                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 04-30009
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-02-00246-ALA
LEO ASBERRY,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                for the District of Oregon
         Ann L. Aiken, District Judge, Presiding

                 Argued and Submitted
          September 17, 2004—Portland, Oregon

                  Filed January 11, 2005

     Before: J. Clifford Wallace, Ronald M. Gould, and
                Carlos T. Bea, Circuit Judges.

                Opinion by Judge Gould;
                Concurrence by Judge Bea




                            361
364              UNITED STATES v. ASBERRY


                       COUNSEL

Nancy Bergeson, Assistant Federal Public Defender, for the
defendant-appellant.

Fredric N. Weinhouse, Assistant United States Attorney, for
the plaintiff-appellee.
                    UNITED STATES v. ASBERRY                     365
                            OPINION

GOULD, Circuit Judge:

   Leo Asberry, Jr. appeals his sentence for possessing ammu-
nition as a felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
On appeal, Asberry challenges district court rulings that: 1) an
Oregon conviction for Rape in the Third Degree constituted
a “crime of violence” under United States Sentencing Guide-
lines section 4B1.2(a);1 2) the Rape in the Third Degree con-
viction and a Delivery of Marijuana for Consideration
conviction were not related under Guidelines section
4A1.2(a)(2); and 3) discretionary downward departure from
the Sentencing Guidelines was neither allowed nor warranted
under Guidelines section 5K2.0. We have jurisdiction over the
appeal of the first two rulings pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). We do not have jurisdiction over the
appeal of the third ruling. We affirm in part and dismiss in
part.

                                 I

   On December 15, 2003, the district court sentenced
Asberry to seventy-seven months in prison and three years
supervised release for violating 18 U.S.C. section 922(g)(1),
which prohibits felons from possessing firearms or ammuni-
tion. In sentencing Asberry, the district court considered three
1993 Oregon offenses including a November 4, 1993 convic-
tion for Rape in the Third Degree, a November 4, 1993 con-
viction for Delivery of Marijuana for Consideration, and a
November 9, 1993 conviction for Delivery of Marijuana for
Consideration.

  The Rape in the Third Degree conviction arose from con-
  1
   Asberry was sentenced under Guidelines section 2K2.1, which incor-
porates by reference the definition of “crime of violence” in section
4B1.2(a). U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.5 (2003).
366                 UNITED STATES v. ASBERRY
duct that occurred in February 1993. Asberry, then twenty-
one, engaged in a sexual relationship with a fifteen-year-old
female. Asberry was arrested on July 1, 1993 and charged
with violating Oregon Revised Statute section 163.355, which
reads: “A person commits the crime of rape in the third
degree if the person has sexual intercourse with another per-
son under 16 years of age.” Or. Rev. Stat. § 163.355 (2003).

   Asberry pled guilty. His plea stated: “I wish to plead
GUILTY to the charge(s) of RAPE III [and] DELIVERY OF
MARIJUANA . . . . on the basis of HAVING HAD SEXUAL
RELATIONS WITH [a minor] [and] HAVING BEEN PRES-
ENT WHEN MARIJUANA WAS DELIVERED BY THIRD
PERSON.” On the basis of his plea agreement, the Oregon
state court found Asberry guilty of Rape in the Third Degree.
His plea agreement also provided the foundation for the
November 4, 1993 conviction for Delivery of Marijuana for
Consideration, which arose from a sale to undercover agents
in Union County, Oregon on April 7, 1993. Asberry was
arrested for this drug offense on July 16, 1993. The Oregon
court entered consecutive sentences for the rape and the drug
charge in a single hearing. It used two separate sentencing
documents and case numbers and did not issue a formal con-
solidation order.

   At Asberry’s sentencing for violating 18 U.S.C.
§ 922(g)(1), the district court ruled that Rape in the Third
Degree was a “crime of violence” under Guidelines section
4B1.2(a), and that Delivery of Marijuana for Consideration
was a “controlled substance offense” under section 4B1.2(b).
The court further ruled that the November 9 and November 4
marijuana convictions were not related under section
4A1.2(a)(2),2 nor was the rape conviction related to the
November 4 marijuana conviction.
  2
   The November 9, 1993 Delivery of Marijuana for Consideration con-
viction resulted from an arrest on May 19, 1993.
                       UNITED STATES v. ASBERRY                         367
   Counsel for Asberry requested a downward departure from
the Guidelines. The district court denied the motion, stating,
“I don’t think this record warrants it, and I don’t believe . . .
I have the authority regardless.” This appeal followed.

