                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 12-10158
                Plaintiff-Appellee,
                                             D.C. No.
                 v.                       4:10-cr-02123-
                                           DCB-JJM-1
ALVARO GONZALEZ-MONTERROSO,
AKA Alvaro Gonzalez,
            Defendant-Appellant.            OPINION


      Appeal from the United States District Court
               for the District of Arizona
       David C. Bury, District Judge, Presiding

               Argued and Submitted
     October 10, 2013—San Francisco, California

                Filed February 14, 2014

    Before: J. Clifford Wallace, Milan D. Smith, Jr.,
          and Sandra S. Ikuta, Circuit Judges.

              Opinion by Judge Ikuta;
            Concurrence by Judge Wallace
2       UNITED STATES V. GONZALEZ-MONTERROSO

                           SUMMARY*


                          Criminal Law

    The panel reversed the district court’s determination that
the defendant’s prior Delaware conviction for attempted rape
in the fourth degree was a “crime of violence” warranting a
16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
and remanded for resentencing.

    The panel held that because Delaware’s statutory
definition of “substantial step” is materially different from
and encompasses more conduct than the federal generic
definition, the Delaware attempt statute criminalizes more
conduct than the federal generic attempt definition, and the
defendant’s prior state conviction therefore does not qualify
as a federal generic attempt offense under the Taylor
categorical approach.

    The panel held that the modified categorical approach is
not available because whatever the underlying facts or the
evidence presented, the defendant would not have been
convicted of an offense with the same elements as an
attempted crime of violence.

    Concurring, Judge Wallace wrote that because the
defendant’s underlying offense does not meet the generic
definitions proposed by the government, the panel should
reverse the sentence without determining whether the


  *
    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. GONZALEZ-MONTERROSO                 3

defendant committed the elements of the generic definition of
attempt, which requires answering a question reserved by the
Supreme Court.


                        COUNSEL

Roger H. Sigal, Law Offices of Roger H. Sigal, Tucson,
Arizona, for Defendant-Appellant.

Erica Anderson McCallum (argued), Assistant United States
Attorney; John S. Leonardo, United States Attorney; Robert
L. Miskell, Appellate Chief, United States Attorney’s Office,
Tucson, Arizona, for Plaintiff-Appellee.


                         OPINION

IKUTA, Circuit Judge:

    This appeal raises the question whether Delaware’s
criminal attempt statutes, see Del. Code Ann. tit. 11,
§§ 531(2), 532, constitute a federal generic attempt crime for
purposes of imposing an enhancement under the U.S.
Sentencing Guidelines.         Because we conclude that
Delaware’s definition of “attempt” criminalizes more conduct
than the federal generic definition, we conclude that the
district court erred in imposing the enhancement.

                              I

    On August 4, 2011, Alvaro Gonzalez-Monterroso pleaded
guilty to one count of illegal reentry, pursuant to 8 U.S.C.
§ 1326, in the District of Arizona. Gonzalez claims that the
4            UNITED STATES V. GONZALEZ-MONTERROSO

district court erred in determining that his prior state court
conviction for attempted rape in the fourth degree, under Del.
Code Ann. tit. 11, §§ 531, 532, 770, qualified as a “crime of
violence” warranting a 16-level enhancement under
§ 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines.

    To analyze this appeal, we first set forth the statutory
framework. The Sentencing Guidelines impose a base
offense level of 8 for an alien convicted of unlawful reentry
in violation of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2(a). If
the defendant has a prior felony conviction that qualifies as a
“crime of violence,” the Guidelines provide for a 16-level
enhancement. Id. § 2L1.2(b)(1)(A)(ii).1 A “crime of
violence” is defined to include a range of offenses, including
“statutory rape” and “sexual abuse of a minor.”2 Id. § 2L1.2


        1
     Section 2L1.2(b)(1) of the U.S. Sentencing Guidelines states, in
pertinent part:

             If the defendant previously was deported, or unlawfully
             remained in the United States, after—

             (A) a conviction for a felony that is . . . (ii) a crime of
             violence . . . increase [the offense level] by 16 levels
             ....

