FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10447

Plaintiff- Appellee, D.C. No.

v.  4:09-cr-00685-CKJDTF-1 ISAIAS GONZALEZ-APARICIO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

December 9, 2010—San Francisco, California

Filed June 8, 2011

Before: Robert E. Cowen,* A. Wallace Tashima and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Cowen;

Dissent by Judge Tashima

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

7487
COUNSEL

Robert Lally Miskell (argued), Assistant U.S. Attorney, Tucson, Arizona, for the appellee.

Jeffrey Glenn Buchella (argued), CJA, Tucson, Arizona, for

the appellant.

UNITED STATES v. GONZALEZ-APARICIO 7489
OPINION

COWEN, Circuit Judge

Isaias Gonzalez-Aparicio appeals from the sentence

imposed by the District Court following his guilty plea to one

count of attempted reentry after deportation. Reviewing for

plain error, we will affirm. 

I.

Gonzalez-Aparicio was born in Mexico on January 24,

1973. According to the presentence investigation report

(“PSR”) dated September 23, 2009, he moved to the United

States with his family when he was still a teenager. 

In “Part B—Defendants’ Criminal History,” the PSR stated

that Gonzalez-Aparicio was arrested on August 18, 1999, at

age 26, and then convicted on the following charge: “Count

1 — Sexual Conduct with a Minor (felony) Arizona Revised

Statutes § 13-1405, Maricopa County Superior Court, Phoenix, CR19992981.” (PSR ¶ 21.) He originally received the

following sentence: “02/02/2000 — 10 years probation, 1

year jail as condition of probation (credit for 167 days time

served).” (Id.) The sentence was then amended: “02/24/2000

— Sentence amended; condition imposing 1 year in jail

vacated and replaced by condition imposing 167 days in jail.”

(Id.) Gonzalez-Aparicio was deported to Mexico on February

23, 2000. 

The PSR went on to state that:

The defendant was represented by counsel. Court

records show he pleaded guilty to Count 1 of an

indictment charging that in November 1998 he “engaged in sexual intercourse or oral sexual contact

with [victim] a minor under the age of fifteen years,

this refers to the first intercourse[.]” Three additional

7490 UNITED STATES v. GONZALEZ-APARICIO
counts charging the defendant with sexual conduct

with the same victim were dismissed.

Arrest reports were not received, and court documents indicate only that from November 1998

through August 1999 the defendant engaged in intercourse with the victim on at least four occasions. The

defendant was released to immigration authorities

and deported on February 23, 2000. As noted above,

the defendant’s sentence was amended the day following his deportation. A Maricopa County Adult

Probation official indicated revocation proceedings

will be initiated based on the defendant’s commission of the instant offense.

(Id.)

Following this first deportation, Gonzalez-Aparicio reentered the United States. He was removed again in March

2009. On April 1, 2009, Border Patrol agents in Nogales, Arizona, observed Gonzalez-Aparicio crawling through a hole in

the international border fence. Although he attempted to run

away, he was apprehended and admitted to the agents that he

was a Mexican citizen without legal authorization to be in this

country. A federal grand jury indicted him for attempted illegal reentry after deportation under 8 U.S.C. § 1326 as

enhanced by 8 U.S.C. § 1326(b)(2). On August 20, 2009,

Gonzalez-Aparicio pled guilty.

Calculating the offense level under the Sentencing Guidelines, the PSR began with a base offense level of 8 and ultimately ended up with a total offense level of 22. Among other

things, it added 16 levels “because the defendant was previously deported subsequent to a conviction for sexual conduct

with a minor, the elements of which are equivalent to sexual

abuse of a minor and/or statutory rape, either of which is an

enumerated crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).” (Id. ¶ 10.) The PSR also found that

UNITED STATES v. GONZALEZ-APARICIO 7491
Gonzalez-Aparicio fell under criminal history category III. In

the end, the sentencing range was 51 to 63 months, and the

Probation Office recommended a sentence of 56 months.

The addendum dated September 29, 2009 indicated that the

defense (unlike the government) made no objections to the

PSR. However, the defense counsel did submit documentation

in anticipation of the sentencing hearing, including an untranslated letter in Spanish allegedly from the victim of GonzalezAparicio’s prior criminal conduct. 

At the sentencing hearing conducted on November 3, 2009

(with the assistance of an interpreter), the District Court initially asked Gonzalez-Aparicio’s attorney whether there was

any legal reason why they could not go forward with sentencing. The attorney indicated that there were none. He further

noted that he had reviewed with his client “the presentence

report including the recommendation section and the addendum to the report” and believed that his client adequately

understood the documents. (ER24.) Gonzalez-Aparicio then

indicated on the record that he was satisfied with his counsel’s

services, the attorney was able to answer any questions he

might have had, and the attorney discussed the PSR and its

recommendation with him. The District Court accordingly

ordered that the “presentence report is made a part of the

record” and expressly adopted its factual assertions because

“the report accurately describes the offense conduct.” (ER25.)

It then reviewed the PSR’s Guideline calculation, stating,

inter alia, that it accurately calculated a 16-level enhancement

because Gonzalez-Aparicio was previously deported following “a conviction for sexual conduct with a minor as outlined

in paragraph 21.” (ER26.) 

The defense counsel asked for “a more realistic sentence in

the neighborhood of 18 to 24 months.” (ER30.) Among other

things, he stated that “the most significant felony prior we are

here for involved a case of him being charged for basically

statutory rape.” (ER27.) In short, he explained that Gonzalez7492 UNITED STATES v. GONZALEZ-APARICIO
Aparicio had a consensual 6-month-long relationship when he

was 26 with a distant cousin of his common-law wife (at a

time when he was separated) who was approaching the age of

15. While the defense attorney acknowledged that the crime

“sounds” horrible and dangerous, his client was convinced

that his sentence was changed to time served in part because

the family did not want the State of Arizona to pursue

charges. (Id.) The defense counsel added that the State often

will prosecute such cases in spite of the victim’s own wishes

and went on to emphasize the fact that “the so-called victim”

actually wrote “a touching letter asking you to consider

leniency and mercy.” (ER28.)

After Gonzalez-Aparicio made a brief statement of his

own, the prosecutor concurred in the Probation Office’s sentencing recommendation. Among other things, the prosecutor

noted that she was unable to obtain “the police reports on the

statutory rape case.” (ER31.) However, she challenged her

adversary’s characterization of the matter, stating, inter alia,

that it “wasn’t a Romeo/Juliet case,” that “[h]e’s 26” and

“[s]he’s at oldest 14,” and that it is “very difficult” for victims

who are also family members and who may then be pressured

by others into not pursuing charges or even writing a letter

asking for leniency. (ER32)

In its final sentencing determination, the District Court took

into consideration the Guideline calculations, the statutory

sentencing factors, and the mitigating factors offered in support of a lesser sentence (especially with respect to GonzalezAparicio’s family circumstances). The District Court specifically noted that the section 13-1405 conviction described in

Paragraph 21 of the PSR does not constitute an aggravated

felony conviction “because the sentence was not at least one

year.” (Id.) It observed, inter alia, that “[t]here’s been no

objection to the guideline calculations” and that it “basically

adopted what the probation department has proposed.”