                                     II

   We first consider whether the district court erred in holding
that a violation of Oregon Revised Statute section 163.355 is
a “crime of violence” under United States Sentencing Guide-
lines sections 2K2.1(a)(2) and 4B1.2(a).3

   [1] We take a categorical approach to determining whether
a state offense is a “crime of violence.” Taylor v. United
States, 495 U.S. 575, 600-02 (1990); see also U.S. Sentencing
Guidelines Manual § 4B1.2, cmt. n.1 (requiring consideration
of “the conduct set forth (i.e., expressly charged) in the count
of which the defendant was convicted”). Under the categori-
cal approach, we consider only the statutory elements of the
offense to determine whether it meets the definition of “crime
of violence” in the Guidelines. Taylor, 495 U.S. at 600-02.4
Oregon Revised Statute section 163.355, in combination with
section 163.345, makes it a crime for a perpetrator who is
more than three years older than his or her victim to have
intercourse with a person who is less than sixteen years of
age.
  3
     We review de novo a district court’s interpretation of the Sentencing
Guidelines. United States v. Medina-Maella, 351 F.3d 944, 946 (9th Cir.
2003); United States v. Riley, 183 F.3d 1155, 1157 (9th Cir. 1999).
   4
     If the statutory elements of an offense do not satisfy the definition of
“crime of violence,” we then apply a modified categorical approach, under
which we “may consider the statutory definition of the crime, any conduct
charged in the indictment or information, the defendant’s guilty plea or
plea agreement, and any jury instructions.” United States v. Wood, 52 F.3d
272, 274-75 (9th Cir. 1995), cert. denied, 516 U.S. 881 (1995); see also
United States v. Franklin, 235 F.3d 1165, 1169-73 (9th Cir. 2000).
Because we conclude that Rape in the Third Degree, as defined by Oregon
Revised Statute section 163.355, is a “crime of violence,” we need not
employ that approach here.
368                UNITED STATES v. ASBERRY
                               A

   [2] In United States v. Granbois, we held that “sexual con-
tact with a child who has attained the age of 12 years but has
not attained the age of 16 years and is at least four years
younger than the perpetrator” is a “crime of violence” under
Sentencing Guidelines sections 4B1.1 and 4B1.2. 376 F.3d
993, 995-96 (9th Cir. 2004). We conclude that this case is
materially indistinguishable from Granbois. Like the defen-
dant in Granbois, Asberry was convicted of having sexual
contact with a girl less than sixteen years of age and several
years his junior. The legal conclusion of Granbois controls,
and we hold that a violation of Oregon Revised Statute sec-
tion 163.355 is a “crime of violence” under Guidelines section
4B1.2.

                               B

   [3] A consideration of Granbois and the concerns underly-
ing it illuminate the issue before us. In Granbois, we held that
a conviction for statutory rape was “sexual abuse of a minor”
and, therefore, a per se “crime of violence” under the Sentenc-
ing Guidelines. 376 F.3d at 996. Although Guidelines section
4B1.2 does not explicitly list “sexual abuse of a minor” or
“statutory rape” as a per se “crime of violence,” the commen-
tary to Guidelines section 2L1.2 mentions that these offenses
meet the definition of “crime of violence” under section
2L1.2. In Granbois, we held in the context of interpreting
“sexual abuse of a minor” that “there is no indication that
[‘crime of violence’] is intended to mean something different”
in section 4B1.2 than it does in section 2L1.2. 376 F.3d at 996
(quoting United States v. Pereira-Salmeron, 337 F.3d 1148,
1153 (9th Cir. 2003)); see also United States v. Melton, 344
F.3d 1021, 1027 (9th Cir. 2003).

   The evolution of the language of Guidelines section 2L1.2
supports this conclusion. Prior to 2001, sentencing under sec-
tion 2L1.2 also used the definition of “crime of violence” in
                      UNITED STATES v. ASBERRY                         369
section 4B1.2, which included “forcible sex offenses” among
the per se “crimes of violence” enumerated in the commen-
tary. U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n.1
(2000).5 In 2001, the Sentencing Commission completed a
comprehensive revision of section 2L1.2 and, among other
changes, added a full definition of “crime of violence” with
the parenthetical “(including sexual abuse of a child)” appear-
ing after the term “forcible sex offenses” in the commentary.
U.S. Sentencing Guidelines Manual app. C, amend. 632, 216-
19 (2003); U.S. Sentencing Guidelines Manual § 2L1.2, cmt.
n.1(B)(ii)(II) (2002). In 2003, the Sentencing Commission
again amended the commentary to section 2L1.2 to list specif-
ically “forcible sex offenses, statutory rape, [and] sexual
abuse of a minor.” The Commission stated that the 2003
amendment “clarifies the meaning of the term ‘crime of vio-
lence’ . . . . [because] [t]he previous definition often led to
confusion over whether the specified offenses listed in that
definition, particularly sexual abuse of a minor . . . also had
to include as an element of the offense ‘the use, attempted
use, or threatened use of physical force against the person of
another.’ ” U.S. Sentencing Guidelines Manual app. C,
amend. 658, Reason for Amendment, 397-402 (2003)
(emphasis added).

