United States v. Caceres-Olla, No. 12-10132 (12-23-13) (Berzon with Fernandez and Paez) (Note: This is an Az FPD case).

In a 1326 sentencing, the 9th looks at whether a prior felony conviction for lewd and lascivious batter (Florida) qualifies as a COV for Guideline purposes. The 9th holds it does not. The opinion scrutinizes the interplay between forcible sex offenses, and those that require no force (i.e. statutory rape). Because the state statute focuses on the age (12 to 16) of the victim, without being any force, it does not have the requisite force element. The 9th accords with the 4th Circuit's holding regarding a Tennessee statute. In regards to the "statutory rape" alternative under the Guidelines, the generic offense has a four year age difference. Here, the state statute does not have the generic age difference. Under Descamps, a categorical approach is employed. Because the age element is missing from the statute, the inquiry ends; there is no modified categorical approach. The gov't admits that all records were available at the time of sentencing, and therefore the case is remanded for sentencing on the record as is.

Congrats to Edie Cunningham, AFPD, Arizona (Tucson) for the win.