Saturday, September 17, 2011

Case o' The Week: Tinker, Taylor, Soldier, Spy -- Tafoya-Montelongo and Sex Crimes as "Crimes of Violence"

If a prior sex state conviction does not qualify as a guideline "crime of violence," an illegal reentry defendant could be looking at less than two years of custody. If the prior does qualify, however, the guideline range trebles and the alien could be looking at over six years.

That's exactly what happened in
Tafoya-Montelongo, a new Ninth Circuit decision that undertakes a modified categorical analysis and holds that a Utah attempted sex offense qualifies as a "crime of violence." United States v. Tafoya-Montelongo, 2011 WL 4060586 (9th Cir. Sept. 14, 2011), decision available here.

A disappointing decision for our skyrocketing number of federal illegal reentry defendants (see
chart of Section 1326 prosecutions as a function of administration, above).

Players: Decision by Sr. DJ Mills, joined by Judges W. Fletcher and N. Smith.

Facts: Tafoya-Montelongo pleaded guilty to illegal reentry after a preliminary PSR put his range at 15-21 months. Id. at *2. The final PSR came back at 63-78 months, after Probation came up with a 16- level specific offense adjustment for a prior Utah conviction for attempted sexual abuse of a child. Id. Tafoya-Montelongo was sentenced (after a variance) to 52 months. Id. at *2.

Issue(s): “Tafoya-Montelongo . . . only challenges the 16-level enhancement, arguing that his conviction for attempted sexual abuse of a minor is not a ‘crime of violence.’” Id. at *2.

Held:Tafoya–Montelongo’s assertion that his conduct was ‘not abuse under the federal generic definition,’ but merely ‘self-gratification,’ is without merit because of the age of the victim. Because he attempted to engage in sexual conduct with a girl under the age of 14, his conduct was per se abusive under one of the generic federal definitions of ‘sexual abuse of a minor.’ Having determined that the conviction satisfies one of the definitions, we need not address whether it also meets the other . . . After considering the state court records, we conclude that Tafoya–Montelongo’s conviction for attempted sexual abuse of a child qualified as a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court committed no error, plain or otherwise, in applying a 16–level enhancement. . . in calculating [the] guideline range.” Id. at *5 (footnote omitted) (citations omitted).

Of Note: The narrow issue before the en banc court in the recent Aguila Montes de Oca (“AMdO”) case was whether California burglaries qualify as “crimes of violence” under the illegal reentry guideline. See AMdO blog entry here. The big-ticket issue, however, was whether the district court are permitted to rummage about and find facts to patch state convictions that were missing elements of generic federal crimes. The (formerly great) Navarro-Lopez rule prohibited that approach.

When the recent Aguila en banc decision eliminated Navarro-Lopez, federal defense folks quickly began worrying about sex priors. Many state sex statutes are missing elements of the generic federal definition; under the old Navarro-Lopez rule those state crimes didn’t count as “crimes of violence.” See generally Castro blog entry here.

(Interestingly, Judge W. Fletcher’s was on both the Tafoya-Montelongo panel and the AMdO en banc court. Prophetically, his only question at the Aguila en banc argument was how eliminating Navarro-Lopez would affect sex crimes).

Tafoya-Montelongo is an aftershock of the Aguila Montes de Oca quake, is laced with Aguila cites, and recites the modified categorical approach described in Aguila to find that this Utah sex-with-a-minor offense qualifies as a crime of violence. While it isn’t clear from this terse opinion whether this Utah sex statute was missing an element of the generic federal offense, or that the case would have been decided differently if Navarro-Lopez still existed, Tafoya-Montelongo and AMdO generally bode ill for our efforts to fight state sex convictions as federal generic crimes of violence.

How to Use: Tafoya-Montelongo teaches the importance of specific PSR objections to dodge plain error review. In the district court Tafoya-Montelongo objected to the PSR’s sixteen level specific adjustment for the sex prior. Id. at *3. The objection, however, wasn’t to whether the prior actually qualified, but to the shifting calculations between the preliminary and final PSRs. Id. This wasn’t specific enough: “Because Tafoya-Montelongo did not argue below that his conviction for the attempted sexual abuse of a minor did not qualify as a crime of violence, we review the issue for plain error.” Id.

For Further Reading: Last year we reported on a dias infaustus - the regrettable Ressam decision reversing a twenty-two year sentence because it was "unreasonable" (i.e., "too short!") See Ressam blog entry here.

Next week the case gets another look en banc – with a panel of CJ Kozinski, and Judges Schroeder, Reinhardt, Graber, McKeown, Wardlaw, Paez, Berzon, Clifton, Bybee, and Murguia. See Ninth Circuit en banc report here.

Graph of illegal reentry prosecutions as a function of Presidential administration from

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


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