U.S.S.G. § 2L1.2(b)(1).
    2
        The first application note to § 2L1.2 provides in relevant part:

             “Crime of violence” means any of the following
             offenses under federal, state, or local law: Murder,
             manslaughter, kidnapping, aggravated assault, forcible
             sex offenses (including where consent to the conduct is
             not given or is not legally valid, such as where consent
             to the conduct is involuntary, incompetent, or coerced),
             statutory rape, sexual abuse of a minor, robbery, arson,
         UNITED STATES V. GONZALEZ-MONTERROSO                        5

cmt. n.1(B)(iii). A prior conviction for an attempt to commit
a state offense also constitutes a “crime of violence” if the
completed offense qualifies as a “crime of violence” in its
own right. Id. § 2L1.2 cmt. n.5; see also United States v.
Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).

    To determine whether a prior state court conviction
constitutes a “crime of violence” warranting a 16-level
enhancement, a sentencing court must employ the approach
outlined in Taylor v. United States, 495 U.S. 575 (1990).
First, the court compares the elements of the state statute of
conviction with the federal generic definition of the crime.
United States v. Velasquez-Bosque, 601 F.3d 955, 957–58
(9th Cir. 2010). Where the federal generic offense
encompasses numerous crimes, as is the case with the “crime
of violence” offense, the court must compare the crime of
conviction with each of the crimes falling within that offense
category. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853
(9th Cir. 2013); see also Cerezo v. Mukasey, 512 F.3d 1163,
1166 (9th Cir. 2008).

    If the defendant is convicted of an attempt crime, a
sentencing court must determine: “whether the defendant’s
conviction establishes that he committed the elements of the
generic definition of ‘attempt’ and that the underlying offense
he attempted meets the generic definition of that offense.”
United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th


         extortion, extortionate extension of credit, burglary of
         a dwelling, or any other offense under federal, state, or
         local law that has as an element the use, attempted use,
         or threatened use of physical force against the person of
         another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
6      UNITED STATES V. GONZALEZ-MONTERROSO

Cir. 2012). If the state attempt statute criminalizes more
conduct than the federal generic definition of “attempt,” a
state attempt crime does not categorically constitute a generic
federal attempt crime. If the state attempt statute is a
categorical match for the federal generic definition of
“attempt,” then the court must proceed to determine whether
the state crime of conviction for the underlying offense is a
categorical match for any of the federal generic offenses that
are listed as crimes of violence. See id. In sum, in dealing
with attempt crimes, the district court can impose the 16-level
enhancement under § 2L1.2(a) only if both the state’s
definition of “attempt” and the underlying state offense are
categorical matches for the federal generic “attempt”
definition and the underlying federal generic offense.

     Where the state statute of conviction criminalizes more
conduct than the federal generic offense, the sentencing court
may apply a modified categorical approach in a “‘narrow
range of cases.’” Descamps v. United States, 133 S. Ct. 2276,
2283–84 (2013) (quoting Taylor, 495 U.S. at 602); see also
United States v. Acosta-Chavez, 727 F.3d 903, 907 (9th Cir.
2013). As Descamps recently clarified, application of the
modified categorical approach is appropriate only where the
state criminal statute is divisible. 133 S. Ct. at 2283–85.
“[D]ivisibility exists only when an element of the crime of
conviction contains alternatives, one of which is an element
of its federal analogue.” Acosta-Chavez, 727 F.3d at 909
(citing Descamps, 133 S. Ct. at 2283–84). For example, if a
state statute prohibits breaking and entering in any of four
alternative places (a building, ship, vessel, or vehicle) and
only one of these alternatives (breaking into a building)
qualifies as the federal generic offense of burglary, then a
court may consider whether the defendant’s conviction was
based on unlawful entry into a building. See Descamps,
       UNITED STATES V. GONZALEZ-MONTERROSO                 7

133 S. Ct. at 2284 (discussing Shepard v. United States,
544 U.S. 13 (2005)). In making this determination, the court
may consider a limited class of judicially noticeable
documents to determine whether the applicable alternative
(i.e., breaking into a building, rather than a vehicle, in the
example given in Descamps) was the basis of the conviction.
See United States v. Snellenberger, 548 F.3d 699, 701–02
(9th Cir. 2008) (en banc) (per curiam), abrogated on other
grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir.
2012) (en banc). Applied in this manner, the modified
categorical approach “merely helps implement the categorical
approach” by identifying the specific statutory elements of
the conviction to compare to the generic offense. Descamps,
133 S. Ct. at 2285.

