Monday, November 12, 2012

Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens rea of “knowingly” in the Ninth Circuit.

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of “knowingly” in the Ninth Circuit.

United States v. Raul Zamorano-Ponce, 2012 WL 5395159 (9th Cir. Nov. 6, 2012), decision available here.

Players: Decision by Judge Graber, joined by Judges Alarcón and Berzon.

Facts: Zamora-Ponce pleaded guilty to illegal reentry. Id. at *1. In 2003, he pleaded guilty to “rape of a child in the third degree,” in violation of Revised Code of Wash. § 9A.44.079. Id. He was removed after his sentence, reentered, and was caught. Id. He pleaded guilty to illegal reentry pursuant to a written plea agreement. Id. Over defense objection, the district court treated the rape prior as a + 16 offense level, categorical “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Issue(s): “The question before us is whether a prior conviction for ‘rape of a child in the third degree,’ in violation of [Washington state law], qualifies as a ‘crime of violence’ for the purpose of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id.

Held: “Reviewing de novo, United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we answer ‘yes’ and, therefore, affirm the sentence.” Id.

Of Note: This is short, but unfortunately potent, opinion. In Zamora-Ponce, Judge Graber distinguishes and thereby limits the Ninth’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). You’ll recall that in the terrific (unanimous!) Estrada-Espinoza opinion, Judge Thomas logically looked towards federal statutes for a definition of the “generic” crime of statutory rape. See blog here. The definition that came out of Estrada-Espinoza required a mens rea of “knowingly” for “generic” statutory rape. 546 F.3d at 1152. 

Not so here, explains Judge Graber. Estrada-Espinoza does not control this appeal, because Estrada-Espinoza discussed stat rape in the context of an agg felony in immigration law. By contrast, at issue in Zamora-Ponce was “crime of violence” in the context of the illegal reentry guideline. 2012 WL 5395159, *3.

Why does that make a difference to the generic federal definition of statutory rape? This is conspicuously not explained, in Zamora-Ponce’s lonely paragraph distinguishing Estrada-Espinoza. Id. 

So what is the Taylor generic definition of statutory rape in the Ninth? Turns out that it depends on whether an immigration agg felony is at issue, or a guideline “crime of violence” is under attack. Two generic definitions for one crime, two different mental states required for one generic offense, two conflicting lines of law, all within one Circuit – an interestingly chaotic state of affairs.

How to Use: The Ninth has also toyed with a four-year age-difference requirement for the definition of statutory rape. See United States v. Gonzalez-Aparcio, 663 F.3d 410, 431 (9th Cir. 2011). Is that age difference part of the generic stat rape definition? Still an unresolved question after Zamora-Ponce. 2012 WL 5395159, *2. The Washington state statute at issue here required the four-year age difference, so that question wasn’t reached by this panel. This means that the age-difference component of the federal definition is still fair game for the defense challenging “crime of violence” guideline enhancements in illegal reentry sentencing.  
Steven Hubachek
For Further Reading: Sad to report that our friend and colleague Steve Hubachek is leaving the San Diego Federal Defender’s office to go into private practice.

 “Huba” has been in the thick of dozens interesting and novel defense challenge over past couple of decades – from Apprendi and the drug statutes (Buckland), to grand jury instructions (Navarro-Vargas), to the timing of Giglio disclosures (Ruiz), to the formidable Aguila-Montes de Oca litigation now destined for the Supremes. 

Passionate, aggressive, wicked smart and enormously creative, Hubachek has been a great friend of the defense bar and an unflagging champion of our indigent clients. We’ll miss his loud Hawaiian shirts, loud punk music, and loud opinions, and wish him much luck in his new gig. 

For a small taste of the big mischief Steve has wrought, visit the collection of blog postings here.

Image of Steve Hubachek from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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