   Therefore, the Commission has indicated that these amend-
ments to section 2L1.2 merely clarified the meaning of the
term “crime of violence” and provided elaboration regarding
the offenses that are included within this category; the amend-
ments did not change the definition of “crime of violence”
that section 2L1.2 originally borrowed from section 4B1.2.
These indications of the Commission’s intent control interpre-
tations of section 2L1.2, United States v. Garcia-Cruz, 40
F.3d 986, 990 (9th Cir. 1994), and provide guidance to us in
our efforts to construe the identical term “crime of violence”
  5
   Commentary to the Guidelines binds us in interpreting their provisions
unless it violates the Constitution or a federal statute, or is inconsistent
with the Guidelines. Stinson v. United States, 508 U.S. 36, 38 (1993).
370                UNITED STATES v. ASBERRY
in section 4B1.2. See United States v. Moreno-Cisneros, 319
F.3d 456, 458-59 (9th Cir. 2003) (holding that an amendment
to one section of the Guidelines may clarify similar language
in an analogous provision of the Guidelines); see also Wil-
liams v. United States, 503 U.S. 193, 200-01 (1992) (describ-
ing how a court reaches a correct interpretation of the
Guidelines).

                               C

   Even if statutory rape were not a per se “crime of vio-
lence,” it would fall within the terms of Guidelines section
4B1.2 because that section includes conduct that “by its
nature, presented a serious potential risk of physical injury to
another.” U.S. Sentencing Guidelines Manual § 4B1.2, cmt.
n.1 (2003). Under this catch-all clause, the government must
demonstrate: 1) commission of a felony; 2) that posed a seri-
ous potential risk; 3) of some form of physical injury to
another.

   To conclude that an offense falls within the definition of
“crime of violence” in section 4B1.2, we need not determine
that the charged conduct poses a certain or probable risk of
physical injury, or that the victim suffered actual physical
harm. It is sufficient that the nature of the conduct described
in the statute of conviction generally poses a serious potential
risk of any form of physical injury to the victim. Riley, 183
F.3d at 1159; Wood, 52 F.3d at 275-76.

   Sexual intercourse with adults poses serious potential risks
of physical injury to adolescents of ages fifteen and younger.
Both sexually transmitted disease and the physical risks of
pregnancy among adolescent females are “injuries” as the
term is defined in common and legal usage. See Oxford
English Dictionary (2d ed. 1989) (“Hurt or loss caused to or
sustained by a person or thing; harm, detriment, damage.”);
Black’s Law Dictionary (6th ed. 1990) (defining “bodily inju-
ry” as “[p]hysical pain, illness or any impairment of physical
                      UNITED STATES v. ASBERRY                         371
condition” and “injury to the body . . . including . . . injury
resulting from rape or attempted rape”); see also Pereira-
Salmeron, 337 F.3d at 1154 n.4; Riley, 183 F.3d at 1159
(“[R]ape also subjects the victim to the physical risks associ-
ated with sexually transmitted diseases and pregnancy. As
such, it creates a serious potential risk of physical injury and
is therefore a crime of violence under U.S.S.G.
§ 4B1.2(a)(2).”) (internal citation omitted).

   Asberry argues that the logical conclusion of our analysis
would result in much consensual sexual intercourse being
considered a “crime of violence” under section 4B1.2 and that
our reasoning is undermined by state marriage laws that allow
persons under sixteen years of age to wed. We disagree.
These activities are not crimes, let alone felonies. They are
necessarily excluded from the definition of “crime of vio-
lence” under section 4B1.2, regardless of whether they pose
a “serious potential risk of physical injury to another.” It is
perhaps a logical fallacy to equate “legal” with “safe” in all
cases. Some legal activities, whether high-risk sexual behav-
ior between consenting adults or marital relations between
very young adolescents, may pose a “serious potential risk of
physical injury” to persons who choose to engage in them.
But, if such risks exist, the legislative branch may have deter-
mined that competing values, such as individual autonomy or
the promotion of marriage, outweigh the hazards, and that
these activities will not be subjects for criminal prohibition.6
  6
    Also, the conduct prohibited by section 163.355 may create a greater
risk of physical injury than the activities to which Asberry compares statu-
tory rape. Adults engaging in consensual sexual intercourse have the
capacity to appreciate, prevent and deal with the consequences of any
potential risk of physical injury that may arise from their conduct. The
involvement of the state in legal marriage provides similar protection for
young spouses: teenagers are less likely to be coerced into marriage than
into sexual intercourse with an adult, and marriage itself might mitigate
the risk of contracting sexually transmitted disease. In contrast, statutory
rape is a serious crime, in part to protect children and teenagers, who are
legally incapable of consent, from the serious potential risk of physical
injury inherent in sexual relations between youths and adults.
372                   UNITED STATES v. ASBERRY
In interpreting the phrase “crime of violence,” the Sentencing
Commission directs us to determine whether the defendant’s
conduct was criminal, and to examine whether the conduct
posed a “serious potential risk of physical injury to another.”
It is certain that some legal activities create the possibility of
physical injury. But our duty in this context is not to comment
on the prudence of the criminal code or family law: under
Guidelines section 4B1.2, after we determine that the conduct
was criminal in nature and “presented a serious potential risk
of physical injury to another” our inquiry is at an end.7