    We apply the same modified categorical analysis in cases
where the defendant was convicted of an attempt crime, if the
state attempt statute is divisible and some of the alternative
definitions of “attempt” do not categorically match the
federal generic definition of “attempt.” In such a case, the
sentencing court may determine, based on judicially
noticeable documents, whether the defendant was convicted
of a statutory definition of “attempt” that meets the federal
generic definition. See id.

                              II

    We now turn to the facts of this case. Gonzalez was born
in 1981 in Guatemala. At the age of 19, he entered the
United States illegally. He eventually settled in Delaware,
where he resided for almost a decade.
8       UNITED STATES V. GONZALEZ-MONTERROSO

    In January 2010, Gonzalez pleaded guilty in Delaware
state court to attempted rape in the fourth degree, in violation
of section 770 of the Delaware Criminal Code.3


    3
    At that time, section 770 of the Delaware Criminal Code stated in
pertinent part:

        (a) A person is guilty of rape in the fourth degree when
        the person:

            (1) Intentionally engages in sexual intercourse with
            another person, and the victim has not yet reached
            that victim’s sixteenth birthday; or

            (2) Intentionally engages in sexual intercourse with
            another person, and the victim has not yet reached
            that victim’s eighteenth birthday, and the person is
            30 years of age or older, except that such
            intercourse shall not be unlawful if the victim and
            person are married at the time of such intercourse;
            or

            (3) Intentionally engages in sexual penetration with
            another person under any of the following
            circumstances:

                 a. The sexual penetration occurs without the
                 victim’s consent; or

                 b. The victim has not reached that victim’s
                 sixteenth birthday; or

            (4) Intentionally engages in sexual intercourse or
            sexual penetration with another person, and the
            victim has reached that victim’s sixteenth birthday
            but has not yet reached that victim’s eighteenth
            birthday and the defendant stands in a position of
            trust, authority or supervision over the child, or is
            an invitee or designee of a person who stands in a
        UNITED STATES V. GONZALEZ-MONTERROSO                        9

    At a sentencing hearing on January 4, 2010, the state
prosecutor briefly described the allegations supporting
Gonzalez’s conviction. The victim “was 14 years old, the
defendant was driving her home from church. He drove past
her house, pulled onto the shoulder of the road, began rubbing
on her thigh, tried to kiss her, and asked her to have sex with
him.” Gonzalez was 28 years old at the time of the incident.

    Shortly after the court entered judgment in the Delaware
proceeding, the government deported Gonzalez to his native
Guatemala. He spent several months outside the United
States. On July 26, 2010, Gonzalez was arrested in Arizona
by U.S. Border Patrol agents. He was indicted on one count
of illegal reentry under 8 U.S.C. § 1326 (enhanced by
8 U.S.C. § 1326(b)(2)), and subsequently pleaded guilty to
this charge.

    In calculating Gonzalez’s total offense level under the
Sentencing Guidelines, the Presentence Investigation Report
(PSR) imposed a 16-level enhancement under
§ 2L1.2(b)(1)(A) on the ground that Gonzalez had previously
been deported after a conviction for attempted fourth degree
rape, which the PSR determined was a “crime of violence.”
In reaching this conclusion, the PSR first acknowledged that
the state statute of conviction, section 770, was not a
categorical match to any federal generic “crime of violence,”
because section 770 criminalized sexual offenses when the
sexual intercourse was consensual and the victim was 17
years of age. Notwithstanding the lack of a categorical match


             position of trust, authority or supervision over the
             child.

Del. Code Ann. tit. 11, § 770(a) (1998).
10     UNITED STATES V. GONZALEZ-MONTERROSO

between the prior state conviction and the federal generic
crime of violence offense, the PSR then applied the modified
categorical approach. Because documents in the record
established that Gonzalez was 28 and the victim was 14 at the
time of the state offense, the PSR concluded that Gonzalez
had been convicted of a state offense that qualified as “sexual
abuse of a minor,” which is a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A).

