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United States v. Valencia-Barragan

April 6, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE VALENCIA-BARRAGAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. Thomas J. Whelan, District Judge, Presiding. D.C. No. No. 3:08-CR-01188-W-1.

The opinion of the court was delivered by: Goodwin, Senior Circuit Judge

FOR PUBLICATION

Argued and Submitted January 13, 2010 -- Pasadena, California.

Before: Alfred T. Goodwin, William C. Canby, Jr. and Raymond C. Fisher, Circuit Judges.

OPINION

Jose Valencia-Barragan appeals his forty-one month sentence for attempted re-entry into the United States after removal in violation of 8 U.S.C. § 1326. That sentence includes a sixteen-level increase in offense level for a prior conviction under Revised Code of Washington section 9A.44.076(1) ("section 9A.44.076(1)"), which criminalizes the rape of a child who is twelve or thirteen years old. Wash. Rev. Code § 9A.44.076(1). Valencia-Barragan argues, first, that a conviction under section 9A.44.076(1) does not constitute a "crime of violence" warranting a sixteen-level increase under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(b)(1)(A). He also argues that the district court erred procedurally in failing to explain and apply the sentencing factors under 18 U.S.C. § 3553(a) and imposed a substantively unreasonable sentence in violation of United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009).

We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We hold that a conviction under section 9A.44.076(1) categorically constitutes "sexual abuse of a minor" and is therefore a crime of violence warranting a sixteen-level increase. We also hold that the district court did not impose a procedurally or substantively unreasonable sentence. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 18, 2008, a United States Border Patrol agent, responding to information from a seismic intrusion device, found Valencia-Barragan hiding in brush north of the United States-Mexico border. Valencia-Barragan, a citizen of Mexico, had previously been deported after pleading guilty to second-degree rape of a child under fourteen, a felony under Washington law. See Wash. Rev. Code § 9A.44.076(2). According to his presentence report, Valencia-Barragan expressed no remorse and stated that he believed he had done nothing wrong. He also allegedly kissed, touched, and exposed himself to a second child, an eleven-year-old girl, although he was not charged for that incident. He was sentenced to sixty-eight months in prison and was deported in 1999 following his release.

On June 30, 2008, Valencia-Barragan pleaded guilty to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. At sentencing, the district court ruled that Valencia-Barragan's prior conviction under section 9A.44.076(1) qualified as "statutory rape" and was therefore a crime of violence for purposes of sentencing enhancement. The court found a base offense level of eight, U.S.S.G. § 2L1.2(a); a sixteen-level increase based on a prior conviction for a crime of violence, id. § 2L1.2(b)(1)(A)(ii); and a three-level decrease for acceptance of responsibility, id. § 3E1.1. Noting that the applicable Guidelines range was forty-one to fifty-one months, the court concluded, "Mindful of the fact the statutory maximum for this offense is up to 20 years in custody, and reviewing the criteria set forth in [18 U.S.C. § 3553(a)], I find that the low end of the adjusted Guideline range would be a sufficient sentence but not greater than necessary," and imposed a sentence of forty-one months. Valencia-Barragan timely appealed.

DISCUSSION

A. Sixteen-Level Increase Under U.S.S.G. § 2L1.2(b)(1)(A)

[1] Valencia-Barragan argues, first, that his prior conviction under section 9A.44.076(1) constitutes neither "statutory rape" nor "sexual abuse of a minor" and therefore is not a crime of violence warranting a sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A). For a violation of 8 U.S.C. § 1326, the Sentencing Guidelines provide for a base offense level of eight with an increase of sixteen levels "[i]f the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). "Crime of violence" includes, inter alia, "sexual abuse of a minor" and "statutory rape." Id. at cmt. n.1(B)(iii). On de novo review, United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir. 2009), we conclude that a conviction under section 9A.44.076(1) categorically constitutes sexual abuse of a minor, and that the sixteen-level increase therefore applies.

[2] Section 9A.44.076(1) provides that "[a] person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." Wash. Rev. Code § 9A.44.076(1). To determine whether a prior conviction under section 9A.44.076(1) constitutes either "sexual abuse of a minor" or "statutory rape" for purposes of sentencing enhancement, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02 (1990). "Under the categorical approach, we 'compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.' " Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008) (quoting Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007)). "We ...


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