   [4] In light of our precedent in Granbois, indications that
the Sentencing Commission intended the term “crime of vio-
lence” in the Guidelines to include statutory rape, and evi-
dence that sexual intercourse between adults and adolescents
ages fifteen and younger creates a “serious potential risk of
physical injury,” we hold that a violation of Oregon Revised
Statute section 163.355 is a “crime of violence” for the pur-
poses of sentencing under Guidelines section 4B1.2.

                                   III

  We next consider whether the district court erred in deter-
mining that Asberry’s November 4, 1993 Rape in the Third
Degree conviction and his November 4, 1993 Delivery of
Marijuana for Consideration conviction are unrelated under
Sentencing Guidelines section 4A1.2.8
   7
     This conclusion accords with our prior case law. We have recognized
that sexual contact between an adult and a child or young teenager poses
a “serious potential risk of physical injury” to the youth under Guidelines
section 4B1.2. See Wood, 52 F.3d at 275; see also Melton, 344 F.3d at
1027 (“[S]exual contact with a minor inherently presents a risk of force
sufficient to characterize the misconduct as a ‘crime of violence.’ ”);
Pereira-Salmeron, 337 F.3d at 1153-54 (stating that under the Guidelines,
including section 4B1.2, “a sexual offense against a minor may constitute
a crime of violence for sentencing purposes even though an element of
force — actual, attempted, or threatened — is not required”).
   8
     We review with due deference a district court’s determination that two
crimes were not related or consolidated for sentencing. Buford v. United
States, 532 U.S. 59, 64-66 (2001).
                   UNITED STATES v. ASBERRY                     373
  Comment 3 to Guideline section 4A1.2 lists the criteria for
determining whether a sentence is “related” for the purpose of
computing a defendant’s criminal history:

    Prior sentences are not considered related if they
    were for offenses that were separated by an interven-
    ing arrest (i.e., the defendant is arrested for the first
    offense prior to committing the second offense).
    Otherwise, prior sentences are considered related if
    they resulted from offenses that (A) occurred on the
    same occasion, (B) were part of a single common
    scheme or plan, or (C) were consolidated for trial or
    sentencing.

U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n.3 (2003).

   [5] The structure of Comment 3 mandates a two-step
approach. We first look to determine whether the sentences
“were for offenses that were separated by an intervening
arrest.” Id. If an intervening arrest did separate the offenses,
our inquiry is over: the offenses are unrelated for the purposes
of the Guidelines. United States v. Gallegos-Gonzalez, 3 F.3d
325, 328 (9th Cir. 1993) (“[S]entences for offenses separated
by an intervening arrest are always unrelated under section
4A1.2 as amended in 1991, regardless whether the cases were
consolidated for sentencing.”). If there was no intervening
arrest we consider whether the sentences nevertheless “re-
sulted from offenses that (A) occurred on the same occasion,
(B) were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing.” U.S. Sentencing Guide-
lines Manual § 4A1.2, cmt. n.3; Gallegos-Gonzalez, 3 F.3d at
326-27.

  [6] Applying this framework here, we first note that the
conduct underlying the Rape in the Third Degree conviction
and the conduct supporting the Delivery of Marijuana for
Consideration conviction were not separated by an interven-
ing arrest. Asberry committed the statutory rape in February
374               UNITED STATES v. ASBERRY
1993, sold marijuana to an undercover agent on April 7, 1993,
was arrested for Rape in the Third Degree on July 1, 1993,
and was arrested for Delivery of Marijuana for Consideration
on July 16, 1993. Because both offenses predate both arrests,
neither arrest can be considered intervening; we address the
second prong of the inquiry under section 4A1.2.

