                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 12-50095
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                          3:11-cr-00920-
                                                   BEN-1
 IRVIN SANDOVAL-ORELLANA,
          Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Southern District of California
         Roger T. Benitez, District Judge, Presiding

                   Argued and Submitted
             March 6, 2013—Pasadena, California

                        Filed May 9, 2013

Before: Sidney R. Thomas and Andrew D. Hurwitz, Circuit
  Judges, and Ralph R. Beistline, Chief District Judge.*

                   Opinion by Judge Beistline




 *
   The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
2         UNITED STATES V. SANDOVAL-ORELLANA

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction and sentence for
attempted entry after deportation in a case in which the
defendant argued that his prior conviction for sexual
penetration by foreign object in violation of Calif. Penal Code
§ 289(a)(1) was not an aggravated felony and that he was thus
improperly denied relief during the underlying removal
proceedings.

    The panel held that in the ordinary case, a conviction for
sexual penetration with a foreign object involves a substantial
risk of the use of force against another and therefore qualifies
as an aggravated felony crime of violence as defined in
8 U.S.C. § 1101(a)(43)(F). The panel held accordingly that
§ 289(a)(1) proscribes a categorical aggravated felony crime
of violence under 18 U.S.C. § 16(b). Because, however, the
crime may also be accomplished by means of duress and
duress does not necessarily involve the use, attempted use, or
threatened use of violent physical force, the panel held that
sexual penetration in violation of § 289(a)(1) does not qualify
as a crime of violence under 18 U.S.C. § 16(a).

    The panel held that the sentence imposed was reasonable.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        UNITED STATES V. SANDOVAL-ORELLANA                 3

                        COUNSEL

L. Marcel Stewart, San Diego, California, for Defendant-
Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; and Victor P. White (argued), Assistant
United States Attorney, San Diego, California, for Plaintiff-
Appellee.


                        OPINION

BEISTLINE, Chief District Judge:

    Irvin Sandoval-Orellana appeals his conviction of
attempted entry after deportation in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291 and
affirm.

                             I.

    Sandoval-Orellana was born in Guatemala in 1979 and
was admitted to the United States on or about August 28,
1992, as a lawful permanent resident. In August 2003, he
was convicted of “sexual penetration by foreign object” in
violation of California Penal Code (“PC”) § 289(a)(1), for
which he was sentenced to three years in custody.

    On April 27, 2010, Sandoval-Orellana was served with a
notice to appear, and on May 24, 2010, was placed in
deportation proceedings. The immigration judge (“IJ”) found
him removable under Section 237(a)(2)(A)(iii) of the
4         UNITED STATES V. SANDOVAL-ORELLANA

Immigration and Nationality Act (“INA”), which states that
“[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable.”           8 U.S.C.
                     1
§ 1227(a)(2)(A)(iii). Sandoval-Orellana requested voluntary
departure, but the IJ found him ineligible because he was an
aggravated felon. Sandoval-Orellana was removed from the
United States to Guatemala on or about June 15, 2010.

    On December 31, 2010, Sandoval-Orellana applied for
entry into the United States at the San Ysidro, California, Port
of Entry. He presented what appeared to be a valid
permanent resident card and indicated that he was traveling
back to Los Angeles from a visit with family in Mexico. He
was detained by immigration. On March 9, 2011, a grand
jury returned an indictment charging Sandoval-Orellana with
attempted entry after deportation, in violation of 8 U.S.C.
§ 1326(a) and (b).

    A person accused of violating 8 U.S.C. § 1326 may
collaterally attack the underlying deportation in certain
circumstances. 8 U.S.C. § 1326(d). Accordingly, on April
26, 2011, Sandoval-Orellana filed a motion to dismiss the
indictment, claiming that his original deportation was invalid.

   On July 25, 2011, the district court issued a written
decision denying Sandoval-Orellana’s Motion to Dismiss.
United States v. Sandoval-Orellana, No. 3:11-cr-920 BEN


    1
     In addition to his conviction for unlawful penetration, Sandoval-
Orellana was also deemed removable under INA Section 237(a)(2)(A)(ii)
for having been convicted of two crimes involving moral turpitude,
forgery (PC § 475(c)) and grand theft (PC § 487), which did not arise out
of a single scheme of criminal conduct. 8 U.S.C. § 1227(a)(2)(A)(ii).
This finding is not at issue in this appeal.
        UNITED STATES V. SANDOVAL-ORELLANA                 5

(S.D. Cal. July 25, 2011). Sandoval-Orellana subsequently
entered a conditional guilty plea and was sentenced to fifty-
seven months in prison and three years of supervised release.

