Saturday, April 03, 2010

Case o' The Week: Taylor-Made Analysis -- Castro and Cal Penal Code Sec. 288(c)(1)

A slow week in the Ninth lets us reach back to discuss the strong decision by Judge Goodwin in United States v. Castro, __ F.3d __, 2010 WL 1135786 (9th Cir. Mar. 26, 2010), decision available here.

(Note: decision by sitting Judge Goodwin, not by (we sincerely hope) future Judge Goodwin (Liu), above (getting some pointers from Justice Breyer)).

Decision by Judge Goodwin, joined by Judges Canby and Fisher.

Facts: Castro was convicted of attempted illegal reentry and was hit with the +16 offense level increase for having a prior “crime of violence” conviction before removal. Id. at *1. The prior was for California Penal Code § 288(c)(1), “which criminalizes lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child.” Id. He was sentenced to 46 months. Id.

Issue(s): “Castro argues that a conviction under section 288(c)(1) does not constitute a ‘crime of violence’ warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A).” Id.

Held: “We hold that a conviction under California Penal Code section 288(c)(1) categorically constitutes neither ‘sexual abuse of a minor’ nor ‘statutory rape’ and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro's sentence and remand for resentencing.”Id. at *1.

Of Note: On March 25 San Diego AFPD Steve Hubachek did an masterful job defending the important Aguila-Montes de Oca decision in a Ninth Circuit en banc argument. At issue was far more than the status of California burglaries in illegal reentry sentencing: the Court is clearly looking at its own Navarro-Lopez rule barring the use of state priors that are missing an element of the “generic” federal definition of a crime. See blog describing case here.

How does Aguila-Montes de Oca relate to Judge Goodwin’s Castro decision? At the en banc argument Judge W. Fletcher’s only questions pressed Hubachek on the impact of the Navarro-Lopez rule on the line of California sex-crime decisions. The en banc argument made it clear that the Ninth is in the midst of a fight over its Taylor approach, the most important sentencing issue since Booker. Hopefully the Estrada-Espinoza line of sex-crime cases (including Castro) will survive whatever the Court decides in Aguila-Montes de Oca.

How to Use: Castro is the latest in a line of admirable Ninth Circuit decisions undertaking an intellectually-honest categorical analysis in an admittedly difficult context: sex crimes involving minors. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Judge Goodwin’s opinion is a good example of the “first step” of the Taylor analysis, carefully comparing the California statute to both the generic offense of “sexual abuse of a minor” and to “statutory rape.” Castro, 2010 WL 11135786, *3. It is a good, short, clean and well-written case to read and cite as a primer on how to undertake this “first step” of the Taylor analysis: the categorical approach. (Though note that the Castro opinion does not involve the Navarro-Lopez “missing element” question at issue in Aguila-Montes de Oca).

For Further Reading: Interestingly, during the Aguila-Montes de Oca en banc argument even a very strong panel of judges were occasionally as confused as us mere mortals as they wrestled with this complicated area of law. One example was some judges' worry that Aguila-Montes de Oca would “immunize” California burglaries from use in any federal sentencing statute.

Sadly (for us) a Taylor analysis for a state crime as to one federal guideline or statute does not necessarily control the result for a different federal guideline or statute. The illegal reentry guideline, for example, is a different beast than the Career Offender guideline because the latter has a “residual clause” – hence a conviction that isn’t a “crime of violence” for illegal reentry may be for Career Offender (or other federal offenses). Beware of that unfortunate reality when advising clients about sentencing exposure – a good decision like Castro may not travel well. For a recap of the Ninth’s struggle with the categorical approach, hit the link here.

Image of Justice Breyer and Professor Liu from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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