United States v. Sandoval-Orellana, No. 12-50095 (9th Cir. May 9, 2013) (Beistline, D.J., with Thomas and Hurwitz, JJ.) 

The Ninth Circuit affirmed a guilty-plea conviction and sentence for illegal reentry following deportation. The court held that the defendant's prior conviction under Cal. Penal Code § 289(a)(1) for sexual penetration by foreign object was an aggravated felony, such that the removal order against the defendant was valid. The court also held, on plain-error review, that the defendant's sentence of 57 months, at the lower end of the Guidelines range, was procedurally reasonable.

The defendant was apprehended when he presented an apparently valid green card at the San Ysidro, California, port of entry, and it was discovered that he had previously been removed from the United States. That removal order was entered in the face of the defendant's conviction for sexual penetration by foreign object under Cal. Penal Code § 289(a)(1). As permitted by 8 U.S.C. § 1326(d), the defendant moved to dismiss the indictment on the ground that the deportation order was invalid because § 289(a)(1) doesn't define an aggravated felony. The district court disagreed, and the Ninth Circuit affirmed.

The Ninth Circuit held that under the Taylor categorical approach, CPC § 289(a)(1) defines an aggravated felony. The court distinguished Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006), which involved California's statutory-rape provision. The conduct covered by the statutory-rape provision encompasses some consensual conduct, and therefore doesn't present a substantial risk that force will be used in the commission of the offense. The same, categorically, was not true for sexual penetration by foreign object, despite the fact that some fanciful formulations of fact patterns that fit under CPC § 289(a)(1) might not involve forcible conduct.

On plain-error review, the court also rejected a challenge to the district judge's explanation of the 57-month sentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/09/12-50095.pdf