                                          NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                           ________

                          No. 10-1410
                          _________


               UNITED STATES OF AMERICA

                               v.

             RODOLFO ASCENCION-CARRERA,
                                  Appellant

                           ________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  (D.C. No. 2-09-cr-00087-001)
          District Judge: Honorable Legrome D. Davis

                            _______

           Submitted Under Third Circuit LAR 34.1(a)
                      February 14, 2011

 Before: SLOVITER, HARDIMAN, and ALDISERT, Circuit Judges

                   (Filed: February 16, 2011)

                            ______

                           OPINION
                            ______
SLOVITER, Circuit Judge.

       Rodolfo Ascencion-Carrera pled guilty to reentering the United States illegally

after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 46 months

imprisonment. Ascencion-Carrera now appeals his sentence, arguing that the District

Court plainly erred in enhancing his sentence because his prior conviction under Cal.

Penal Code § 261.5(a) (statutory rape) does not constitute a crime of violence for

purposes of the United States Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A) (2008). 1

We will affirm. 2

       Under the Sentencing Guidelines, an alien who is convicted of illegally reentering

the United States has a base offense level of eight. U.S.S.G. § 2L1.2(a). A defendant

charged with illegal reentry who has sustained a felony conviction for a “crime of



       1
         Ascencion-Carrera has abandoned his argument that the District Court plainly
erred in concluding that his statutory rape conviction constitutes an “aggravated felony”
for statutory maximum sentencing purposes in light of this court’s intervening decision in
Restrepo v. Att’y Gen., 617 F.3d 787 (3d Cir. 2010).
       2
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Where, as here, the
defendant failed to call an erroneous Guidelines calculation to the District Court’s
attention, we review for plain error. Fed. R. Crim. P. 52(b). We must find: (1) an error
was committed, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights. United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001). If all three
conditions are met, we may exercise our discretion to notice a forfeited error, but only if
“the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. With respect to this final step, we have held that we will generally
exercise our discretion to recognize a plain error in the misapplication of the Sentencing
Guidelines. Id. at 206-07 n.7.

                                             2
violence” is subject to a sixteen-level enhancement. 3 Id. § 2L1.2(b). The Application

Notes define a “crime of violence” to mean, inter alia, “statutory rape” or “sexual abuse

of a minor.” Id. § 2L1.2 cmt. n.1(B)(iii). As a preliminary matter, we agree with

Ascencion-Carrera that, to avoid redundancy, this case is properly analyzed under the

enumerated predicate of statutory rape, not sexual abuse of a minor. 4 See United States v.

Landmesser, 378 F.3d 308, 312-13 (3d Cir. 2004) (Guidelines must be interpreted so as

to avoid surplusage).

       Even if we were to find that the District Court committed error in determining that

Cal. Penal Code § 261.5 categorically qualifies as a crime of violence under the

Guidelines, the more difficult inquiry is whether any such error was plain. 5 Although the

only courts of appeals to squarely address the issue have held that § 261.5 does not

comport with the generic definition of statutory rape under the Guidelines, see United

       3
       In this case, the sixteen-level enhancement resulted in a Guidelines range of 46-
57 months, significantly higher than the otherwise applicable sentencing range.
       4
        Indeed, were we to analyze under the sexual abuse of a minor predicate,
Ascencion-Carrera’s argument for plain error might be more forceful. Apart from any
arguments regarding the age of consent, § 261.5 would likely not categorically qualify as
sexual abuse of a minor under the illegal reentry guideline because it criminalizes
nonabusive conduct, e.g., consensual sex between a person one day shy of 18 and a
person who has just turned 21. See, e.g., United States v. Lopez-Solis, 447 F.3d 1201 (9th
Cir. 2006) (Tennessee statutory rape law not categorically sexual abuse of a minor under
previous Guidelines because it proscribes sexual conduct between 17-year-old and 22-
year-old).
       5
         We assume without deciding that the statute of conviction is broader than the
generic form of the crime set forth in the federal enhancement provision because it
defines the age of consent at eighteen rather than sixteen.

                                            3
States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir. 2008) (Cal. Penal Code § 261.5(c)

not categorically a crime of violence under illegal reentry guideline); United States v.

Rodriguez-Guzman, 506 F.3d 738, 746-47 (9th Cir. 2007) (same), neither the Supreme

Court, this court, nor several other courts of appeals have decided the issue. 6 As such, we

cannot say that Ascencion-Carrera has met his burden of proving that the District Court

committed plain error. See United States v. Olano, 507 U.S. 725, 734 (1993) (error is

“plain” when it is “clear under current law”); United States v. Harris, 471 F.3d 507, 512

(3d Cir. 2006) (error not plain where neither the Supreme Court nor Third Circuit had

ruled on issue in a precedential opinion). Moreover, that this is a point upon which

reasonable minds could differ is evidenced by related opinions further undermining our

ability to find that any error was plain. See United States v. Viezcas-Soto, 562 F.3d 903,

914 (8th Cir. 2009) (Gruender, J., dissenting) (“It seems to me that a definition of

‘statutory rape’ that excludes the statutory rape laws of seventeen states, including the

most populous state in the Union [California], along with Texas [age of consent 17], New

York [17], Florida [18], and Illinois [17], cannot reasonably be classified as ‘generic.’”);

United States v. Alvarado-Hernandez, 465 F.3d 188, 189-90 (5th Cir. 2006) (holding




       6
         In United States v. Hernandez-Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006),
the Tenth Circuit held that § 261.5(c) qualifies as a crime of violence under the illegal
reentry guideline. However, there the defendant did not raise an overbreadth challenge
and the Court did not apply the categorical approach, instead deeming California
statutory rape a crime of violence simply because “statutory rape” is an enumerated
offense in the Guidelines.
                                              4
Texas statutory rape statute, setting threshold age of 17, meets generic, contemporary

definition of statutory rape triggering sentence enhancement under the Guidelines).

      Accordingly, we affirm the sentence imposed by the District Court.




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