   Asberry concedes that his offenses did not occur on the
same occasion and were not part of a common scheme or
plan. Instead, he argues that his convictions were “consoli-
dated for trial or sentencing” because the state court entered
both sentences in a single proceeding. In determining whether
a district court erred in determining that convictions were
“consolidated for trial or sentencing,” we consider factors
including whether sentencing occurred 1) on the same day, 2)
in the same court, 3) for the same or similar offenses, 4) pur-
suant to a single plea agreement, 5) under the same docket
number, 6) after a formal consolidation order, and 7) under
circumstances that resulted in concurrent sentences. Compare
United States v. Chapnick, 963 F.2d 224, 228 (9th Cir. 1992),
superceded in nonpertinent part by U.S.S.G. § 4A1.2, cmt.
n.3, overruled in nonpertinent part by Buford, 532 U.S. at 64-
66, with United States v. Davis, 922 F.2d 1385, 1390-91 (9th
Cir. 1991) superceded in nonpertinent part by U.S.S.G.
§ 4A1.2, cmt. n.3, overruled in nonpertinent part by Buford,
532 U.S. at 64-66.

   The reasons for this rule and the directive to consider such
factors are not difficult to discern: the Sentencing Guidelines
attempt to reflect the seriousness of a defendant’s criminal
history, and treating as unrelated offenses that a state court
viewed as appropriate for consolidation for trial or sentencing
might overstate the seriousness of the defendant’s criminal
conduct. See 28 U.S.C. § 994(i) (2000); U.S. Sentencing
Guidelines Manual § 4A1.2, cmt. n.3 (2003). In balancing the
factors we consider important in determining whether
offenses were “consolidated for trial or sentencing,” our ulti-
mate goal remains finding a sentence that accurately reflects
                   UNITED STATES v. ASBERRY                   375
both the seriousness of the underlying federal offense and the
extent and nature of the defendant’s criminal past.

   [7] Here, although Asberry was sentenced for Delivery of
Marijuana for Consideration and Rape in the Third Degree in
the same court proceeding pursuant to a single plea agree-
ment, the offenses were not similar in nature. Also, the sen-
tencing court used different docket numbers for the two
offenses, did not issue a formal consolidation order and
imposed consecutive sentences. We hold that the district court
did not err in holding that Asberry’s November 4, 1993 con-
victions for Delivery of Marijuana for Consideration and
Rape in the Third Degree were not “consolidated for trial or
sentencing” and were, therefore, unrelated under Guidelines
section 4A1.2.

                               IV

   We finally address Asberry’s contention that the district
court committed reversible error in declining to depart from
the Sentencing Guidelines.

   [8] In the Ninth Circuit, discretionary decisions of a district
court not to depart from the Sentencing Guidelines are not
subject to appellate review. United States v. Morales, 898
F.2d 99, 102 (9th Cir. 1990). We will, however, review a dis-
trict court’s decision not to depart if it erroneously believed
that it lacked discretion to do so. United States v. Brown, 985
F.2d 478, 481 (9th Cir. 1993).

   [9] Asberry argues that the district court’s statement, “I
don’t think this record warrants it, and I don’t believe . . . I
have the authority regardless,” brings his case within the latter
category. We disagree. When a district court indicates both
that it lacks discretion to depart and that, if it had discretion,
it would nevertheless decline to exercise it, we lack jurisdic-
tion to review its decision. United States v. Williams, 898 F.2d
1400, 1403-04 (9th Cir. 1990) (holding that the appellate
376                UNITED STATES v. ASBERRY
court lacked jurisdiction when “the district court concluded,
‘I do not find that I have the authority [to depart] in this case,
nor do I find facts which would lead me to believe I should
depart.’ ”). This portion of the appeal is, accordingly, dis-
missed.

                                V

   Asberry, raising a further issue, requests that we defer deci-
sion of this case pending the decisions of the United States
Supreme Court in United States v. Booker and United States
v. Fanfan. We decline to do so. Although this case involves
a sentence imposed pursuant to the Guidelines, the district
court did not enhance the sentence on the basis of factors,
other than prior convictions, not found by a jury beyond a rea-
sonable doubt. Deferring decision of this case is not war-
ranted. United States v. Quintana-Quintana, 383 F.3d 1052,
1052-53 (9th Cir. 2004).

  AFFIRMED IN PART AND DISMISSED IN PART.



BEA, Circuit Judge, concurring:

   I concur in all sections of Judge Gould’s opinion except as
to Sections II.B and II.C. I write separately, however, because
although United States v. Granbois, 376 F.3d 993 (9th Cir.
2004), controls here, I see it as wrongly decided, notwith-
standing Judge Gould’s faithful attempts to bolster its reason-
ing.

