US v. Lopez-Montanez

No. 04-50260 (8-26-05). The 9th considers whether a prior felony conviction under California's sexual battery statute, Cal. penal Code 243.4(a) constitutes a "crime of violence" under the guideline's 2L1.2 and its commentary (requiring use or attempted use of physical force and includes such offenses as forcible sex offenses) . The 9th holds it is categorically NOT. The statute is overinclusive. It includes touching conduct that does not require use of force and although there is a unlawful restraint element too, it need not be physical. The 9th explains that physical contact with an intimate body part needs to have force to make it a categorical crime of violence under the guideline's definition and Rule 16(a). The touching could be ephemeral, so long as it is offensive. This was the 9th's holding in Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004), involving a similar Oregon statute. "Unlawful restraint" can be exercised through psychological pressure or authority; it need not involve threat or physical force. The 9th then uses a modified categorical approach, and finds that there is nothing in the plea or judgment to support force. The 9th distinguishes its precedent involving sex batteries or contact with minors, because force is presumed with a minor. The recent decision in Lisbey v. Gonzales, 04-70557, 2005 WL 2000975 (9th Cir 2005) held sexual battery was a crime of violence under 18 USC 16(b) and therefore was an agg felony under 8 USC 1101(a)(43)(F). That case defines a crime of violence as an agg felony for immigration purposes more broadly than under the guidelines (rule 16(b) has a "risk" factor).