    Sandoval-Orellana appeals, arguing that he was
wrongfully deported because he was never convicted of an
aggravated felony and thus was eligible for various types of
discretionary relief, including cancellation of removal under
8 U.S.C. § 1229b(a), voluntary departure under 8 U.S.C.
§ 1229c, and waiver of excludability under 8 U.S.C.
§ 1182(h). Sandoval-Orellana also argues the fifty-seven
month sentence imposed was more severe than necessary to
meet the goals of 18 U.S.C. § 3553(a).

                             II.

    Under Section 237(a)(2)(A)(iii) of the INA, “[a]ny alien
who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An
“aggravated felony” includes “a crime of violence” as defined
in 18 U.S.C. § 16 for which the term of imprisonment is at
least one year. 8 U.S.C. § 1101(a)(43)(F). A crime of
violence under Title 18 (and for purposes of the INA) is
defined as

       (a) an offense that has as an element the use,
       attempted use, or threatened use of physical
       force against the person or property of
       another, or

       (b) any other offense that is a felony and that,
       by its nature, involves a substantial risk that
       physical force against the person or property
6         UNITED STATES V. SANDOVAL-ORELLANA

        of another may be used in the course of
        committing the offense.

18 U.S.C. § 16 (emphasis added).

    We review whether a prior conviction constitutes a crime
of violence de novo. United States v. Bonilla-Montenegro,
331 F.3d 1047, 1049 (9th Cir. 2003). We also review de
novo the denial of a motion to dismiss pursuant to 8 U.S.C.
§ 1326(d). United States v. Ramos, 623 F.3d 672, 679 (9th
Cir. 2010). A district court’s findings of fact underlying its
denial of such a motion are reviewed for clear error, and we
may affirm the denial of a motion to dismiss on any basis
supported by the record. See United States v. Reyes-Bonilla,
671 F.3d 1036, 1042 (9th Cir. 2012).

    To determine whether a criminal offense qualifies as an
aggravated felony, we first apply the categorical approach set
out in Taylor v. United States, 495 U.S. 575 (1990).2 Under
that approach, we “look only to the fact of conviction and the
statutory definition of the prior offense and compare it to the
generic definition of the offense.” Ramirez-Villalpando v.
Holder, 645 F.3d 1035, 1039 (9th Cir. 2010) (internal
quotation marks and citation omitted).

    PC § 289(a)(1) states, in relevant part: “Any person who
commits an act of sexual penetration when the act is
accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person shall
be punished by imprisonment.” (emphasis added). Sandoval-

   2
     The court concludes that the modified categorical approach also
discussed in Taylor is not relevant in this case.
           UNITED STATES V. SANDOVAL-ORELLANA                            7

Orellana notes that PC § 289 can be violated with consent
given under duress, and therefore argues that commission of
the crime does not necessarily involve violence. He attempts
to draw a parallel with Valencia v. Gonzales, in which we
held that statutory rape in violation of PC § 261.5(c) is not
categorically a crime of violence given the possible
consensual nature of such sexual intercourse. See 439 F.3d
1046, 1051, 1053 (9th Cir. 2006). The Valencia court noted
that the statute prohibits a broad range of conduct including
“consensual sexual intercourse between a twenty-one-year-
old and a minor one day shy of eighteen,” and thus reasoned
that violation of the statute did not necessarily involve a
substantial risk of violence under § 16(b). Id. at 1051–52.
Sandoval-Orellana suggests the same rationale demonstrates
that PC § 289(a)(1) is not categorically a “crime of violence”
under § 16(b).

    But a conviction under PC § 289(a) does not rest on the
victim’s legal incapacity to consent to sexual penetration;
rather, it requires that the sexual penetration be accomplished
“against the victim’s will.” PC § 289(a)(1). The statutory
rape provision in Valencia, PC § 261.5(c), contains no
comparable language.3 The rationale of Valencia therefore
does not apply.

