US v. Rodriguez_Guzman, No. 06-10585 (10-22-07). The 9th (B. Fletcher joined by Hawkins) hold that although statutory rape is a per se crime of violence under the sentencing guidelines, the California statute, 261.5(c), is overly broad because it puts the age of consent at 18. The "common and accepted" definition of the vast majority of states and the model penal code set the age of consent at 16. Siler dissents from this, arguing that statutory rape is defined as sex with a minor, and it is up to the states to set the age. Siler points out that the minority of states that have a different age than 16 include some of the most populous, such as California, Texas, New York, Florida, and Illinois.
Congratulations to AFPD Michael Powell of the D. Nev. (Reno) for the win.
US v. Perez-Perez, No. 06-30341 (10-22-07). How to justify a sentence? Here, the sentencing court articulated reasons for a sentence within the guidelines. It did not explicitly discuss, or articulate the reasons, for not considering the 3553 factors to impose a lower sentence. The 9th holds that the sentencing court need only to state the reasons for a sentence so imposed, citing Rita v. U.S., 127 S.Ct 2456 (2007) and U.S. v. Plouffe, 445 F.3d 1126 (9th Cir. 2006). It need not, at least here, specifically discuss the rejection of the 3553 factors so long as it considered them. The 9th found that the district court "apparently" considered the mitigating reasons presented by defendant in its stating of the reasons for the guidelines sentence.