United States v. Rocha-Alvarado, No. 15-10517 (9th Cir. 2016)
Annotate this CaseDefendant pled guilty to illegal reentry after deportation in violation of 8 U.S.C. 1326. The district court applied a sixteen-level sentencing enhancement, concluding that Defendant’s prior conviction for attempted sexual abuse in the first degree in violation of Or. Rev. Stat. 163.427 constituted a “crime of violence” under the Sentencing Guidelines. The Ninth Circuit affirmed the district court’s judgment of conviction and sentencing, holding that a conviction under any one of section 163.427(1)(a)’s three subdivisions necessarily entails a conviction of the elements of the generic federal definition of a “crime of violence.”
Court Description: Criminal Law. The panel affirmed the district court’s application of a sixteen-level sentence enhancement to the defendant’s illegal- reentry sentence on the ground that his prior conviction for attempted sexual abuse in the first degree under Oregon Revised Statutes § 163.427 qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because, as the parties agreed, § 163.427 is a divisible statute, the panel applied the modified categorical approach to determine which of two different crimes defined by §§ 163.427(1)(a) and 163.427(1)(b) was the defendant’s crime of conviction. And because, as the parties agreed, the defendant’s conviction patently falls under subsection (1)(a), the panel proceeded to consider whether his crime of conviction under that subsection is a categorical match to the federal generic offense of “crime of violence.” The panel held that because a conviction pursuant to any of the three further subdivisions of (1)(a) falls under the generic federal definition of a crime of violence, either as “sexual abuse of a minor” or a “forcible sex offense,” the defendant was necessarily convicted of the same elements as the generic federal definition. The panel explained that it is irrelevant that the sexual conduct that led to the defendant’s conviction occurred “outside of the clothes.” UNITED STATES V. ROCHA-ALVARADO 3
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