   Section 16(b) does not require actual violence, but rather
only a substantial risk of violence. We agree with the district
court’s conclusion that although some violations of PC


 3
   “Any person who engages in an act of unlawful sexual intercourse with
a minor who is more than three years younger than the perpetrator is guilty
of either a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one year, or by imprisonment
in the state prison.” Cal. Penal Code § 261.5(c) (1997).
8          UNITED STATES V. SANDOVAL-ORELLANA

§ 289(a) may not involve actual violence, all will involve a
substantial risk of violence. Although sexual penetration
against the victim’s will may be accomplished without the
use of any physical force because psychological coercion may
suffice, this is precisely the type of felony that “by its nature”
brings with it a “substantial risk” that physical force will be
used during the course of the crime. See Lisbey v. Gonzales,
420 F.3d 930 (9th Cir. 2005) (finding that sexual battery
under California PC § 243.4(a) carries a substantial risk of
force).4 The district court aptly noted that “sexual penetration
of another person’s body is not the type of conduct that
occurs accidentally or negligently,” and that it involves an
intimate violation likely to elicit physical resistance from the
victim. It therefore concluded that Sandoval-Orellana’s prior
California conviction for violating PC § 289(a)(1)
categorically qualified as a “crime of violence” under
18 U.S.C. § 16(b), and therefore he had committed an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), making
him deportable under INA § 237(a)(2)(A)(iii).

    We agree. In James v. United States, 550 U.S. 192
(2007), the Supreme Court explained that the “ordinary case”
is the proper focal point of a court’s inquiry under the
categorical approach:




    4
     Lisbey is distinguishable insofar as a conviction for sexual battery
under PC § 243.4(a) “requires that the sexual touching not only be
committed against the victim’s will, but also by the restraint of the
victim.” Lisbey, 420 F.3d at 933. While this attribute of PC § 243.4(a)
strengthens the case for finding sexual battery to be a categorical crime of
violence, however, it does nothing to undermine the conclusion that
forcible sexual penetration in violation of PC § 289(a) is also a crime of
violence because it too involves a substantial risk that force will be used.
           UNITED STATES V. SANDOVAL-ORELLANA                              9

         [T]he proper inquiry is whether the conduct
         encompassed by the elements of the offense,
         in the ordinary case, presents a serious
         potential risk of injury to another. One can
         always hypothesize unusual cases in which
         even a prototypically violent crime might not
         present a genuine risk of injury—for example,
         an attempted murder where the gun,
         unbeknownst to the shooter, had no bullets[.]

Id. at 208 (emphasis added) (citation omitted). Sandoval-
Orellana would have us do precisely what James advises
against, hypothesizing a case where a person consents to
sexual intercourse under duress in circumstances not
presenting a real risk of violence, such as where the victim
agrees to have sex to avoid eviction or professional reprisals.
He argues that in both examples duress could support a
conviction, and the statute therefore criminalizes conduct that
does not create a “substantial risk that physical force may be
used” because the intercourse would be consensual. But this
argument requires the sort of theoretical possibility that was
cautioned against in Gonzales v. Duenas-Alvarez, 549 U.S.
183 (2007)5:

         [T]o find that a state statute creates a crime
         outside the generic definition of a listed crime
         in a federal statute requires more than the
         application of legal imagination to a state
         statute’s language. It requires a realistic


 5
  It also requires us to ignore the significant possibility that a victim who
“consents” to sexual intercourse against his or her will under duress may
change his or her mind during the act and begin to resist, prompting the
perpetrator to use force to complete the act.
10       UNITED STATES V. SANDOVAL-ORELLANA

        probability, not a theoretical possibility, that
        the State would apply its statute to conduct
        that falls outside the generic definition of a
        crime. To show that realistic probability, an
        offender, of course, may show that the statute
        was so applied in his own case. But he must at
        least point to his own case or other cases in
        which the state courts in fact did apply the
        statute in the special (nongeneric) manner for
        which he argues.

Id. at 193.

    We agree with the district court that in the “ordinary
case,” a conviction for sexual penetration with a foreign
object involves a substantial risk of the use of force against
another and therefore qualifies as an aggravated felony crime
of violence as defined in 8 U.S.C. § 1101(a)(43)(F). We
accordingly find that PC § 289(a)(1) proscribes a categorical
aggravated felony crime of violence under 18 U.S.C. § 16(b).
However, because the crime may also be accomplished by
means of “duress” and duress does not necessarily involve the
use, attempted use, or threatened use of violent physical
force, we find that sexual penetration in violation of PC
§ 289(a)(1) does not qualify as a crime of violence under
§ 16(a).

