Case o' The Week: Taylor-Made Analysis -- Castro and Cal Penal Code Sec. 288(c)(1)

A slow week in the Ninth lets us reach back to discuss the strong decision by Judge Goodwin in United States v. Castro, __ F.3d __, 2010 WL 1135786 (9th Cir. Mar. 26, 2010), decision available here.

(Note: decision by sitting Judge Goodwin, not by (we sincerely hope) future Judge Goodwin (Liu), above (getting some pointers from Justice Breyer)).

Players: Decision by Judge Goodwin, joined by Judges Canby and Fisher.

Facts: Castro was convicted of attempted illegal reentry and was hit with the +16 offense level increase for having a prior “crime of violence” conviction before removal. Id. at *1. The prior was for California Penal Code § 288(c)(1), “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. He was sentenced to 46 months. Id.

Issue(s): “Castro argues that a conviction under section 288(c)(1) does not constitute a ‘crime of violence’ warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A).” Id.

Held: “We hold that a conviction under California Penal Code section 288(c)(1) categorically constitutes neither ‘sexual abuse of a minor’ nor ‘statutory rape’ and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro's sentence and remand for resentencing.”Id. at *1.

Of Note: On March 25 San Diego AFPD Steve Hubachek did an masterful job defending the important Aguila-Montes de Oca decision in a Ninth Circuit en banc argument. At issue was far more than the status of California burglaries in illegal reentry sentencing: the Court is clearly looking at its own Navarro-Lopez rule barring the use of state priors that are missing an element of the “generic” federal definition of a crime. See blog describing case here.

How does Aguila-Montes de Oca relate to Judge Goodwin’s Castro decision? At the en banc argument Judge W. Fletcher’s only questions pressed Hubachek on the impact of the Navarro-Lopez rule on the line of California sex-crime decisions. The en banc argument made it clear that the Ninth is in the midst of a fight over its Taylor approach, the most important sentencing issue since Booker. Hopefully the Estrada-Espinoza line of sex-crime cases (including Castro) will survive whatever the Court decides in Aguila-Montes de Oca.

How to Use: Castro is the latest in a line of admirable Ninth Circuit decisions undertaking an intellectually-honest categorical analysis in an admittedly difficult context: sex crimes involving minors. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Judge Goodwin’s opinion is a good example of the “first step” of the Taylor analysis, carefully comparing the California statute to both the generic offense of “sexual abuse of a minor” and to “statutory rape.” Castro, 2010 WL 11135786, *3. It is a good, short, clean and well-written case to read and cite as a primer on how to undertake this “first step” of the Taylor analysis: the categorical approach. (Though note that the Castro opinion does not involve the Navarro-Lopez “missing element” question at issue in Aguila-Montes de Oca).

For Further Reading: Interestingly, during the Aguila-Montes de Oca en banc argument even a very strong panel of judges were occasionally as confused as us mere mortals as they wrestled with this complicated area of law. One example was some judges' worry that Aguila-Montes de Oca would “immunize” California burglaries from use in any federal sentencing statute.

Sadly (for us) a Taylor analysis for a state crime as to one federal guideline or statute does not necessarily control the result for a different federal guideline or statute. The illegal reentry guideline, for example, is a different beast than the Career Offender guideline because the latter has a “residual clause” – hence a conviction that isn’t a “crime of violence” for illegal reentry may be for Career Offender (or other federal offenses). Beware of that unfortunate reality when advising clients about sentencing exposure – a good decision like Castro may not travel well. For a recap of the Ninth’s struggle with the categorical approach, hit the link here.


Image of Justice Breyer and Professor Liu from http://berkeley.edu/news/berkeleyan/2009/04/16_breyer.shtml

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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