    Gonzalez objected to this conclusion on the ground that
his prior state conviction did not qualify as a crime of
violence even under the modified categorical approach. He
argued (among other reasons) that he had been convicted of
an “attempt” crime, and Delaware’s definition of “attempt”
criminalized more conduct than the federal generic attempt
offense.

    At the sentencing hearing, the district court rejected
Gonzalez’s objections. Because the district court did not
have the benefit of the Supreme Court’s decision in
Descamps, it followed the PSR in its application of the
modified categorical approach. Relying on the judicially
noticeable documents in the record, the district court
determined that Gonzalez had been 30 years of age, and his
victim had been 14 at the time of the state offense, which
supported the conclusion that Gonzalez had been convicted
of a crime of violence warranting a 16-level enhancement.
Accordingly, the district court adopted the PSR’s guidelines
calculation and the corresponding guidelines range of 51 to
63 months imprisonment.
       UNITED STATES V. GONZALEZ-MONTERROSO                 11

                              III

    On appeal, Gonzalez claims that his state court conviction
for attempted rape in the fourth degree under section 770 of
the Delaware Criminal Code does not constitute a “crime of
violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A) under
either a categorical or modified categorical approach. We
review de novo the district court’s determination that a prior
conviction constitutes a crime of violence. Gomez-
Hernandez, 680 F.3d at 1174.

       Analyzing this claim requires us to first determine
whether Delaware’s attempt statute is a categorical match for
the federal definition of “attempt.” Id. at 1175. We have
defined “attempt” as requiring “[1] an intent to commit” the
underlying offense, along with “[2] an overt act constituting
a substantial step towards the commission of the offense.”
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir.
2011) (alterations in original); see also United States v.
Rivera-Ramos, 578 F.3d 1111, 1113–14 (9th Cir. 2009).
“‘Mere preparation’ to commit a crime ‘does not constitute a
substantial step.’” Hernandez-Cruz, 651 F.3d at 1102
(quoting United States v. Buffington, 815 F.2d 1292, 1301
(9th Cir. 1987)). A substantial step occurs when a
defendant’s “actions ‘unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent
circumstances.’” Id. (alteration in original) (quoting United
States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per
curiam)). “Even when the defendant’s intent is clear, his
actions must cross the line between preparation and attempt
. . . .” United States v. Yossunthorn, 167 F.3d 1267, 1271 (9th
Cir. 1999) (internal quotation omitted). In Yossunthorn, for
instance, we reversed a defendant’s conviction for attempted
possession of heroin with intent to distribute because there
12      UNITED STATES V. GONZALEZ-MONTERROSO

was insufficient evidence to show that the defendant had
taken a substantial step toward completing the violation. Id.
at 1270–71. The evidence established that the defendant had
tried to schedule a meeting with a heroin dealer at a local
McDonald’s in order to make a purchase, and had conducted
countersurveillance in the restaurant parking lot to detect law
enforcement activity. Id. at 1269. While there was “no
question that there was sufficient evidence that [the
defendant] intended to possess heroin with intent to
distribute,” id. at 1270, we held that the defendant’s act of
surveying the McDonald’s was not a substantial step because
it “did not constitute an appreciable fragment of the crime of
drug possession with intent to distribute,” id. at 1272 (internal
quotation omitted). Nor did making an appointment to
purchase the heroin constitute a substantial step, because the
defendant “had not agreed to purchase any particular quantity
of heroin or arranged for its delivery.” Id. at 1273.

    We next compare this federal generic definition of
“attempt” to the Delaware definition of “attempt” for
purposes of its state attempt crimes. Under Delaware law, a
person is guilty of an attempt crime if that person either
“[i]ntentionally engages in conduct which would constitute
the crime if the attendant circumstances were as the person
believes them to be,” Del. Code Ann. tit. 11, § 531(1), or if
the person “[i]ntentionally does or omits to do anything
which, under the circumstances as the person believes them
to be, is a substantial step in a course of conduct planned to
culminate in the commission of the crime by the person,” id.
§ 531(2).