                              III.

    Sandoval-Orellana also collaterally attacks the
deportation order. “To succeed in such a challenge . . . an
alien must demonstrate that: ‘(1) the alien exhausted any
administrative remedies that may have been available to seek
relief against the order; (2) the deportation proceedings at
         UNITED STATES V. SANDOVAL-ORELLANA                 11

which the order was issued improperly deprived the alien of
the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.’” Reyes-Bonilla, 671 F.3d
at 1042–43 (quoting 8 U.S.C. § 1326(d)).

    Even assuming arguendo that Sandoval-Orellana could
satisfy the first two requirements, he cannot meet the third.
To show fundamental unfairness, he must establish prejudice.
United States v. Bustos-Ochoa, 704 F.3d 1053, 1056 (9th Cir.
2012). Because we conclude that Sandoval-Orellana has
been convicted of an aggravated felony, he cannot establish
prejudice. Id. at 1056–57.

                             IV.

    We review all sentences—“whether inside, just outside,
or significantly outside the Guidelines range—under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). However, absent objection at
sentencing, we review for plain error a claim that the district
court procedurally erred by failing to adequately explain its
sentence. United States v. Valencia-Barragan, 608 F.3d
1103, 1108 (9th Cir. 2010). We will reverse under the plain
error standard only if we find error, the error was obvious,
and the error affected the defendant’s substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993).

    We also review sentences to ensure that they are
procedurally reasonable, which requires us to determine
whether the district court appropriately responded to any non-
frivolous arguments for a below-Guideline sentence made by
the defendant. United States v. Carty, 520 F.3d 984, 992–93
(9th Cir. 2008) (en banc). In determining reasonableness, a
reviewing court determines whether the district court properly
12       UNITED STATES V. SANDOVAL-ORELLANA

calculated the Guideline range, properly treated the
Guidelines as advisory, evaluated the factors under 18 U.S.C.
§ 3553(a), and adequately explained the reasons for the
sentence. Id. In particular, we review whether the district
court committed a significant procedural error. A district
court commits “significant procedural error” by “failing to
consider the § 3553(a) factors” or by “failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51.

    There is no dispute here as to the proper Guidelines
calculation. Nor is there a dispute that Sandoval-Orellana
was given the opportunity to argue for a reduced sentence.
But Sandoval-Orellana argues that the sentence imposed was
more severe than necessary to meet the goals of 18 U.S.C.
§ 3553(a) and complains that the district court failed to
adequately address his argument for imposition of a below-
Guideline thirty-six month sentence.

    It is well established that “when a judge decides simply to
apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007). When a party raises a
specific, non-frivolous argument that is relevant to
sentencing, “the judge should normally explain why he
accepts or rejects the party’s position.” Carty, 520 F.3d at
992–93. However, the district court’s failure to do so is not
procedural error where “adequate explanation” may “be
inferred from the PSR or the record as a whole.” Id. at 992.
A thorough explanation is not necessary where the
defendant’s argument for a lower sentence is straightforward
and uncomplicated. United States v. Overton, 573 F.3d 679,
699–700 (9th Cir. 2009).
         UNITED STATES V. SANDOVAL-ORELLANA                13

     If the record “makes clear that the sentencing judge
listened to each argument” and “considered the supporting
evidence,” the district court’s statement of reasons for the
sentence, although brief, will be “legally sufficient.” Rita,
551 U.S. at 358. Here, the district court announced a
tentative sentence of sixty-three months. But after hearing
from defense counsel and Sandoval-Orellana, and after
considering all the § 3553(a) factors, the district court
imposed a sentence at the low end of the advisory range, and
six months lower than its previously-announced tentative
sentence. The district court specifically noted that it saw
nothing that would warrant a variance below the Guideline
range. The record as a whole shows that the district court
considered Sandoval-Orellana’s claims about his
rehabilitation. There is no plain error.

                      CONCLUSION

    Sandoval-Orellana’s prior conviction for unlawful sexual
penetration in violation of California Penal Code § 289(a)(1),
for which he was sentenced to more than one year in custody,
constituted an aggravated felony under 18 U.S.C. § 16(b) and
8 U.S.C. § 1101(a)(43)(F). Accordingly, he was ineligible for
discretionary relief as an aggravated felon and the district
court appropriately denied his motion to dismiss. The fifty-
seven month sentence was reasonable.

   AFFIRMED.
