United States v. Fermin Tovar-Jimenez

Opinion

FILED +Corrected June 11, 2014 MAY 30 2014

MOLLY C. DWYER, CLERK NOT FOR PUBLICATION U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10321

Plaintiff - Appellee, D.C. No. 4:12-cr-01941-JGZ- LAB-1 v.

FERMIN TOVAR-JIMENEZ, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona +John C. Coughenour, Senior District Judge, from Western Washington, Presiding

Argued and Submitted May 14, 2014 San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROBART, District Judge.**

On appeal, Fermin Tovar-Jimenez challenges the 41-month sentence

imposed by the district court following his guilty plea to illegal reentry after

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James L. Robart, District Judge for the U.S. District Court for the Western District of Washington, sitting by designation. deportation in violation of 8 U.S.C. § 1326. Because the parties are familiar with

the facts and procedural history of this case, we repeat only those facts necessary to

resolve the issues raised on appeal. We vacate and remand for resentencing.

The district court erred in applying a 16-level sentencing enhancement after

concluding that Tovar-Jimenez’s prior conviction for rape of a child in the third

degree in violation of Revised Code of Washington § 9A.44.079 qualified as

statutory rape, and was thus a crime of violence under U.S. Sentencing Guidelines

Manual § 2L1.2(b)(1)(A)(ii).

Section 9A.44.079 includes as an element that the defendant had “sexual

intercourse” with the victim. Wash. Rev. Code § 9A.44.079. Sexual intercourse is

defined disjunctively in three ways under Washington law. Wash. Rev. Code §

9A.44.010(1). Only two of the three alternatives require penetration, whereas one

requires only “sexual contact . . . involving the sex organs of one person and the

mouth or anus of another . . . .” Id. The generic definition of sexual intercourse,

however, does not encompass oral sexual contact. See United States v. Gomez, —

F.3d —, No. 11-30262, 2014 WL 1623725, at *17 n.33 (9th Cir. Apr. 24, 2014).

Therefore, § 9A.44.079 sweeps more broadly than the generic crime of statutory

2 rape.1 The district court applied the 16-level sentencing enhancement without

considering whether Tovar-Jimenez was convicted of the elements of generic

statutory rape, including the generic definition of sexual intercourse. Therefore,

we vacate the sentence and remand to the district court to reapply the framework

from Taylor v. United States, 495 U.S. 575 (1990), to determine whether Tovar-

Jimenez was convicted of the elements of generic statutory rape. See also

Descamps v. United States, 133 S. Ct. 2276 (2013).

Additionally, the government concedes that Tovar-Jimenez’s judgment of

conviction should be amended to reflect a sentencing enhancement pursuant to 8

U.S.C. § 1326(b)(1), rather than § 1326(b)(2), because Tovar-Jimenez did not

admit to having a prior conviction that qualified as an aggravated felony.

Finally, because we remand for resentencing, we need not address the

remainder of Tovar-Jimenez’s arguments.

VACATED AND REMANDED.

1 Although we held in United States v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. 2012), that a conviction under § 9A.44.079 qualifies categorically as generic statutory rape, we did not consider whether sexual intercourse as defined in § 9A.44.010(1) was a categorical match for the generic definition of sexual intercourse.