  The primary issue in this appeal is whether Asberry’s prior
conviction for statutory rape is a “crime of violence” as
defined by U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2,
which governs Asberry’s sentence enhancement. Section
4B1.2(a) provides:
                     UNITED STATES v. ASBERRY                       377
      [t]he term “crime of violence” means any offense
      under federal or state law, punishable by imprison-
      ment for a term exceeding one year, that — (1) has
      as an element the use, attempted use, or threatened
      use of physical force against the person of another,
      or (2) is burglary of a dwelling, arson, or extortion,
      involves use of explosives, or otherwise involves
      conduct that presents a serious potential risk of phys-
      ical injury to another.

  The commentary to section 4B1.2 further explains a “crime
of violence” includes “murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit, and burglary of a
dwelling.” U.S.S.G. § 4B1.2, cmt. n.1 (emphasis added).

   U.S.S.G. § 2L1.2, which governs sentence enhancements
for an alien’s unlawful reentry into the United States, pro-
vides:

      “[c]rime of violence” means any of the following:
      murder, manslaughter, kidnapping, aggravated
      assault, forcible sex offenses, statutory rape, sexual
      abuse of a minor, robbery, arson, extortion, extor-
      tionate extension of credit, burglary of a dwelling, or
      any 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) (2003) (emphasis added).1

  In Granbois, we held the defendant’s prior conviction for
  1
   The 2003 version of U.S.S.G. § 2L1.2 became effective November 5,
2003, before entry of Asberry’s judgment on December 23, 2003. The pre-
vious version, discussed below in both United States v. Granbois, 376
F.3d 993 (9th Cir. 2004), and United States v. Pereira-Salmeron, 337 F.3d
1148 (9th Cir. 2003), did not include the “statutory rape” term.
378                   UNITED STATES v. ASBERRY
engaging in sexual contact with a minor in violation of 18
U.S.C. § 2244(a)(3)2 was a “crime of violence” under section
4B1.2. 376 F.3d at 996. We did so by incorporating the
“crime of violence” definition of section 2L1.2 into section
4B1.2; since section 2L1.2 classifies “sexual abuse of a
minor” as a “crime of violence,” we held engaging in sexual
contact with a minor was a “crime of violence” for purposes
of section 4B1.2. Id.

  Granbois observed there was a difference between the
“crime of violence” definitions in sections 2L1.2 and 4B1.2,
but held it was immaterial:

      We acknowledge that different words are used in
      some other definitions of “crime of violence” in the
      Guidelines and its notes. It would perhaps be clearer
      if the Commission used a more consistent definition.
      But there is no indication that the term is intended to
      mean something different for this provision than it
      does elsewhere.

Id. (quoting United States v. Pereira-Salmeron, 337 F.3d
1148, 1153 (9th Cir. 2003)).

   That language was dicta in Pereira-Salmeron because there
we considered the section 2L1.2 “crime of violence” defini-
tion which contains the “sexual abuse of a minor” term. 337
F.3d at 1153. But Granbois considered the section 4B1.2
“crime of violence” definition, which does not contain the
“sexual abuse of a minor” term.3 376 F.3d at 996. Granbois
relied on Pereira-Salmeron’s dicta to incorporate the section
2L1.2 “crime of violence” definition into the section 4B1.2
  2
     Under 18 U.S.C. § 2244(a)(3), it is a crime for a person to have sexual
contact with another person who is between the ages of 12 and 16 and is
at least four years younger than the perpetrator.
   3
     Nor does U.S.S.G. § 4B1.2 contain the “statutory rape” term, while
U.S.S.G. § 2L1.2 does.
                       UNITED STATES v. ASBERRY                          379
definition. Id. Thus, the language is part of Granbois’s hold-
ing and is binding upon us. See Brand X Internet Serv. v.
FCC, 345 F.3d 1120, 1130 (9th Cir. 2003) (this court’s three-
judge panels are bound by the holdings of earlier three-judge
panels).

   Here, Asberry has a prior conviction under Oregon’s “Rape
in the Third Degree” statute, which defines as a felony “sex-
ual intercourse with another person under 16 years of age”
when the perpetrator was at least three years older than the
victim. OR. REV. STAT. §§ 163.345, 163.355 (2003). Applying
Granbois, we look to the “crime of violence” definitions in
either sections 4B1.2 or 2L1.2 to determine whether the con-
viction is a “crime of violence.” See Granbois, 376 F.3d at
996. Since section 2L1.2 defines “crime of violence” to
include “statutory rape” and “sexual abuse of a minor,”
Asberry’s prior conviction of statutory rape is a “crime of vio-
lence” under section 4B1.2. Cf. id. (a prior conviction for sex-
ual contact with another person between the ages of 12 and
16 and at least four years younger than the perpetrator is a
“crime of violence” under section 4B1.2).