    For purposes of section 531(2), Delaware defines a
“substantial step” as “an act or omission which leaves no
reasonable doubt as to the defendant’s intention to commit
       UNITED STATES V. GONZALEZ-MONTERROSO                  13

the crime which the defendant is charged with attempting.”
Id. § 532. In light of this statutory definition, we conclude
that Delaware’s “attempt” crimes criminalize more conduct
than generic federal attempt offenses. While section 532 is
satisfied by proof of an act demonstrating the defendant’s
intent to commit a crime, this is not enough under the federal
definition; even when the defendant’s intent is clear, only acts
which “unequivocally demonstrat[e] that the crime will take
place unless interrupted by independent circumstances”
suffice. Hernandez-Cruz, 651 F.3d at 1102 (quoting Goetzke,
494 F.3d at 1237). This means that under Delaware law, a
defendant could be held liable for an attempt due to “mere
preparation” or other preliminary acts not “of such
substantiality that, unless frustrated, the crime would have
occurred,” Saavedra-Velazquez, 578 F.3d at 1107 (internal
quotation omitted), which would not constitute an attempt for
purposes of federal criminal law.

    Delaware courts recognize the breadth of the statutory
definition of “substantial step.” As explained by the
Delaware Supreme Court, the definition of “substantial step”
is “‘without precedent in other statutes’” because it focuses
on the defendant’s intent rather than on whether the defendant
has taken an overt act that qualifies as a substantial step. See
Gronenthal v. State, 779 A.2d 876, 880 (Del. 2001) (quoting
Del. Crim. Code with Commentary § 532, at 156–57 (1973)).
In Gronenthal, for instance, the defendant argued that he
could not be found guilty of an attempt crime because even
though “the State presented substantial evidence of his
‘intent’ to commit murder,” the state “failed to establish
sufficient evidence that he acted on that intent, so as to
constitute a ‘substantial step’ toward attempting to murder”
the victim. Id. The Delaware Supreme Court rejected this
argument, explaining that Delaware had deliberately rejected
14       UNITED STATES V. GONZALEZ-MONTERROSO

the Model Penal Code’s definition of a “substantial step,” and
adopted an innovative definition that would allow the jury to
decide “‘the point at which there remains no reasonable doubt
as to [the defendant’s] intention to commit the crime.’” Id.
(quoting Del. Crim. Code with Commentary § 532, at
156–57). Accordingly, “[t]he law of ‘attempts’ under the
[Delaware] Criminal Code ‘seeks to prevent even the
preparations from crime by threatening punishment prior to
the completion of the crime.’” Hassan-El v. State, 911 A.2d
385, 392 (Del. 2006) (emphasis added) (quoting Del. Crim.
Code with Commentary § 531, at 151). Because Delaware
courts have not narrowed the breadth of section 532, we need
not reach the question expressly reserved by Descamps,
“whether, in determining a crime’s elements, a sentencing
court should take account not only of the relevant statute’s
text, but of judicial rulings interpreting it.” 133 S. Ct. at
2291.4

    Because Delaware’s statutory definition of “substantial
step” is materially different from and encompasses more
conduct than the federal generic definition, the Delaware
attempt statute criminalizes more conduct than the federal
generic attempt offense. Therefore, Gonzalez’s prior state
conviction for an attempt offense (attempted rape in the
fourth degree) does not qualify as a federal generic attempt
offense under the Taylor categorical approach.


 4
   In any event, contrary to the concurrence’s suggestion, we declare no
new principle of law by considering the Delaware Supreme Court’s
explanation of Delaware state law. It is well established that when
“determining the categorical reach of a state crime, we consider not only
the language of the state statute, but also the interpretation of that
language in judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d
1010, 1016 (9th Cir. 2006).
       UNITED STATES V. GONZALEZ-MONTERROSO                15

    The government argues that we may nevertheless conduct
a modified categorical analysis of the Delaware attempt
statute. Under the modified categorical approach, the
government argues, we can take note of Gonzalez’s
admission in the change of plea hearing that he rubbed the
victim’s thigh, attempted to kiss her, and asked her to have
sex with him. According to the government, this shows both
Gonzalez’s specific intent to engage in sex with the victim
and an overt act which was a substantial step toward
committing the crime.