(ER33.) Declining “to grant a departure based on the fact that

paragraph 21 is not an aggravated felony,” the District Court

UNITED STATES v. GONZALEZ-APARICIO 7493
expressly found “that it is appropriately treated as a crime of

violence, sexual conduct with a minor under 15.” (Id.) The

District Court then observed that: “We have the summary of

the incident in paragraph 21. The court finds it is appropriate

to continue to treat that as a crime of violence and that it is

an appropriate adjudication for purposes of sentencing today

of that prior conviction.” (ER33-ER34.) Ultimately, the District Court imposed a Guideline sentence (although one at the

low end of the range due to the mitigating factors) of 51

months of imprisonment to be followed by 3 years of supervised release.

II.

Gonzalez-Aparicio contends that the District Court committed reversible procedural error by applying a 16-level

increase to the offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).1 This Guideline specifically provides for

such an increase if the defendant was previously deported following a conviction for a “crime of violence.” The Sentencing

Commission’s commentary states that: 

“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. 

1

It is uncontested that the District Court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231 and that we have appellate jurisdiction under

18 U.S.C. § 3742 and 28 U.S.C. § 1291. 

7494 UNITED STATES v. GONZALEZ-APARICIO
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In turn, Ariz. Rev. Stat.

§ 13-1405 currently states:

§ 13-1405. Sexual conduct with a minor; classification; definition.

A. Any person commits sexual conduct with a

minor by intentionally or knowingly engaging in

sexual intercourse or oral sexual contact with any

person who is under eighteen years of age.

B. Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable

pursuant to § 13-705. Sexual conduct with a minor

who is at least fifteen years of age is a class 6 felony.

Sexual conduct with a minor who is at least fifteen

years of age is a class 2 felony if the person is the

minor’s parent, stepparent, adoptive parent, legal

guardian, foster parent or the minor’s teacher or clergyman or priest and the convicted person is not eligible for suspension of sentence, probation, pardon or

release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B

until the sentence imposed has been served or commuted.

C. For the purposes of this section, “teacher”

means a certificated teacher as defined in § 15-501

or any other person who directly provides academic

instruction to pupils in any school district, charter

school, accommodation school, the Arizona state

schools for the deaf and the blind or a private school

in this state.2

2Following Gonzalez-Aparicio’s 1999 arrest and 2000 sentence, the

Arizona Legislature amended this provision to include the language “or

the minor’s teacher or clergyman or priest,” to add subsection C, and to

substitute § 13-705” for “§ 13-604.01” in subsection B because of statutory renumbering. None of these changes appear to be relevant to the current appeal. 

UNITED STATES v. GONZALEZ-APARICIO 7495
The PSR found that Gonzalez-Aparicio was convicted of a

“crime of violence” because the elements of the Arizona

offense “are equivalent to sexual abuse of a minor and/or statutory rape.” (PSR ¶ 10.) Without any objection on the part of

the defense, whether in writing or at the sentencing hearing

itself, the District Court accepted this characterization of the

prior conviction as a “crime of violence” for sentencing purposes.

The overarching principles of law that must be followed

here appear to be well established, although the parties vigorously contest whether they have been satisfied. “When an

offense is specifically enumerated by the Application Notes as

a ‘crime of violence,’ we have consistently drawn the conclusion that the offense is a per se crime of violence under the

Guidelines.” United States v. Rodriguez-Guzman, 506 F.3d

738, 741 (9th Cir. 2007) (citations omitted). In other words,

we must determine “whether the statutory definition used by

[Arizona] comports with the generic and contemporary meaning of the offense of statutory rape.” Id. at 743. 

This inquiry requires the courts to apply the categorical

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

575 (1990). “ ‘Under the categorical approach, we “compare

the elements of the statutory definition of the crime of conviction with a federal definition of the crime to determine

whether conduct proscribed by the statute is broader than the

generic federal definition.”’ ” United States v. ValenciaBarragan, 608 F.3d 1103, 1107 (9th Cir. 2010) (quoting

Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)),

cert. denied, 131 S. Ct. 539 (2010). “[E]ven the least egregious conduct the statute [of conviction] covers must qualify.”

United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.

2006) (citing Valencia v. Gonzales, 439 F.3d 1046, 1052 &

n.3 (9th Cir. 2006)). Furthermore, the court may look only to

the fact of conviction and the statutory definition of the prior

offense. See, e.g., Valencia-Barragan, 608 F.3d at 1107. 

7496 UNITED STATES v. GONZALEZ-APARICIO
Even if the pure categorical test is not satisfied, the government may ask the court to turn to the modified categorical

approach. Where the statute of conviction is overly inclusive,

the Supreme Court allows “ ‘the sentencing court to go

beyond the mere fact of conviction.’ ” Rodriguez-Guzman

506 F.3d at 746 (quoting Taylor, 495 U.S. at 602). In short,

the court may consider whether otherwise proper documentation and “ ‘judicially noticeable facts’ ” unequivocally demonstrate that the prior offense does fall under the generic

federal definition. Id. (quoting United States v. Shumate, 329

F.3d 1026, 1029 (9th Cir. 2003), as amended by 341 F.3d 852

(9th Cir. 2003)). “[T]he modified categorical approach is

appropriate when the statute of conviction is divisible into

several crimes, some of which fall under the relevant category, and some of which do not.” Estrada-Espinoza, 546 F.3d

at 1159-60 (citing Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th

Cir. 2005)). The approach does not apply at all when the statute of conviction lacks an element of the generic crime. See,

e.g., id. at 1159. In the end, a court “can conclude that a conviction qualifies . . . ‘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.’ ” United States v. Espinoza-Morales, 621 F.3d

1141, 1149 (9th Cir. 2010) (quoting Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1131 (9th Cir. 2007)) (footnote omitted).

Gonzalez-Aparicio contends that the generic federal definition of “statutory rape” has, as one of its elements, proof that

there is at least a 4-year age difference between the perpetrator and the victim. It is undisputed that section 13-1405 lacks

any such age difference requirement. The government argues

that, at the very least, the District Court committed no plain

error with respect to whether the generic federal definition

includes such an element. The government further acknowledges that, in any case, it is necessary to turn to the modified

categorical analysis because section 13-1405(A) generally

refers to sexual conduct with “any person who is under eighUNITED STATES v. GONZALEZ-APARICIO 7497
teen years of age” and this Court has held that the generic age

of consent for “statutory rape” purposes is 16. However, it

emphasizes that the provision goes on to state in section 13-

1405(B) that “[s]exual conduct with a minor who is under fifteen years of age is a class 2 felony” and that the PSR, in turn,

asserted that “[c]ourt records show he pleaded guilty to Count

I of an indictment charging that in November 1998 he

‘engaged in sexual intercourse or oral sexual contact with

[victim] a minor under the age of fifteen years, this refers to

the first intercourse[.]’ ” (PSR ¶ 21). Gonzalez-Aparicio, for

his part, takes issue with the government’s application of the

modified approach. 

