US v. Gomez, No. 11-30262 (4-24-14) (Paez with Fisher and Gould).
Revising an opinion involving an issue of first impression, the 9th finds that a four year age difference is an element in generic statutory rape. The 9th withdraws a prior opinion (10-7-13) in this 1326 conviction and sentencing appeal. The 9th finds error in the underlying removal proceeding because the defendant was denied an opportunity to appeal the order. His waiver of the appeal was not knowing. The immigration court failed to assess whether the defendant actually knew his rights, and what would happen. However, the error was harmless because the prior offense was an aggravated felony and would not have afforded him relief. With respect to sentencing, the panel held that Ariz. Rev. Stat. § 13-1405 was not a crime of violence (COV) under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Arizona statute makes it an offense to have sex with a person "under fifteen" but did not exempt those within four years in age. This means that the statute is not a categorical COV because it is missing that element. The 9th then discusses generic statutory rape (noted above), with an extensive survey of states, federal offenses and the Model Penal Code. The four year span is required. The case is vacated and remanded for resentencing.
Congrats to Rebecca Pennell of the Federal Defenders of the Eastern District of Washington (Yakima).