     We disagree, because the modified categorical approach
is not available in this context. Under Descamps, we may
apply the modified categorical approach only to state statutes
that are divisible, meaning they set forth alternative ways to
commit an offense. 133 S. Ct. at 2283–85. Here, while
Delaware’s Criminal Code offers two alternative ways a
person could be guilty of attempting to commit a crime, the
first alternative, section 531(1) (engaging in conduct that
would be criminal if the circumstances were as the defendant
believed them to be) is inapplicable in this case, and the
second alternative, section 531(2), criminalizes more conduct
than the federal attempt statute, and is not itself divisible.
Whatever the underlying facts or the evidence presented,
Gonzalez still would not have been convicted of an offense
with the same elements as an attempted crime of violence.
Id. at 2290.

    Because Gonzalez’s attempt crime does not qualify as a
federal generic attempt crime for purposes of
§ 2L1.1(b)(1)(A), we conclude that the district court erred in
adding a 16-level enhancement. Accordingly, we need not
address Gonzalez’s arguments regarding the substantive
statute of conviction or his arguments that his sentence was
16      UNITED STATES V. GONZALEZ-MONTERROSO

procedurally and substantively unreasonable. We reverse and
remand for re-sentencing consistent with this opinion.

     REVERSED AND REMANDED



WALLACE, Circuit Judge, concurring:

    Recently, the Supreme Court expressly reserved “the
question whether, in determining a crime’s elements, a
sentencing court should take account not only of the relevant
statute’s text, but of judicial rulings interpreting it.”
Descamps v. United States, 133 S. Ct. 2276, 2291 (2013). As
a matter of judicial restraint, we should not declare a principle
of law unless we must. Local No. 8-6, Oil, Chem. & Atomic
Workers Int’l Union, AFL-CIO v. Missouri, 361 U.S. 363,
367 (1960) (“the duty of this Court is to decide actual
controversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it”)
(citation omitted). Thus, if the Supreme Court has expressly
reserved a question, and we can resolve an appeal without
addressing that question, principles of judicial restraint direct
us to resolve the appeal on a different ground.

    The majority recognizes that the Supreme Court has
reserved whether sentencing courts should look to state
judicial rulings interpreting the state’s criminal statutory law.
Supra at 14 (citing Descamps). The majority states that they
are not answering that reserved question, but they do analyze
decisions of the Delaware Supreme Court about the definition
of “attempt” under Delaware law. Supra at 13–14.
       UNITED STATES V. GONZALEZ-MONTERROSO                17

    Regardless of whether the majority declares a “new”
principle of law, supra at 14 n.4, in my view there is no need
to even address the question the Supreme Court reserved. As
the majority recognizes, where a defendant has been
convicted of an attempt crime, the “crime of violence”
sentencing enhancement can only be applied if “the
defendant’s conviction establishes that he committed the
elements of the generic definition of ‘attempt’ and that the
underlying offense he attempted meets the generic definition
of that offense.” United States v. Gomez-Hernandez,
680 F.3d 1171, 1175 (9th Cir. 2012). Gonzalez’s underlying
offense does not meet the generic definitions proposed by the
government. Therefore, the district court improperly assessed
the 16-level enhancement, and we should reverse the sentence
without determining whether he committed the elements of
the generic definition of attempt, which requires answering
the question reserved by the Supreme Court in Descamps.

    Gonzalez pleaded guilty to attempted rape in the fourth
degree in Delaware in 2009. At the time of conviction, rape
in the fourth degree was defined in the Delaware Criminal
Code as occurring when a person:

       (1) Intentionally engages in sexual intercourse
       with another person, and the victim has not
       yet reached that victim’s sixteenth birthday;
       or

       (2) Intentionally engages in sexual intercourse
       with another person, and the victim has not
       yet reached that victim’s eighteenth birthday,
       and the person is 30 years of age or older,
       except that such intercourse shall not be
18      UNITED STATES V. GONZALEZ-MONTERROSO

        unlawful if the victim and person are married
        at the time of such intercourse; or

        (3) Intentionally engages in sexual penetration
        with another person under any of the
        following circumstances:

            a. The sexual penetration occurs without
        the victim’s consent; or

            b. The victim has not reached that victim’s
        sixteenth birthday; or

        (4) Intentionally engages in sexual intercourse
        or sexual penetration with another person, and
        the victim has reached that victim’s sixteenth
        birthday but has not yet reached that victim’s
        eighteenth birthday and the defendant stands
        in a position of trust, authority or supervision
        over the child, or is an invitee or designee of
        a person who stands in a position of trust,
        authority or supervision over the child.

