United States v. Cabrera-Gutierrez, No. 12-30233 (Tashima with Collins, DJ (Ariz.); partial dissent from Callahan) ---

 

In this appeal, the defendant (who had been convicted of failing to register as a sex offender) lost his challenge to his conviction, but won a couple of important sentencing challenges.  After the opinion in United States v. George, 625 F.3d 1124 (9th Cir. 2010), was vacated, 672 F.3d 1126 (9th Cir. 2012), the Ninth Circuit needed another published opinion that rejected a Commerce-Clause challenge to the Sex Offender Registration and Notification Act (SORNA).  This case allowed the court to issue such an opinion.  Congress has broad power to regulate the channels of interstate commerce, and SORNA is a valid regulation of persons who move in interstate commerce (such as sex offenders).  Moreover, here the defendant admitted in his guilty plea that he had moved in interstate commerce (he could also have been charged with illegal reentry). 

Oregon's second-degree sexual abuse statute is overbroad as compared to the federal aggravated sexual abuse (18 U.S.C. § 2241) and sexual abuse (18 U.S.C. § 2242) statutes, because the Oregon statute makes it a crime to engage in a sexual act with people who do not actually consent, while the federal sexual abuse statute requires that the victim be either mentally or physically incapable of consenting.  Moreover, Oregon's age of consent is 18, while the federal age of consent is 16.  Thus the Oregon statute is overbroad, and is not divisible such that the modified categorical approach would apply to it under Descamps v. United States, 133 S. Ct. 2276 (2013).  The district court thus erred when it sentenced the defendant as a Tier III, rather than a Tier I, sex offender.  See U.S.S.G. § 2A3.5(a).

Finally, the Ninth Circuit remanded the case to allow the district court to award, if appropriate, a 3-level downward adjustment for acceptance of responsibility, which the government had withheld because the defendant acted to preserve his right to appeal.  See U.S.S.G. § 3E1.1 cmt. 6 (2013).

Congratulations to Yakima AFPD Rebecca Pennell for the sentencing victory.

The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/17/12-30233.pdf