                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 09 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10253

              Plaintiff - Appellee,              D.C. No. 4:13-cr-01354-JGZ-JR-1

 v.
                                                 MEMORANDUM*
FILIBERTO HERNANDEZ-GARCIA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                       Argued and Submitted April 17, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.

      Defendant-Appellant Filiberto Hernandez-Garcia, a citizen of Mexico, pled

guilty to one count of re-entry after deportation in violation of 8 U.S.C. §§ 1326(a)

and (b)(1). At sentencing, the district court imposed a 16-level enhancement based

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
on Hernandez-Garcia’s 2004 Wisconsin state conviction as a party to the crime of

third-degree sexual assault in violation of Wis. Stat. § 940.225(3), finding that it

was a forcible sex offense, and therefore categorically a crime of violence. See

U.S.S.G. § 2L1.2(b)(1)(A). Hernandez-Garcia argues on appeal that the district

court erred in finding that his prior conviction was categorically a crime of

violence. He contends the Wisconsin statute is broader than the generic definition

of forcible sex offense because it allows lack of consent to be based on the age of

the victim.

      The Sentencing Guidelines, and our case law, recognize that a forcible sex

offense requires “a sexual act where ‘consent to the conduct’: (1) ‘is not given’; or

(2) ‘is not legally valid, such as where consent to the conduct is involuntary,

incompetent, or coerced.’” United States v. Caceres-Olla, 738 F.3d 1051, 1054–55

(9th Cir. 2013) (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)).

      In determining whether a prior conviction is categorically a crime of

violence, we look to the elements of the crime and authoritative interpretations to

determine whether the statute has been interpreted more narrowly or broadly than

the generic definition. See United States v. Gonzalez-Monterroso, 745 F.3d 1237,

1244 n.4 (9th Cir. 2014) (“[W]hen determining the categorical reach of a state

crime, we consider not only the language of the state statute, but also the


                                           2
interpretation of that language in judicial opinions.”) (internal quotation marks

omitted).

      If a defendant demonstrates, either through statutory language or through

state court interpretations, that a statute is applied to conduct outside the generic

definition, that statute is not a categorical match. In Gonzales v. Duenas-Alvarez,

the Supreme Court reasoned:

      Moreover, in our view, to 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 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.

549 U.S. 183, 193 (2007) (emphasis added).

      Here, Hernandez-Garcia has shown that the Wisconsin courts in his own

case, and at least two others, have allowed lack of consent to be based on the age of

the victim. See State v. Harrell, 513 N.W.2d 676 (Wis. App. 1994); State v.

Thomas, 743 N.W.2d 167 (Wis. App. 2007) (table text). We have held that a state

statute which bases lack of consent solely on the victim’s age is not categorically a

forcible sex offense. See Caceras-Olla, 738 F.3d at 1056–57.



                                            3
      Hernandez-Garcia has satisfied the Supreme Court’s requirements and

shown a realistic probability that Wisconsin applies Wis. Stat. § 940.225(3) to

conduct falling outside the generic definition of forcible sex offense. The 16-level

enhancement therefore should not have been imposed because his prior conviction

was not for a categorical crime of violence.

      Sentence VACATED and REMANDED for resentencing. The parties shall

bear their own respective costs on appeal.




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