    Del. Code Ann. tit. 11, § 770(a) (1998) (section 770).
The government argues that Gonzalez was convicted of a
“forcible sex offense” “where consent to the conduct is not
given or is not legally valid,” or “statutory rape,” which are
both specifically enumerated examples of crimes of violence
in the Sentencing Guidelines. U.S.S.G. § 2L1.2 cmt. n.
1(B)(iii).1 Under our recent precedent, it is clear that both


 1
   The government argued before the district court that section 770 was
a forcible sex offense, statutory rape, or sexual abuse of a minor. The
district court applied the crime of violence enhancement, but did not
         UNITED STATES V. GONZALEZ-MONTERROSO                            19

arguments are untenable under either the categorical or
modified categorical approaches.

    The government argues that because Gonzalez’s victim
was under the age of 16, she “was legally unable to give
consent” under Delaware law, and under a plain reading of
the Sentencing Guidelines, his sex offense conviction was
forcible. As of the date of argument in this case, whether a
sex crime where the victim could not consent due to age is
necessarily a forcible sex offense remained an open question
in this Circuit. Compare United States v. Banos-Mejia, 2013
WL 1613222, at *2 (9th Cir. Apr. 16, 2013) (unpub.) (a
conviction for a sexual offense when the victim “is not legally
competent to consent because of her age . . . constitutes a
‘forcible sex offense’ and, therefore, it categorically qualifies
as a ‘crime of violence’”), withdrawn on denial of reh’g en
banc, 2013 WL 4038591 (9th Cir. July 19, 2013) with United



clearly rule on which generic offense Gonzalez committed. In his opening
brief, Gonzalez argued that his conviction does not match generic
statutory rape or sexual abuse of a minor. The government failed to
defend explicitly the district court on either ground in its answering brief,
arguing only that Gonzalez was convicted of a forcible sex offense. The
government first argued that Gonzalez was convicted of generic statutory
rape in a footnote in its letter response to our August 8, 2013 order
requesting further briefing regarding Descamps.

     The government’s failure to raise this argument in its answering brief
may mean that it has been waived. See United States v. Caceres-Olla,
738 F.3d 1051, 1054 n.1 (9th Cir. 2013) (“The government did not
respond to this argument [raised by the defendant], and so has waived
reliance on that ‘crime of violence’ variant”). I consider whether the
Delaware statute is generic statutory rape for the sake of clarity. The
government has never argued before this court that Gonzalez was
convicted of sexual abuse of a minor, so that argument is clearly waived
and I do not consider it.
20      UNITED STATES V. GONZALEZ-MONTERROSO

States v. Gonzalez-Aparicio, 663 F.3d 419, 437 n. 5 (9th Cir.
2011) (Tashima, J., dissenting) (“But [the government’s]
reading would render the term ‘statutory rape’ superfluous: if
statutory rape crimes are ‘forcible sex offenses’ simply
because the minor’s consent is invalid under state law, then
why does the commentary list statutory rape separately?”)

    This is no longer an open question. Not all convictions
for sexual conduct with minors are “forcible sex offenses.”
Caceres-Olla, 738 F.3d at 1056. The Sentencing Guidelines
commentary lists three separate categories of sex crimes:
“forcible sex offenses,” “statutory rape,” and “sexual abuse
of a minor.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Sexual
conduct with minors, regardless of whether the victim in fact
consents, is a crime normally called “statutory rape.”
Caceres-Olla, 738 F.3d at 1055. If all sex offenses based
solely on the fact that the victim is unable to consent under
law because of age are “forcible sex offenses,” the separately
enumerated category of “statutory rape” in the Guidelines
commentary would be superfluous. Id. at 1055–56. Thus,
“[i]f all sex offenses ‘where consent . . . is not legally valid’
on the basis of age are, by definition, ‘forcible,’ there would
be no need to separately enumerate ‘statutory rape.’” Id. at
1056. We must interpret statutes to give effect to all
provisions and not render any part surplussage. Id.
Therefore, a sex offense against a minor is not automatically
a “forcible sex offense,” because such crimes are usually
called “statutory rape,” a separate category. A crime is only
a “forcible sex offense” under the Sentencing Guidelines if
the crime involves “actual compulsion.” Id. at 1057, quoting
United States v. Rangel-Castaneda, 709 F.3d 373, 380 (4th
Cir. 2013).
         UNITED STATES V. GONZALEZ-MONTERROSO                           21

