United States v. Hector Ceballos-Castillo

578 F. App'x 661

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2014
• Docket: 13-50407
• Status: Unpublished

Opinion

MEMORANDUM ***

Over Ceballos-Castillo’s objection, the district court enhanced by sixteen levels Ceballos-Castillo’s sentence for attempted reentry after removal. The district court applied the enhancement because it concluded that Ceballos-Castillo’s prior conviction under Oregon’s third degree rape statute, Or.Rev.Stat. § 163.355, was a categorical match for the generic federal definition of statutory rape and, therefore, a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A).

While this appeal was pending, this court clarified that the generic federal definition of “statutory rape” includes as an element a four-year age difference between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th Cir.2013), as amended United States v. Gomez, 757 F.3d 885, 2014 WL 1623725 (9th Cir. April 24, 2014). Because Oregon’s statutory rape law does not include this element, it is broader than the federal definition. Therefore, we vacate Ceballos-Castillo’s sentence and remand for resen-tencing.

Vacated and Remanded.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.