A. The Standard Of Review

[1] Under the circumstances of this appeal, the identification of the applicable standard of review is especially important. We generally review criminal sentences for abuse of

discretion, and we will not overturn a district court’s sentencing determination in the absence of procedural error or substantive unreasonableness. See, e.g., United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). A district court’s

interpretation of the Guidelines is usually reviewed de novo.

See, e.g., United States v. Cantrell, 433 F.3d 1269, 1279 (9th

Cir. 2006) (en banc). However, it is uncontested that

Gonzalez-Aparicio (who was represented by counsel) never

objected to or otherwise called into question the characterization of his prior Arizona conviction as a “crime of violence.”

He failed to do so either in writing or even at the sentencing

hearing itself. Understandably, the government argues that

this Court must apply the well-established plain error standard

of review with respect to alleged sentencing errors not raised

below. See, e.g., United States v. Charles, 581 F.3d 927, 932-

33 (9th Cir. 2009). Gonzalez-Aparicio asserts that the Court

should not do so because we are purportedly confronted with

a pure question of law and the opposing party would suffer no

prejudice as a result of the failure to raise the issue below

7498 UNITED STATES v. GONZALEZ-APARICIO
(although he further contends that he satisfies the plain error

standard in any case). 

[2] We have indicated in prior sentencing cases that we are

not limited to this standard of review where the appeal presents a pure question of law and there is no prejudice to the

opposing party. See United States v. Evans-Martinez, 611

F.3d 635, 642 (9th Cir. 2010), cert. denied, 131 S. Ct. 956

(2011); United States v. Saavedra-Velazquez, 578 F.3d 1103,

1106 (9th Cir. 2009), cert. denied, 130 S. Ct. 1547 (2010);

United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68

(9th Cir. 2001). In other words, we possess the discretion to

refrain from applying the default plain error standard of

review in certain circumstances. United States v. Burgum, 633

F.3d 810, 812 n.2 (9th Cir. 2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise

that discretion in this instance.” (citing Evans-Martinez, 611

F.3d at 642; Echavarria-Escobar, 270 F.3d at 1267-68).) We

find that it is not appropriate to exercise this discretion in light

of the specific circumstances of the current appeal. 

As we explain in further detail in the next section, there

was at the time of sentencing and still exists today confusion,

tension, and possibly even conflict in our own case law as to

whether the generic federal definition of “statutory rape”

includes a 4-year age difference element. The panels in the

decisions cited above were not confronted with such a situation (and two of the panels ultimately held that there were no

errors of law in light of prior precedent). See Evans-Martinez,

611 F.3d at 638-42 (determining sua sponte that the district

court committed procedural error by using mandatory minimum sentence for one count as Guideline sentence for all

counts); Saavedra-Velazquez, 578 F.3d at 1106-10 (following

Ninth Circuit precedent to conclude that California’s definition of attempt is not broader than definition of attempt at

common law and that accordingly attempted robbery is

“crime of violence”); Echavarria-Escobar, 270 F.3d at 1267-

71 (following every other circuit court to have considered

UNITED STATES v. GONZALEZ-APARICIO 7499
issue to conclude that suspended sentence may constitute

aggravated felony for sentencing enhancement purposes). In

contrast, a reasoned decision from the District Court, made

after the parties have presented their respective positions,

would assist us in deciding the difficult legal question of

whether there is an age difference element. The failure to

object, however, means that we have been denied such valuable assistance. We further note that this Court relatively

recently applied the plain error standard to the defendant’s

claim, asserted for the first time on appeal, that he was not a

career offender because his prior conviction did not categorically constitute a controlled substance offense. Charles, 581

F.3d at 932-36. 

[3] Pursuant to the modified categorical approach, this

Court must also consider, among other things, acceptable documentation regarding Gonzalez-Aparicio’s prior Arizona conviction. We must go beyond an abstract legal discussion of

statutory terms and criminal elements. Accordingly, this

appeal implicates more than merely a pure question of law. 

As a practical matter, the defense’s own conduct before the

District Court provides even further support for applying the

well-established plain error standard of review. In addition to

making no objection whatsoever with respect to the PSR’s

characterization of the prior conviction as a “crime of violence,” the defense essentially took this characterization as a

“given” at the sentencing hearing and even went so far as to

admit on the record that his client was 26 years old at the time

of the offense, that his “girlfriend” was under the age of 15,

and that the prior felony “involved a case of him being

charged for basically statutory rape.” (ER27.) The defense

counsel specifically asked for a sentence, based, inter alia, on

the purported facts and circumstances of the prior conviction,

that was still significantly higher than the sentencing range

that would have applied in the absence of any “crime of violence” enhancement (i.e., he asked for a sentence in the

“neighborhood” of 18 to 24 months (ER32), even though the

7500 UNITED STATES v. GONZALEZ-APARICIO
applicable range without the 16-level increase would have

been apparently only 2 to 8 months).

While such admissions and conduct may be insufficient to

satisfy the categorical or modified categorical tests themselves, they nevertheless indicate that we should decline to

exercise our discretion to apply a de novo standard of review.

We further note that, in contrast to Gonzalez-Aparicio, the

defendant in Saavedra-Velazquez did unsuccessfully argue

before the district court, admittedly on different grounds than

he raised on appeal, that the prior conviction “was not, categorically, a ‘crime of violence’ for the purposes of U.S.S.G.

§ 2L1.2 and that the 16-level upward adjustment should not

be applied.” 578 F.3d at 1105. We further add that, if the

defense had properly raised this objection, the government

may have then obtained and submitted further documentation

from the state court proceeding that could clearly be considered in any modified categorical analysis. Accordingly, the

government has suffered prejudice here.

Under the plain error standard of review, the appellant must

show that: (1) there was error; (2) the error committed was

plain; (3) the error affected substantial rights; and (4) the error

seriously affected the fairness, integrity, or public reputation

of judicial proceedings. See, e.g., United States v. Olano, 507

U.S. 725, 732 (1993); Charles, 581 F.3d at 933. To be plain,

the error must be clear or obvious, and an error “ ‘cannot be

plain where there is no controlling authority on point and

where the most closely analogous precedent leads to conflicting results.’ ” Charles, 581 F.3d at 933-34 (quoting United

States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003)).

“Plain error, as we understand that term, is error that is so

clear-cut, so obvious, a competent district judge should be

able to avoid it without benefit of objection.” United States v.

Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (citing United

States v. Frady, 456 U.S. 152, 163 (1982)). When the state of

the law is unclear at the time of trial and is then clarified by

subsequent authority, the district court’s error is still not conUNITED STATES v. GONZALEZ-APARICIO 7501
sidered plain. See, e.g., id. Therefore, plain error “normally

means error plain at the time the district court made the

alleged mistake.” Id. However there is an exception to this

general principle: “ ‘[W]here the law at the time of trial was

settled and clearly contrary to the law at the time of appeal[,]

it is enough that an error be “plain” at the time of appellate

consideration.’ ” Id. (quoting Johnson v. United States, 520

U.S. 461, 468 (1997)).

