United States v. Silvio Contreras-Martinez

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2014
• Docket: 13-50270
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 10 2014

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50270

Plaintiff - Appellee, D.C. No. 3:12-cr-04867-CAB-1

v. MEMORANDUM* SILVIO ANTONIO CONTRERAS- MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted June 6, 2014** Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward M. Chen, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. Over Contreras-Martinez’s objection, the district court enhanced by sixteen

levels his sentence for attempted reentry after removal. The district court applied

the enhancement because it concluded that Contreras-Martinez’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)(1)(A).

While this appeal was pending, we 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, -- F.3d --, 2014 WL 1623725 (9th

Cir. Apr. 24, 2014). Because Oregon’s statutory rape law does not include this

element, it is broader than the federal definition.

The government has not shown that the use of the 16-level enhancement was

harmless error. Although the district court gave Contreras-Martinez a sentence

well below the sentencing guideline calculated using the 16-level enhancement,

and Contreras-Martinez has been released from custody and deported, the

government has not shown that on remand the district court could not modify the

period of supervised release or otherwise modify Contreras-Martinez’s sentence.

2 Therefore, we vacate Contreras -Martinez’s sentence and remand for

resentencing.

Vacated and Remanded.