    At one point in its brief, the government suggests that the
police report from Gonzalez’s arrest shows he actually
compelled his victim. But the sentencing court could not
consider the police report, because the report was not
incorporated by reference in the plea agreement for
Gonzalez’s conviction, nor stipulated to by Gonzalez’s
attorney during the plea colluquy. See United States v.
Almazan-Becerra, 537 F.3d 1094, 1098 (9th Cir. 2008).

    Further, the Delaware courts themselves call section 770
a law barring “statutory rape.”2 See Pritchard v. State,
842 A.2d 1244, 2004 WL 249419, at *1 (Del. Feb. 4, 2004)
(unpub.) (calling a crime under section 770 “statutory rape”);
see also State v. Waters, 2008 WL 4382801, at *1 (Del. Supr.
Ct. May 30, 2008) (calling offenses under section 770
“statutory rape”). Thus, Gonzalez’s conviction should not be
considered a forcible sex offense.

    There is nothing in the record properly subject to judicial
notice to indicate that Gonzalez actually compelled his
victim. The government has instead consistently argued his
crime was a forcible sex offense solely because of the
victim’s age. That argument is foreclosed by Caceres-Olla.
Gonzalez was not convicted of a generic “forcible sex
offense.”

    The government alternatively argues that Gonzalez was
convicted of generic “statutory rape.” The generic definition
of that crime was somewhat unclear until recently, but we


  2
   Unlike the majority, I cite to Delaware case law only to buttress my
conclusion. As stated, “forcible sex offenses” do not include offenses
based solely on a victim’s age because of a simple interpretation of federal
law, not state judicial rulings.
22     UNITED STATES V. GONZALEZ-MONTERROSO

have now resolved any confusion. “Statutory rape” has four
elements: “(1) a mens rea level of knowingly; (2) a sexual
act; (3) with a minor between the ages of 12 and 16; and
(4) an age difference of at least four years between the
defendant and the minor.” United States v. Gomez, 732 F.3d
971, 988 (9th Cir. 2013). In Gomez, we rejected the
government’s argument that the generic definition does not
include that four-year age differential. Id. at 988 n.18.

    As the government admits, Gonzalez’s prior conviction
fell under either subsections 770(a)(1) or (a)(3). Neither
subsection requires a four-year age differential between the
defendant and victim, and both are therefore broader than the
generic federal definition of statutory rape. Delaware does
create an affirmative defense to a prosecution under section
770 if the defendant “is no more than 4 years older than the
victim,” but that is an affirmative defense, not an element of
the crime. Del. Code Ann. tit. 11, § 762. The sentencing
court could not have concluded that Gonzalez was convicted
of one of the elements of the generic offense of “statutory
rape,” so Gonzalez was not convicted of such a crime.

    There is no need to determine whether section 770 is
divisible, because Gonzalez could not have been convicted of
either a forcible sex offense or statutory rape under the
Sentencing Guidelines, and thus did not commit a crime of
violence under either the categorical or modified categorical
approach.

    Our recent decisions in Caceres-Olla and Gomez clearly
foreclose the government’s arguments. Instead of looking to
those decisions, which provide the “best and narrowest
ground available,” the majority improperly answers an
unnecessary question. See Air Courier Conf. of Am. v. Am.
       UNITED STATES V. GONZALEZ-MONTERROSO                 23

Postal Workers Union AFL-CIO, 498 U.S. 517, 531 (1991)
(Stevens, J., concurring). On the basis of our recent
precedent, rather than unnecessary resolution of the reserved
issue stated in Descamps, I concur with the majority result
that the district court erred in applying the 16-level crime of
violence enhancement, and agree that we must reverse and
remand for re-sentencing.