B. The Pure Categorical Approach

Even assuming arguendo that the generic crime of “statutory rape” includes a 4-year age difference requirement (or

any age difference requirement at all), we determine that any

error regarding this element would not be “so clear-cut” and

“so obvious” that “a competent district judge should be able

to avoid it without benefit of objection.” Turman, 122 F.3d at

1170. There is (and has been since before the District Court

sentenced Gonzalez-Aparicio) some confusion, tension, and

possibly even conflict in our own case law as to whether the

generic crime includes this particular element.

We begin with our ruling in United States v. GomezMendez, 486 F.3d 599 (9th Cir. 2007). In this case, the defendant argued that the district court improperly applied the 16-

level enhancement based on a prior conviction under section

261.5(d) of the California Penal Code, which stated, inter alia,

that “[a]ny person 21 years of age or older who engages in an

act of unlawful sexual intercourse with a minor who is under

16 years of age is guilty of either a misdemeanor or a felony.”

Id. at 600-03. Affirming the sentencing enhancement, we

stated, inter alia, that “[t]he term ‘statutory rape’ is ordinarily,

contemporarily, and commonly understood to mean the

unlawful sexual intercourse with a minor under the age of

consent specified by state statute.” Id. at 603 (footnote omitted). In support of this definition, we specifically quoted the

definitions of “statutory rape” in Black’s Law Dictionary, id.

at 603 n.7 (quoting Black’s Law Dictionary 1288 (8th ed.

7502 UNITED STATES v. GONZALEZ-APARICIO
2004)), as well as in an ALR annotation, id. (quoting Susan

M. Kole, Annotation, Statute Protecting Minors in a Specified

Age Range from Rape or Other Sexual Activity as Applicable

to Defendant Minor Within Protected Age Group, 18 A.L.R.

5th 856, § 2[a] (1994)).) It must be noted that none of these

definitions contain any age difference requirement. Id.

We returned to the definition of “statutory rape” in United

States v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).

The defendant challenged the application of the 16-level

enhancement based on his prior conviction under section

261(c) of the California Penal Code. Id. at 740. This provision

states in relevant part that “[a]ny person who engages in an

act of unlawful sexual intercourse with a minor who is more

than three years younger than the perpetrator is guilty of

either a misdemeanor or a felony,” and California law then

defines a minor as a “person under the age of 18 years.” Id.

at 741. In Gomez-Mendez, “[w]e went on to define statutory

rape as ‘ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor

under the age of consent specified by the state statute.” Id. at

745 (quoting Gomez-Mendez, 486 F.3d at 603). But the

Gomez-Mendez panel purportedly “did not answer the dispositive question presented here: what is the ordinary, contemporary, and common meaning of the term ‘minor’ in the

context of a statutory rape law relied on for a sentencing

enhancement?” Id. (footnote omitted). The RodriguezGuzman panel majority, based on an examination of the

Model Penal Code, federal criminal law (specifically 18

U.S.C. § 2243(a) (“Sexual abuse of a minor or ward”)), and

the approach of the overwhelming majority of the states to the

age of consent issue (as addressed in Judge Thomas’s concurring opinion in the subsequently vacated panel ruling in

Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007)),

concluded that “the term ‘minor’ in the context of a statutory

rape law means a person under sixteen years of age.” 506

F.3d at 745 (footnote omitted). We specifically observe that

both the Model Penal Code and 18 U.S.C. § 2243(a), as

UNITED STATES v. GONZALEZ-APARICIO 7503
quoted in Rodriguez-Guzman, require that the victim be younger than 16 and that there be at least a 4-year age difference

between the perpetrator and the victim. Id. In any case, this

Court further explained that the prior ruling “is . . . not in conflict with our decision here” because the statutory provision

addressed in Gomez-Mendez only criminalizes sexual intercourse with a minor under the age of 16. Id. at 745 n.6.

[4] In 2008, the en banc Court in Estrada-Espinoza v.

Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), specifically considered the following question: “[W]hether a conviction under any of four California statutory rape provisions—

California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1),

289(h)—constitutes the aggravated felony ‘sexual abuse of a

minor,’ within the meaning of 8 U.S.C. § 1101(a)(43).”

3

Id. at

1150. This Court (in a unanimous opinion written by Judge

Thomas) answered this question in the negative because each

California statutory provision defines conduct that is broader

than the generic federal definition of “sexual abuse of a

minor.” Id. at 1150-60.

We began our categorical analysis by observing that we

were “[f]ortunately” not confronted with an absence of specific congressional guidance with respect to the applicable

elements of the crime “because Congress has enumerated the

elements of the offense of ‘sexual abuse of a minor’ at 18

U.S.C. § 2243.” Id. at 1152. “Thus the generic offense of

‘sexual abuse of a minor’ requires four elements: (1) a mens

rea level of knowingly; (2) a sexual act; (3) with a minor

between the ages of 12 and 16; and (4) an age difference of

at least four years between the defendant and the minor.” Id.

We then engaged in a rather lengthy (if purportedly unnecessary) discussion of current criminal law in order to confirm

3Estrada-Espinoza was found removable as an aggravated felon under

8 U.S.C. § 1227(a)(2)(A)(iii). Estrada-Espinoza, 546 F.3d at 1151. 8

U.S.C. § 1101(a)(43)(A) “defines ‘aggravated felony’ as ‘murder, rape, or

sexual abuse of a minor.’ ” Id. at 1151. 

7504 UNITED STATES v. GONZALEZ-APARICIO
“that the congressional definition comports with ‘the ordinary,

contemporary, and common meaning of the words’ of the

term.” Id. at 1152-53 (quoting United States v. Baron-Medina,

187 F.3d 1144, 1146 (9th Cir. 1999)). In the process, we

turned, inter alia, to state “statutory rape” provisions, the

Model Penal Code’s “statutory rape” definition, and prior

case law (and frequently distinguished between sexual activity with younger children and sexual activity with older adolescents). Id. at 1153-55. In explaining why there was no need

for the aggravated felony provision to include an express statutory reference to § 2243, we specifically observed that “sexual abuse of a minor” offenses under federal and state law

“define what would, in more common parlance, be referred to

as statutory rape.” Id. at 1156. 

Even outside of the narrow “statutory rape” context, subsequent panel rulings have proceeded to distinguish this en banc

opinion. In the process, we have recognized that there are now

two generic federal definitions of “sexual abuse of a minor”

in this Circuit: (1) the so-called “statutory rape crimes only”

definition announced by the en banc Court in EstradaEspinoza and understood as covering offenses involving both

older adolescents and younger children; and (2) the preexisting definition dealing with sexual crimes against younger

children, which are considered to be per se abusive. See

United States v. Farmer, 627 F.3d 416, 417-22 (9th Cir.