   Notwithstanding Granbois’s binding effect here, it was
wrongly decided for two reasons. First, in holding there is no
difference between the “crime of violence” definitions in sec-
tions 4B1.2 and 2L1.2, Granbois ignores the inclusion of the
“statutory rape” and “sexual abuse of a minor” terms in sec-
tion 2L1.2, and the exclusion of those terms in section 4B1.2.
Given such clear differences in text, to say the two sections
mean the same is an approach contrary to basic principles of
statutory construction. See Sosa v. Alvarez-Machain, 124
S. Ct. 2739, 2754 (2004) (“when the legislature uses certain
language in one part of the statute and different language in
another, the court assumes different meanings were intended.”).4
  4
    Asberry argues the panel should not follow Granbois because it con-
flicts with principles of statutory construction. Principles of statutory con-
struction, however, are not mandatory rules, but only nonconclusive
interpretative aids. United States v. Bert, 292 F.3d 649, 652 (9th Cir.
2002).
380                  UNITED STATES v. ASBERRY
The intent of the U.S. Sentencing Guidelines Commission
(“Commission”) in establishing sentencing criteria for unlaw-
ful reentry into the United States is likely different than for
sentencing criteria for being a felon in possession of a fire-
arm. See U.S. Sentencing Guidelines Manual app. C, vol. II
at 401-02 (stating Amendment 658 changed the “crime of vio-
lence” definition for section 2L1.2 by adding “statutory rape”
and “sexual abuse of a minor” so that “[t]he amended defini-
tion makes clear that the enumerated offenses are always clas-
sified as ‘crimes of violence,’ regardless of whether the prior
offense expressly has as an element the use, attempted use, or
threatened use of physical force against the person of anoth-
er.”). Indeed, our sister circuits have noted the Guidelines
have different “crime of violence” definitions and have called
on the Commission for clarification. See United States v.
Shannon, 110 F.3d 382, 389 (7th Cir. 1997) (en banc); United
States v. Rutherford, 54 F.3d 370, 377 (7th Cir. 1995); cf. See
United States v. Charles, 301 F.3d 309, 312 (5th Cir. 2002)
(en banc) (overruling prior cases which conflated the section
4B1.2(a)(2) “crime of violence” definition (i.e., “conduct that
presents a serious potential risk of physical injury to another”)
with the “crime of violence” definition from 18 U.S.C. § 16
(i.e., a crime that presents “a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense”)).

   Second, Granbois’s reliance on Pereira-Salmeron was mis-
placed because Pereira-Salmeron considered the broader and
more inclusive “crime of violence” definition under section
2L1.2, a definition different from that of section 4B1.2 at
issue in Granbois. See Pereira-Salmeron, 337 F.3d at 1153.
Pereira-Salmeron’s observation that there is no difference
between the two “crime of violence” definitions was dicta,
and incorrect dicta at that. See id.5
  5
  During oral argument, Asberry also argued the panel should not follow
Granbois because it conflicts with Stinson v. United States, 508 U.S. 36
                       UNITED STATES v. ASBERRY                         381
   With respect, Judge Gould’s defense of Granbois in Sec-
tion II.B of his opinion is beside the point. Section II.B
observes that before 2001, the “crime of violence” definitions
in sections 2L1.2 and 4B1.2 were, in relevant part, the same
(e.g., both sections included the term “forcible sex offenses,”
among others). Future amendments to section 2L1.2, how-
ever, diverged from section 4B1.2 (e.g., section 2L1.2 was
amended to include “sexual abuse of a minor” and “statutory
rape,” while section 4B1.2 still only included, in relevant part,
“forcible sex offenses”). The Commission stated in commen-
tary the amendment to section 2L1.2:

     clarifies the meaning of the term “crime of violence”
     . . . [because] [t]he previous definition often led to
     confusion over whether the specified offenses listed
     in that definition, particularly sexual abuse of a
     minor . . . also had to include as an element of the
     offense “the use, attempted use, or threatened use of
     physical force against the person of another.”

U.S. SENTENCING GUIDELINES MANUAL app. C, vol. II at 401-
02.

   Judge Gould’s Section II.B thus reasons the “amendments
to section 2L1.2 merely clarified the meaning of the term
‘crime of violence’ and provided elaboration regarding the
offenses that are included within this category; the amend-
ments did not change the definition of ‘crime of violence’ that
section 2L1.2 originally borrowed from section 4B1.2.”
Although the amendment “clarified” the “crime of violence”

