USA V. SILVIO CONTRERAS-MARTINEZ, No. 13-50270 (9th Cir. 2014)
Annotate this Case
The court issued a subsequent related opinion or order on September 11, 2014.
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 10 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-50270 D.C. No. 3:12-cr-04867-CAB-1 v. MEMORANDUM* SILVIO ANTONIO CONTRERASMARTINEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding Submitted June 6, 2014** Pasadena, California Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward M. Chen, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. Over Contreras-Martinez s objection, the district court enhanced by sixteen levels his sentence for attempted reentry after removal. The district court applied the enhancement because it concluded that Contreras-Martinez s prior conviction under Oregon s third degree rape statute, Or. Rev. Stat. § 163.355, was a categorical match for the generic federal definition of statutory rape and, therefore, a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A). While this appeal was pending, we clarified that the generic federal definition of statutory rape includes as an element a four-year age difference between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th Cir. 2013), as amended United States v. Gomez, -- F.3d --, 2014 WL 1623725 (9th Cir. Apr. 24, 2014). Because Oregon s statutory rape law does not include this element, it is broader than the federal definition. The government has not shown that the use of the 16-level enhancement was harmless error. Although the district court gave Contreras-Martinez a sentence well below the sentencing guideline calculated using the 16-level enhancement, and Contreras-Martinez has been released from custody and deported, the government has not shown that on remand the district court could not modify the period of supervised release or otherwise modify Contreras-Martinez s sentence. 2 Therefore, we vacate Contreras -Martinez s sentence and remand for resentencing. Vacated and Remanded. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