2010), pet. for cert. filed, (Mar. 17, 2011) (No. 10-9620);

Valencia-Barragan, 608 F.3d at 1106-08; United States v.

Castro, 607 F.3d 566, 567-70 (9th Cir. 2010); Rivera-Cuartas

v. Holder, 605 F.3d 699, 701-02 (9th Cir. 2010); PelayoGarcia v. Holder, 589 F.3d 1010, 1012-16 (9th Cir. 2009);

United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir.

2009), cert. denied, 130 S. Ct. 1545 (2010). 

For example, we determined in Rivera-Cuartas v. Holder,

605 F.3d 699 (9th Cir. 2010), that the Arizona statutory provision at issue here does not satisfy either of these “sexual

abuse of a minor” definitions, id. at 702. In this immigration

UNITED STATES v. GONZALEZ-APARICIO 7505
proceeding, we held that “section 13-1405 does not meet the

definition for statutory rape crimes set forth in EstradaEspinoza for two reasons: (1) it lacks the age difference

requirement; and (2) is broader than the generic offense with

respect to the age of the minor because the statute applies to

persons under eighteen years of age.” Id. On the other hand,

“a crime that is not a statutory rape crime under EstradaEspinoza may still meet the federal generic offense of ‘sexual

abuse of a minor’ if (1) the conduct prohibited by the criminal

statute is sexual, (2) the statute protects a minor, and (3) the

statute requires abuse.” Id. (citing Medina-Villa, 567 F.3d at

513). The abuse element is met if the statute prohibits behavior that causes “ ‘physical or psychological harm in light of

the age of the victim in question.’ ” Id. (quoting same).

Applying this other definition, we held that section 13-1405

lacks the critical “abuse” element. Id. However, the RiveraCuartas panel only considered the “aggravated felony” statute, which—unlike the Guideline commentary at issue here—

does not include any express “statutory rape” language.

[5] To date, we have yet to consider whether—and how

Estrada-Espinoza should be applied in defining the generic

crime of “statutory rape” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

In fact, this Court actually amended two recent rulings to

eliminate such “statutory rape” discussions.

In United States v. Castro, 607 F.3d 566 (9th Cir. 2010),

the defendant challenged a 16-level sentencing enhancement

because of his prior conviction under section 288(c)(1) of the

California Penal Code, “which criminalizes lewd or lascivious

acts on a child of 14 or 15 years by a person at least ten years

older than the child,” id. at 567. Applying the two generic federal definitions of “sexual abuse of a minor,” id. at 567-70, we

held that “section 288(c)(1) is broader than the generic

offense of sexual abuse of a minor and that it therefore is not

categorically a crime of violence.” Id. at 567-68. In this

amended opinion, we also explained that “[w]e do not address

whether section 288(c)(1) constitutes the generic offense of

7506 UNITED STATES v. GONZALEZ-APARICIO
‘statutory rape’ and therefore constitutes a ‘crime of violence,’ see U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii), because the parties have not raised that issue.” Id. at 570 n.2.

Likewise, in United States v. Valencia-Barragan, 608 F.3d

1103 (9th Cir.), cert. denied, 131 S. Ct. 539 (2010), the defendant challenged a sentencing enhancement on the basis of a

prior conviction under section 9A.44.076(1) of the Washington Revised Code, id. at 1106. This provision provides that

“[a] person is guilty of rape of a child in the second degree

when the person has sexual intercourse with another who is

at least twelve years old but less than fourteen years old and

not married to the perpetrator and the perpetrator is at least

thirty-six months older than the victim.” Id. We concluded

that this conviction fell under the “abuse” definition of “sexual abuse of a minor.” Id. at 1106-08. Although the district

court ruled that the prior conviction actually qualified as “statutory rape,” we stated in our amended ruling that, “[b]ecause

we conclude that Valencia-Barragan’s conviction under section 9A.44.076(1) criminalizes conduct that satisfies the first

federal generic definition of ‘sexual abuse of a minor,’ we do

not address whether his conviction also satisfies the second

generic federal definition or whether it constitutes ‘statutory

rape.’ ” Id. at 1107.

Gonzalez-Aparicio, although he never raised the issue

below, now asks this Court to determine whether his prior

conviction under section 13-1405 “constitutes ‘statutory

rape’ ” and specifically whether the generic federal definition

of “statutory rape” includes a 4-year age difference element.

Id. We acknowledge that this is a difficult issue, further complicated by our own prior case law. For instance, our prior

decisions in Gomez-Mendez and Rodriguez-Guzman did

appear to offer a generally applicable definition of “statutory

rape,” which in turn lacks any age difference element. However, the respective defendants evidently never raised any age

difference issue on appeal (and the statutory provision in

Gomez-Mendez actually requires the perpetrator to be at least

UNITED STATES v. GONZALEZ-APARICIO 7507
21 years of age and the victim to be younger than 16 while

the provision at issue in Rodriguez-Guzman contains a 3-year

age difference requirement). Nevertheless, we are still unable

to conclude that the District Court committed any plain error

here. 

In particular, Estrada-Espinoza actually defined the phrase

“sexual abuse of a minor” as it is used in the immigration “aggravated felony” context. In contrast, the Guideline commentary at issue here expressly lists both “sexual abuse of a

minor” as well as “statutory rape” as “crimes of violence.” In

general, courts should attempt to avoid an interpretation rendering language superfluous. Cf., e.g., Medina-Villa, 567 F.3d

at 515 (stating that, “if we were to define ‘sexual abuse of a

minor’ in U.S.S.G. § 21:1.2 as limited to § 2243, we would

eliminate the need for the separate and independent example

of ‘statutory rape’ as a ‘crime of violence.’ ”). The EstradaEspinoza opinion also never discussed or even cited to our

prior “statutory rape” decisions in Gomez-Mendez and

Rodriguez-Guzman. We further add that, even in the limited

“sexual abuse of a minor” context, the en banc ruling and the

subsequent line of case law have been the target of criticism.

In a special concurrence in United States v. Farmer, 627 F.3d

416 (9th Cir. 2010), pet. for cert. filed, (Mar. 17, 2011) (No.

10-9620), Judge Bybee, joined by Judge Noonan, expressed

serious doubts about, among other things, the existence of two

definitions for the same offense, id. at 424-26 (Bybee, J., specially concurring). 

[6] In the end, we are confronted here with serious problems that arguably merit en banc consideration and that, at the

very least, should be resolved only after the defendant properly raises an objection before the district court and the district court thereby has a real opportunity to make an informed

and reasoned ruling that could assist any ultimate resolution.

At the very least, it cannot be said that any error here was so

obvious under the governing case law at the time of sentencing (or even now) that “a competent district judge should be

7508 UNITED STATES v. GONZALEZ-APARICIO
able to avoid it without benefit of objection.” Turman, 122

F.3d at 1170 (citation omitted).

