                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 24 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10579

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01097-DCB-
                                                 GEE-1
  v.

JUAN DAVID RIVERA-REYES,                         MEMORANDUM*

              Defendant - Appellant.


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

                      Argued and Submitted January 14, 2014
                            San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,** Senior District
Judge.

       Juan David Rivera-Reyes appeals his sentence following a plea of guilty to a

violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
and 18 U.S.C. § 3742. Reviewing de novo, United States v. Johnson, 581 F.3d

994, 1001 (9th Cir. 2009), we vacate and remand for resentencing.

      1.     The district court improperly imposed a sixteen-level enhancement

pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2 based on

Rivera-Reyes’s conviction of Nebraska Revised Statutes section 28-319(1)(c),

which does not require as an element a four-year age differential.1 Therefore, for

purposes of section 2L1.2, Nebraska Revised Statutes section 28-319(1)(c) does

not categorically qualify as a forcible sex offense, statutory rape, sexual abuse of a

minor, or otherwise as a crime of violence. See Taylor v. United States, 495 U.S.

575, 602 (1990); United States v. Caceres-Olla, No. 12-10132, -- F.3d --, 2013 WL

6847127, at *5 (9th Cir. Dec. 23, 2013); United States v. Gomez, 732 F.3d 971,

989 n.18 (9th Cir. 2013) (“[T]he generic definition of ‘statutory rape’ does . . .

include the element of a four-year age differential.”); Estrada-Espinoza v.

Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008) (en banc). The district court’s error

was not harmless. See Gomez, 732 F.3d at 990.




      1
        Because the parties agree that Rivera-Reyes was convicted of subsection
(c) of Nebraska Revised Statutes section 28-319(1), we need not conduct a
modified categorical analysis. See Descamps v. United States, -- U.S. --, 133 S. Ct.
2276 (2013).

                                           2
      2.    In light of the November 2013 amendment to U.S.S.G. § 3E1.1, and

because the government declined to move for a third-level reduction based on

Rivera-Reyes’s failure to waive his right to appeal, the government concedes that

Rivera-Reyes must be resentenced with respect to his acceptance of responsibility.

      VACATED and REMANDED.




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