more

authoritative account of the Commission’s interpretive views than the Supplementary Report, says

nothing directly on that subject. . . . Because the

Commission has expressed no view on the question

before us, we need not decide whether it would be

entitled to deference had it done so. If it turns out

that the calculation of good time credit based on

prison time served rather than the sentence imposed

produces results that are more severe than the Commission finds appropriate, the Commission remains

free to adjust sentencing levels accordingly.

Id. at 2508. Ruiz concedes that the Supreme Court did not

determine whether the Sentencing Commission and the BOP

use different credit systems. More than that, however, the

Supreme Court actually concluded that the very evidence

Ruiz now cites did not even address whether the Commission

attempted to compensate for good-time credits on the basis of

whether they were calculated as a percentage of the time sentenced or time served. Accordingly, we find that Ruiz’s sentence is not substantively unreasonable on this ground. 

B. Procedural Error

[11] Ruiz argues that the district court committed procedural error by failing to provide a sufficient explanation for its

rejection of the requested variance based on recency points

17488 UNITED STATES v. RUIZ-APOLONIO
and good time credits. The court did not explicitly state that

it rejected the variance until the end of the sentencing hearing,

when the defense counsel asked whether the court rejected

both bases for the variance, and the court responded “yes.”

However, the court began the sentencing hearing by stating

that it had reviewed “the P.S.R., Government’s sentencing

summary chart, the rap sheet summary, the objections to the

P.S.R., the Defendant’s request for departures, the revised

sentencing summary chart, Defendant’s sentencing memorandum, the letters that were submitted therewith, and the addendum to the P.S.R.” The court then explained thoroughly, with

reference to numerous § 3553(a) factors, the basis for its conclusion that a sentence of 46 months was appropriate. The district court is not required to provide a detailed explanation as

to each of its reasons for rejecting every argument made by

counsel. See, e.g., Carty, 520 F.3d at 992; see also Rita, 551

U.S. at 359 (“Where a matter is as conceptually simple as in

the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not

believe the law requires the judge to write more extensively.”). Given that the court reviewed all the relevant submitted

materials, correctly calculated the applicable range using the

Guidelines in effect at the time of sentencing, and thoroughly

explained its reasons for imposing the sentence of imprisonment it did, the district court did not commit procedural error

by not offering a more in-depth explanation of why it rejected

the variances Ruiz requested.

V.

Ruiz also argues that, given his history, background, and

age, the district court imposed a sentence that was greater

than necessary to meet the sentencing purposes set forth in 18

U.S.C. § 3553(a)(2), and that his sentence was therefore substantively unreasonable. See 18 U.S.C. § 3553(a). In particular, Ruiz argues that: (1) his history reflects financial hardship

and lack of opportunity; (2) while his relationship with the

mother of his young daughter is now over, he reentered the

UNITED STATES v. RUIZ-APOLONIO 17489
country only to be with his daughter; (3) he lived continuously in the United States since his youth, and had culturally

assimilated; (4) he has no history of substance abuse; (5) a letter from his sister states that he needs to return to Mexico to

assist with the care of his elderly parents; (6) while in custody

he behaved well; and (7) his age of thirty-seven “places him

well beyond the prime period of highest recidivism.” Conceding that his rape conviction is serious, Ruiz argues that his

criminal history is mitigated because that rape conviction was

his sole prior conviction, and the state judge imposed a lowterm sentence, and so must have found mitigating circumstances.

These are the same arguments that the district court explicitly addressed in imposing Ruiz’s sentence. The district court

noted that there were “a number of aggravating facts,” including Ruiz’s criminal history, though the seriousness of the rape

conviction was tempered by the fact that the relevant conduct

occurred in 2002. The court discussed the letter from Ruiz’s

sister, and observed that “[t]here is, obviously, some — there

is a very good and decent side to you that many people see

and experience, and those are mitigating factors that the court

does consider.” Noting that the probation department and

government had recommended a 57-month sentence, the district court concluded that “a sentence at the low end at 46

months is the right, just and fair sentence under all of the circumstances.”

[12] As the record as a whole reflects rational and meaningful consideration of the § 3553(a) factors, see Ellis, 641

F.3d at 423, Ruiz’s sentence was not substantively unreasonable.

VI.

Ruiz also argues that the district court erred in applying

§ 1326(b)(2) because the fact of his prior conviction for commission of an aggravated felony was not charged in an indict17490 UNITED STATES v. RUIZ-APOLONIO
ment or proved to a jury. Ruiz concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S.

224 (1998), but argues that Nijhawan v. Holder, 129 S. Ct.

2294 (2009), and United States v. O’Brien, 130 S. Ct. 2169

(2010) in effect overrule Almendarez-Torres. We recently

addressed this argument, and concluded “that AlmendarezTorres has not been overruled by Nijhawan and continues to

constitute binding authority.” United States v. ValdovinosMendez, 641 F.3d 1031, 1036 (9th Cir. 2011) (citing United

States v. Leyva Martinez, 632 F.3d 568, 569-70 (9th Cir.

2011) (per curiam)).11

VII.

We hold that a conviction of forcible rape under California

Penal Code § 261(a)(2) is categorically a crime of violence

under U.S.S.G. § 2L1.2. We also conclude that the district

court committed no error in sentencing Ruiz to 46 months

imprisonment, the low end of the Guidelines range. Nor did

the district court err by enhancing Ruiz’s sentence under 8

U.S.C. § 1326(b) due to his 2002 forcible rape conviction. 

AFFIRMED

11While neither Valdovinos-Mendez nor Leyva Martinez mentions

O’Brien, the Supreme Court in O’Brien itself cited to Almendarez-Torres

as the “one exception [that] has been established” to the general rule that

elements of a crime must be charged in an indictment and proved to a jury

beyond a reasonable doubt. 130 S. Ct. at 2174. Given this reference, it is

not possible to read O’Brien as invalidating Almendarez-Torres. 

UNITED STATES v. RUIZ-APOLONIO 17491