C. The Modified Categorical Approach

While section 13-1405(A) prohibits sexual conduct with

“any person who is under eighteen years of age,” it is well

established that the generic age of consent for “statutory rape”

purposes is 16. See, e.g., Rodriguez-Guzman, 506 F.3d at 743-

46. The government turns to the modified categorical

approach to defend the District Court’s characterization of

Gonzalez-Aparicio’s prior conviction as “statutory rape” and

therefore a “crime of violence” for sentencing purposes. We

determine that the District Court committed no plain error

with respect to the application of the modified categorical

approach.

Initially, it appears that the modified test is applicable here

because the government is not seeking to supply an otherwise

absent element. See, e.g., Rivera-Cuartas, 605 F.3d at 702;

Estrada-Espinoza, 546 F.3d at 1159. In turn, it was, at the

very least, not obvious at the time of sentencing that the state

statutory provision was indivisible, especially given its

express classification in section 13-1405(B) of sexual conduct

with a minor under 15 as a class 2 felony. See, e.g., EstradaEspinoza, 546 F.3d at 1159-60.

There are certain restrictions on the kinds of documentation

that a court may consider under the modified categorical

approach. See, e.g., Shepard v. United States, 544 U.S. 13, 26

(2005); United States v. Kelly, 422 F.3d 889, 895-96 (9th Cir.

2005). For instance, statements or admissions by the defendant’s counsel at the sentencing hearing are not judicially

noticeable. See, e.g., Rodriguez-Guzman, 506 F.3d at 747 n.9.

Likewise, a sentencing court may not turn to the PSR for a

narrative description of the underlying facts of the prior conviction. See, e.g., United States v. Pimentel-Flores, 339 F.3d

959, 967-69 (9th Cir. 2003) (finding plain error where, inter

UNITED STATES v. GONZALEZ-APARICIO 7509
alia, district court relied solely on factual description recited

in PSR and government failed to submit adequate documentation); United States v. Corona-Sanchez, 291 F.3d 1201, 1212

(9th Cir. 2002) (en banc) (“Instead, we have held that a presentence report reciting the facts of the crime is insufficient

evidence to establish that the defendant pled guilty to the elements of a crime when the statute of conviction is broader

than the generic definition.” (citing United States v. Franklin,

235 F.3d 1165, 1172 (9th Cir. 2000); United States v. Potter,

895 F.2d 1231, 1237-38 (9th Cir. 1990)).

[7] Nevertheless, the PSR prepared in this proceeding did

more than provide a mere factual narrative. It instead evidently quoted from state court documentation by stating that

“[c]ourt records show he pleaded guilty to Count 1 of an

indictment charging that in November 1998 he ‘engaged in

sexual intercourse or oral sexual contact with [victim] a minor

under the age of fifteen years, this refers to the first intercourse[.]’ ” (PSR ¶ 21.) It bears repeating that, if the defense

had raised some sort of objection, the government could then

have presented in the sentencing proceeding the actual documentation from the state court. Under these circumstances,

there was no plain error. See, e.g., Kelly, 422 F.3d at 895-96

(“A presentence report (“PSR”) is insufficient to establish the

elements of the crime if ‘all it does is recite the facts of the

crime as alleged in the charging papers’ without indicating

whether the information came ‘from a source that we have

previously deemed acceptable, such as a signed plea agreement, a transcript of the plea hearing, or a judgment of conviction.’ ” (quoting Corona-Sanchez, 291 F.3d at 1211));

Corona-Sanchez, 291 F.3d at 1212 (“We need not decide in

this case whether information contained in a presentence

report from an identified, acceptable source can constitute

evidence under Taylor’s modified categorical approach”).

7510 UNITED STATES v. GONZALEZ-APARICIO
III.

For the foregoing reasons, Gonzalez-Aparicio fails to satisfy the applicable plain error standard of review with respect

to the District Court’s determination that he was previously

convicted of a “crime of violence,” namely “statutory rape,”

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).4 We further conclude that the District Court did not otherwise abuse its discretion or impose a sentence that was either procedurally

erroneous or substantively unreasonable. See, e.g., Carty, 520

F.3d at 993. Contrary to Gonzalez-Aparicio’s assertions on

appeal, the District Court provided a thorough explanation for

its determination, appropriately responded to the various arguments made by the defense, did not give undue weight to the

Guidelines, and reasonably took into account GonzalezAparicio’s prior record as well as several mitigating factors.

We therefore will affirm the sentence entered by the District Court.

AFFIRMED.

THE MOTION BY APPELLANT FOR CORRECTION OF THE RECORD IS DENIED.

TASHIMA, Circuit Judge, dissenting: 

Today the majority announces a new and startling method

of selecting a standard of review, one in which the panel, at

its sole option, selects which standard of review to apply.

Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established

4We accordingly need not reach the government alternative theory that

the statute of conviction constitutes a “forcible sexual offense[ ]” under

the Guideline commentary. 

UNITED STATES v. GONZALEZ-APARICIO 7511
standard of review, it would be required to reverse and

remand for resentencing.

I.

This is a sentencing case. As in all sentencings, the district

court was first required to calculate the correct advisory

guidelines sentencing range. See Gall v. United States, 552

U.S. 38, 49 (2007); United States v. Carty, 520 F.3d 984, 991

(9th Cir. 2008) (en banc). It did not do so. Defendantappellant Gonzalez-Aparicio (“Gonzalez”) pled guilty to one

count of illegal entry under 8 U.S.C. § 1326(b)(2). The sentencing court applied a 16-point “crime of violence” enhancement, U.S.S.G. § 2L1.2(b)(1)(A)(ii), that raised Gonzalez’s

total offense level from 6 to 22.1 At Criminal History Category III, this raised his corresponding Guidelines range from

2-8 months to 51-63 months. The district court imposed a sentence of 51 months. As the majority acknowledges, the correctness of that sentence turns on the following issue: does the

generic definition of statutory rape contain an age difference

element? See Maj. Op. at 7499.

II.

The majority invokes plain error review to avoid answering

this key question, even though the question is a pure question

of law. If the generic definition includes an age difference element, then Gonzalez’s state conviction cannot constitute statutory rape, because, as the majority concedes, see Maj. Op. at

7497, the Arizona statute under which he was convicted, Ariz.

Rev. Stat. § 13-1405, does not include an age difference element. Rivera-Cuartas v. Holder, 605 F.3d 699, 702 (9th Cir.

2010) ( “ ‘[W]hen the crime of conviction is missing an element of the generic crime altogether,’ the modified categorical approach is inapposite because the court ‘can never find

1The 16-point enhancement was based on an Arizona state conviction

for sexual conduct with a minor under Ariz. Rev. Stat. § 13-1405. 

7512 UNITED STATES v. GONZALEZ-APARICIO
that a jury was actually required to find all the elements of’

the generic crime.”) (quoting Navarro-Lopez v. Gonzalez, 503

F.3d 1063, 1073 (9th Cir. 2007)). Because we must analyze

the statute under the Taylor2 categorical analysis, the underlying facts do not matter. 

