                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 11 2014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.
                                                 SUPPLEMENTAL
SILVIO ANTONIO CONTRERAS-                        MEMORANDUM*
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
        In its petition for rehearing, the government correctly points out that

because Contreras-Martinez has been released from custody and removed to

Mexico, he may not be resentenced in absentia under this Court’s precedent. See

United States v. Aguilar-Reyes, 723 F.3d 1014, 1017 (9th Cir. 2013). Therefore,

we affirm Contreras-Martinez’s sentence without prejudice with instructions that

upon his return to the United States or waiver of his right to be physically present

at resentencing, his previous sentence shall be vacated and that he shall be

resentenced in light of this decision. See id. at 1018.

      Affirmed (with instructions).




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