Argued July 8, 2013.
Submitted Sept. 18, 2013.
M. Edith Cunningham (argued) and Christopher R. Kilburn, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender, Tucson, AZ, for Defendant-Appellant.
Erica L. Seger (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Christian M. Cabanillas, Appellate Chief, Tucson, AZ, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:11-cr-02358-DCB-DTF-1.
Before: FERDINAND F. FERNANDEZ, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
Opinion by Judge BERZON; Concurrence by Judge FERNANDEZ.
OPINION BERZON, Circuit Judge:
Israel Arnoldo Caceres-Olla pleaded guilty, under 8 U.S.C. § 1326, to unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline (" Guideline" ) 2L1.2. This case presents the question whether a prior felony conviction under Florida Statutes section 800.04(4)(a) for lewd or lascivious battery qualifies as a " crime of violence" for purposes of that Guideline. We hold that it does not, because the crime does not constitute a " forcible sex offense" or " statutory rape" within the meaning of the applicable Guideline. Because the district court concluded otherwise, we vacate Caceres-Olla's sentence and remand on a closed record for resentencing.
The base offense level for a violation of § 1326 is eight. See U.S.S.G. § 2L1.2(a). If the defendant was previously deported after being convicted of a felony that constitutes a " crime of violence," the offense level goes up by sixteen levels. Id. § 2L1.2(b)(1)(A)(ii).
The presentence report (" PSR" ) concluded that Caceres-Olla's prior conviction for lewd or lascivious battery was a " forcible sex offense" and, consequently, qualified as a " crime of violence" under Guideline 2L1.2(b)(1)(A)(ii). Caceres-Olla objected, arguing that his prior conviction did not constitute a " forcible sex offense," because the Florida statute did not require a non-consensual act and the Guideline's reference to " consent ... [deemed] not legally valid," U.S.S.G. 2L1.2 cmt. n. 1(B)(iii), was not intended to apply to statutes criminalizing sexual activity due only to the victim's age. The district court disagreed, applied the recommended enhancement, and sentenced Caceres-Olla to a 46-month prison term. Caceres-Olla timely appealed.
We review de novo the district court's decision that Caceres-Olla's prior conviction qualifies for a sentencing enhancement under Guideline 2L1.2(b). See United States v. ...