The majority’s application of plain error review is contrary

to our well-established rule that a pure question of law, even

if unpreserved, is reviewed de novo absent prejudice to the

opposing party. See United States v. Evans-Martinez, 611

F.3d 635, 642 (9th Cir. 2010); United States v. SaavedraVelazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (holding that

“whether California’s definition of ‘attempt’ is broader than

the common law definition, such that attempted robbery is not

a ‘crime of violence’ ” is a purely legal question to which

plain error review does not apply); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (declining to apply

plain error review to the purely legal question of whether a

conviction constitutes an “aggravated felony” under the categorical approach); United States v. Echavarria-Escobar, 270

F.3d 1265, 1267-68 (9th Cir. 2001) (declining to apply plain

error review where the defendant “argue[d] for the first time

on appeal that the sentence imposed for his Nevada state theft

offense [could not] constitute an aggravated felony for purposes of enhancing his [ ] sentence . . . .”).3

The majority contends that plain error review applies

because Gonzalez’s failure to object caused the government

prejudice by depriving it of the opportunity to submit “further

documentation of the state court proceeding that could clearly

2Taylor v. United States, 495 U.S. 575 (1990). 

3

In United States v. Charles, 581 F.3d 927, 933 (9th Cir. 2009), upon

which the majority relies, the court applied plain error review to the legal

question of whether the defendant’s state conviction was “categorically a

controlled substance offense.” But Charles never considered the “pure

question of law” exception to plain error review, apparently because the

defendant did not raise it. See id. at 932-33. Charles therefore does not

conflict with the above authority. 

UNITED STATES v. GONZALEZ-APARICIO 7513
be considered in any modified categorical analysis.” Maj. Op.

at 7501. But, as the majority itself recognizes, “the modified

categorical approach does not apply at all when the statute of

conviction lacks an element of the generic crime.” Maj. Op.

at 7497. Again, the issue is whether generic statutory rape

contains an age difference element. If the answer is yes, then

Gonzalez’s conviction does not qualify as a matter of law

under the categorical approach, and he must be resentenced

according to the correct advisory range of 2-8 months. “Further documentation of the state court proceeding” could not

affect the analysis. Gonzalez’s failure to object did not prejudice the government. 

Most perplexingly, however, the majority also justifies its

application of plain error review as an exercise of its purported “discretion” to select the appropriate standard of

review. Maj. Op. at 7499. The idea that we have discretion to

choose between standards of review is antithetical to the very

concept of a standard of review. If we can pick whatever standard suits us, free from the direction of binding principles,

then there is no standard at all. Our cases that apply the “pure

question of law” exception to plain error review do not

engage in any such discretionary selection. Rather, the cases

limit themselves to asking whether the relevant issue is purely

legal and whether the opposing party suffers no prejudice. If

the answer to both questions is yes, our cases invariably have

applied de novo review. See Evans-Martinez, 611 F.3d at 642;

Saavedra-Velazquez, 578 F.3d at 1106; Huerta-Guevara, 321

F.3d at 886; Echavarria-Escobar, 270 F.3d at 1267-68. 

Rather than recognizing these cases as binding, the majority comes up with a newly-minted rule under which it grants

itself discretion over which standard of review to apply. It

does this by seizing upon the slender reed of a one-sentence

footnote that contains no analysis of the “pure question of

law” exception to plain error review. See United States v. Burgum, 633 F.3d 810, 812 n.2 (9th Cir. 2011) (“To the extent

we have discretion not to apply plain error review, we decline

7514 UNITED STATES v. GONZALEZ-APARICIO
to exercise that discretion in this instance.”). As is plainly

clear from its language, the footnote does not actually state

that appellate courts have discretion to choose between standards of review. And the footnote certainly does not overrule

our earlier decisions by granting courts discretion to apply

anything other than de novo review where an unpreserved

question is purely legal and there is no prejudice to the opposing party. The majority overrides this clear line of precedent

by simple fiat, “find[ing] that it is not appropriate to exercise

this discretion in light of the specific circumstances of the current appeal.” Maj. Op. at 7499. 

In announcing its newly-minted rule giving itself the discretionary option of which standard of review to apply, the

majority simply ignores our long-established case law that

pure questions of law are an exception to plain error review.

Because our case law so dictates, I would review de novo the

purely legal question on which this appeal turns.

III.

Turning to that question of law, although we have never

squarely decided whether generic statutory rape includes an

age difference element, we have come close. EstradaEspinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en

banc), held that “sexual abuse of a minor” requires an age difference element. Id. at 1152 (“[T]he generic offense of ‘sexual abuse of a minor’ requires four elements: (1) a mens rea

level of knowingly; (2) a sexual act; (3) with a minor between

the ages of 12 and 16; and (4) an age difference of at least

four years between the defendant and the minor.”). The court

relied on sources that defined “statutory rape,” id. at 1153,

because it determined that offenses titled “sexual abuse of a

minor” in state and federal criminal codes “define what

would, in more common parlance, be referred to as statutory

rape.” Id. at 1156. In other words, Estrada-Espinoza’s holding

that “sexual abuse of a minor” contains an age difference element is based on the conclusion that generic statutory rape

UNITED STATES v. GONZALEZ-APARICIO 7515
contains an age difference element.4

 We subsequently emphasized this point by declaring that Estrada-Espinoza “was

intended to define statutory rape laws only,” and that a separate generic definition of “sexual abuse of a minor” applies to

laws that require abuse. United States v. Medina-Villa, 567

F.3d 507, 515 (9th Cir. 2009); see also United States v.

Valencia-Barragan, 608 F.3d 1103, 1107 n.2 (9th Cir. 2010)

(“Although Estrada-Espinoza [purported to] defin[e] ‘sexual

abuse of a minor’ generally, we subsequently clarified that the

Estrada-Espinoza definition ‘encompassed statutory rape

crimes only.’ ”) (citation omitted). 

Although it refuses to decide the issue, the majority suggests that the generic crime of statutory rape might not contain an age difference requirement, Estrada-Espinoza

notwithstanding, because the Sentencing Guidelines enumerate “sexual abuse of a minor” and “statutory rape” separately.

Maj. Op. at 7507; see Medina-Villa, 567 F.3d at 515 (“When

interpreting the Guidelines, we must give meaning to all its

words and render none superfluous.”). The implication is that

because Estrada-Espinoza defines “sexual abuse of a minor”

to mean “statutory rape,” we should define “statutory rape” to

mean something other than “statutory rape” to avoid render4This conclusion about generic statutory rape comports with the prevailing definition of the crime. See United States v. Osborne, 551 F.3d 718,

719-720 (7th Cir. 2009) (“Many criminal laws, of which statutory rape is

the best-known example, rest on a belief that a combination of youth and

age difference prevents an effective consent to sexual conduct.”) (emphasis added); Model Penal Code § 213.3 (2001) (defining “Corruption of

Minors and Seduction” to require that the “actor is at least [four] years

older than the other person”); “Statutory Rape: A Guide to State Laws and

Reporting Requirements,” The Lewin Group, prepared for the Department

of Health and Human Services (Dec. 15, 2004), http://www.lewin.com/

content/publications/3068.pdf (“In 27 states, the legality of engaging in

sexual intercourse with minors is, at least in some circumstances, based on

the difference in age between the two parties.”); Charles A. Phillips, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton

Hall Legis. J. 1, 62 (1997) (“An element present in most states is an age

difference between the parties.”). 

