United States v. Diaz-Benitez

567 F. App'x 515

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2014
• Docket: 13-10028
• Status: Unpublished

Opinion

MEMORANDUM *

Defendant-Appellant Jose Diaz-Benitez appeals his 46-month sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Diaz-Benitez challenges the district court’s application of a 16-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A). Because Diaz-Benitez’s argument on appeal materially differs from his argument at sentencing, we review for plain error. See United States v. De La Fuente, 353 F.3d 766, 769 & n. 1 (9th Cir.2003); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Diaz-Benitez contends that his prior crime of conviction—third-degree child molestation in Washington—is not categorically a “crime of violence” for purposes of the Sentencing Guidelines, and that the district court violated Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), by using it to enhance his sentence. See Wash. Rev.Code § 9A.44.089; U.S.S.G. § 2L1.2(b)(1)(A).

The Sentencing Guidelines define a “crime of violence” as a “forcible sex offense[] (including where consent to the conduct is not given or is not legally valid, such as where consent to' the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor ... or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Third-degree child molestation in Washington is not a “forcible sex offense[ ]” because it does not require lack of consent or compulsion, physical or otherwise. See United States v. Caceres-Olla, 738 F.3d 1051, 1054-57 (9th Cir.2013); see also Wash. Rev.Code § 9A.44.089. Nor does it qualify as a “crime of violence” under any other definition provided by the Sentencing Guidelines. See United States v. Medina-Villa, 567 F.3d 507, 514-16 (9th Cir.2009) (statutory rape); see also United States v. Gomez, 732 F.3d 971, 989 (9th Cir.2013) (sexual abuse of a minor); United States v. Espinoza-Morales, 621 F.3d 1141, 1145 & n. 4 (9th Cir.2010) (any other offense that has as an element the use, attempted use, or threatened use of physical force against the person of another). 1

The district court’s conclusion that Diaz-Benitez’s predicate crime of conviction qualified as a “crime of violence” may not have been plain error at the time of the district court’s decision. But whether a particular error is “plain,” the United States Supreme Court has told us, is judged not on the law at the time of trial or sentencing, but on the law at the time of appellate review. See Henderson v. Unit ed States, — U.S. -, 133 S.Ct. 1121, 1127, 185 L.Ed.2d 85 (2013). Under our law now, third-degree child molestation in Washington is not categorically a “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A). See Caceres-Olla, 738 F.3d at 1054-57. Because United States v. Caceres-Olla’s reasoning is persuasive on this point, we must hold that the district court’s conclusion to the contrary was error. And because application of the 16-level enhancement “may have led to a sentence that was ... longer than necessary,” see United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir.2013), the district court’s error was plain. See United States v. Castillo-Marin, 684 F.3d 914, 918 (9th Cir.2012); see also Olano, 507 U.S. at 734, 113 S.Ct. 1770. The district court on remand should sentence Diaz-Benitez without the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

VACATED AND REMANDED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . Because Washington’s third-degree child molestation statute is indivisible, the modified categorical approach is inapplicable, and the underlying facts of Diaz-Benitez’s prior conviction are irrelevant. See Descamps v. United States,-U.S.-, 133 S.Ct. 2276, 2281-83, 186 L.Ed.2d 438 (2013); see also Wash. Rev.Code § 9A.44.089.