(1993), which held the commentary to the Guidelines “is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.” Id. at 38. Granbois
does not conflict with Stinson; the court in Granbois did not disregard the
commentary as the court of appeals did in Stinson, but instead interpreted
the commentary by incorporating one “crime of violence” definition into
a similar one.
382                UNITED STATES v. ASBERRY
definition as to section 2L1.2, it did not clarify the “crime of
violence” definition as to section 4B1.2. The Commission has
amended the commentary to section 4B1.2 twice since 2001,
and has not seen fit to include the terms “sexual abuse of a
minor” or “statutory rape” within the commentary to section
4B1.2 by either of those amendments. The Commission has,
however, amended the commentary to section 2L1.2, includ-
ing the terms “sexual abuse of a minor” and “statutory rape”
under that section’s definition of “crime of violence.”
Whether those additions were a clarification to the term “forc-
ible sex offenses” (shared by both sections 2L1.2 and 4B1.2),
or were a more substantive change, is irrelevant here. Until
the Commission either amends or “clarifies” the language in
section 4B1.2, we should apply the text found within section
4B1.2, which governs Asberry’s sentence enhancement, not
the text found within section 2L1.2, which does not so gov-
ern. It is the role of the Commission, not the courts, to issue
amendments to the U.S. Sentencing Guidelines. See Williams
v. United States, 503 U.S. 193, 200-01 (1992).

   Nevertheless, because Granbois is controlling here, we are
bound by it. See Brand X Internet Serv., 345 F.3d at 1130.
However, if we had the opportunity to reconsider Granbois as
an en banc panel, I would conclude that the record here does
not support the conclusion that non-forcible statutory rape
between a 21-year-old male and a 15-year-old female pre-
sented a “serious potential risk of physical injury to another.”
See U.S.S.G. § 4B1.2. Indeed, the government failed to show
the acts leading to the defendant’s prior conviction were more
likely than not to present a “serious potential risk of physical
injury to another.” See Shannon, 110 F.3d at 385-88 (the dis-
trict court found the defendant’s prior felony conviction for
statutory rape, defined as “sexual contact or sexual inter-
course with a person who has not attained the age of 16,” was
a crime of violence because it presented a “serious potential
risk of physical injury to another”; the court of appeals
affirmed, relying on medical studies detailing risks of injuries
to young girls engaging in intercourse and reasoning a 13-
                      UNITED STATES v. ASBERRY                         383
year-old cannot appreciate the “disease and fertility risks of
intercourse,” and thus the risks and complications of an invol-
untary pregnancy and an ensuing “quasi-involuntary” abortion
were sufficient to present a serious risk of physical injury to
the victim); see also United States v. Thomas, 159 F.3d 296,
299 (7th Cir. 1998) (holding the government did not present
sufficient evidence to show pregnancy, by itself, is an injury
when the statutory rape victim was 16 years old, and distin-
guishing Shannon because the risk of sex for the 13-year-old
victim there was much greater than the risk to a 16-year-old).6
Here, the government failed to meet its burden by not provid-
ing evidence that pregnancy itself, the risks and complications
of pregnancy, or the risks of sexually transmitted diseases,
presented a “serious potential risk of physical injury” to a 15-
year-old victim.7 Accordingly, in the absence of Granbois, I
would hold a prior conviction for non-forcible statutory rape
  6
     Both Shannon and Thomas are consistent with this Court’s past deci-
sions (except for Granbois). Before Granbois, the issue whether non-
forcible statutory rape is a “crime of violence” under section 4B1.2 was
an issue of first impression. United States v. Riley, 183 F.3d 1155, 1160
n.11 (9th Cir. 1999). Riley did state “the physical risks associated with
sexually transmitted diseases and pregnancy” are possible risks of injury
arising from rape, but that observation was only a factor in the holding and
would not necessarily compel the conclusion that non-forcible statutory
rape is a “crime of violence.” Id. at 1159; cf. United States v. Carter, 266
F.3d 1089, 1090 (9th Cir. 2001) (holding a prior conviction for transporta-
tion of a minor with intent to turn the minor into a prostitute presents a
“serious potential risk of physical injury to another” because the minor
may contract a sexually transmitted disease).
   7
     There was no medical evidence adduced by the government to show
this, or any other, 15-year-old victim of statutory rape would be exposed
to any greater risk of pregnancy than an adult woman under the same or
similar circumstances. For instance, there was no evidence whether
Asberry, his victim, or both, used any contraceptive devices, or if so why
such devices would be less effective given their ages, than if they were
older. Nor did the government present any evidence that intercourse
between this or any other 21-year-old male and a 15-year-old female
creates a greater risk of sexually transmitted disease than intercourse
between two adults. For instance, there was no evidence as to Asberry’s
health at the time of the acts which led to the earlier conviction.
384                UNITED STATES v. ASBERRY
between a 21-year-old male and a 15-year-old female, in the
absence of evidence the statutory rape presented a “serious
potential risk of physical injury” to the victim, is not a “crime
of violence” under section 4B1.2.

   For the reasons expressed above, I separately concur in the
judgment and all sections of Judge Gould’s opinion except as
to Sections II.B and II.C.