7516 UNITED STATES v. GONZALEZ-APARICIO
ing the term superfluous. That reasoning is backwards. Moreover, Medina-Villa recognizes that the existence of the second

definition of “sexual abuse of a minor” — covering laws that

require abuse — avoids rendering the term “statutory rape”

redundant. See 567 F.3d at 515 (“[I]f we were to define ‘sexual abuse of a minor’ in U.S.S.G. § 2L1.2 as limited to [the

Estrada-Espinoza definition], we would eliminate the need

for the separate and independent example of ‘statutory rape’

as a ‘crime of violence.’ ”) (emphasis added). In other words,

in the context of U.S.S.G. § 2L1.2 — which, in contrast to the

immigration provision that Estrada-Espinoza interprets, enumerates the terms “sexual abuse of a minor” and “statutory

rape” separately — the two generic definitions of “sexual

abuse of a minor” correspond to separate terms. The MedinaVilla definition corresponds to “sexual abuse of a minor” and

the Estrada-Espinoza definition corresponds to “statutory

rape.” There is no overlap.5

The majority also implies that United States v. GomezMendez, 486 F.3d 599 (9th Cir. 2007), which predates

5The government argues briefly that even if § 13-1405 does not constitute statutory rape, it is still a “crime of violence” because it meets the definition of “forcible sex offense,” which the Guidelines commentary lists

as a separate qualifying offense. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2009)

(“ ‘Crime of violence’ means any of the following . . . 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 . . . .”). But this

reading would render the term “statutory rape” superfluous: if statutory

rape crimes are “forcible sex offenses” simply because the minor’s consent is invalid under state law, then why does the commentary list statutory rape separately? Moreover, when the Sentencing Commission added

the parenthetical language defining “forcible sex offenses” to include

crimes involving legally invalid consent, it did so to overrule cases that

had excluded from the generic definition rapes of mentally impaired or

intoxicated persons and rapes accomplished by coercive non-violent

threats (e.g., an employer’s threat “to fire a subordinate”). See Notice of

submission to Congress of amendments to the sentencing guidelines effective November 1, 2008, 73 Fed. Reg. 26924, 26935 (May 9, 2008). The

parenthetical language does not target statutory rape. 

UNITED STATES v. GONZALEZ-APARICIO 7517
Estrada-Espinoza, suggests that generic statutory rape does

not contain an age difference element. See Maj. Op. at

7502-03. But Gomez-Mendez did not address the age difference issue. The case concerned a state law prohibiting anyone

21 or older from having sexual intercourse with anyone under

16. Although the court declared that statutory rape is “ordinarily, contemporarily, and commonly understood to mean the

unlawful sexual intercourse with a minor under the age of

consent,” it clearly did not have to consider whether the

generic definition included an age difference element, because

the state law satisfied that requirement. See Gomez-Mendez,

486 F.3d at 603. In Estrada-Espinoza, on the other hand, the

age difference element was dispositive. 546 F.3d at 1159. 

In sum, under Estrada-Espinoza, § 13-1405 does not meet

the generic definition of statutory rape because it does not

contain an age difference requirement. This case should be

remanded for resentencing under the correct Guidelines range

of 2-8 months.

IV.

Alhough it is unnecessary to reach the issue under my analysis, I note that I also disagree with the majority’s application

of the modified categorical approach. The Arizona statute is

over-inclusive: it defines minors as persons under 18, while

the generic crime defines minors as persons under 16. Compare Ariz. Rev. Stat. § 13-1405, with United States v.

Rodriguez-Guzman, 506 F.3d 738, 745 (9th Cir. 2007)

(“[T]he term ‘minor’ in the context of a statutory rape law

means a person under sixteen years of age.”). The majority

holds that Gonzalez’s conviction qualifies despite the statute’s

overinclusiveness because he pled guilty to a crime involving

a 14 year-old victim. But the only factual support for this conclusion comes from the Presentence Investigation Report

(“PSR”), which reads as follows: “Court records show [Gonzalez] pleaded guilty to Count 1 of an indictment charging

that in November 1998 he ‘engaged in sexual intercourse or

7518 UNITED STATES v. GONZALEZ-APARICIO
oral sexual contact with [victim] a minor under the age of fifteen years . . . .’ ” The government submitted no other documentation of the conviction. 

The majority’s reliance on the PSR, again, contravenes

clear precedent. In United States v. Corona-Sanchez, we held

that a PSR stating that the defendant had pleaded guilty to

facts contained in charging papers did not suffice to establish

the elements of the defendant’s conviction for purposes of the

modified categorical approach. 291 F.3d 1201, 1212 (9th Cir.

2002) (en banc) (“Corona-Sanchez’s presentence report is

insufficient evidence because all it does is recite the facts of

the crimes as alleged in the charging papers. That it also notes

that he ‘P/G as charged’ does not remedy the situation,

because it does not indicate the source of this information.”),

superseded on other grounds by U.S.S.G. § 2L1.2, cmt. n.4

(2002). Similarly, in United States v. Pimentel-Flores, we

held that a district court committed plain error by relying

solely on the PSR to find that the defendant’s conviction constituted a “crime of violence” under the modified categorical

approach. 339 F.3d 959, 968 (9th Cir. 2003).

The majority recognizes that “a presentence report reciting

the facts of the crime is insufficient evidence to establish that

the defendant pled guilty to the elements of the generic definition of a crime . . . .” Maj. Op. at 7510 (quoting CoronaSanchez, 291 F.3d at 1212). But it nonetheless affirms Gonzalez’s sentence because the PSR here, unlike the PSR in

Corona-Sanchez, states that its information comes from

“court records.” I find this distinction perplexing. While our

case law suggests (without holding) that a PSR might support

application of the modified categorical approach if it makes

clear that it draws its information from an “identified, acceptable source,” such as “a signed plea agreement, a transcript of

the plea hearing, or a judgment of conviction,” CoronaSanchez, 291 F.3d at 1212, the cryptic reference to “court

records” in Gonzalez’s PSR obviously does not fit that bill.

One cannot discern the precise source of the information. The

UNITED STATES v. GONZALEZ-APARICIO 7519
district court committed plain error by relying on the PSR

exclusively. Id. (“The idea of the modified categorical

approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically

defined crime . . . .”) (emphasis added); Pimentel-Flores, 339

F.3d at 968 (“We can understand the frustration of district

judges who sentence a defendant on a record to which no

objection was made only to have to later revisit the matter

. . . . Relying solely on the factual description in the PSR,

however, was plain error.”).

V.

For all of the reasons discussed above, I respectfully dissent.

7520 UNITED STATES v. GONZALEZ-APARICIO