                                                                             FILED
                            NOT FOR PUBLICATION                              MAY 30 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10321

              Plaintiff - Appellee,               D.C. No. 4:12-cr-01941-JGZ-
                                                  LAB-1
  v.

FERMIN TOVAR-JIMENEZ,                             MEMORANDUM*

              Defendant - Appellant.


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

                        Argued and Submitted May 14, 2014
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and ROBART, District
Judge.**

       On appeal, Fermin Tovar-Jimenez challenges the 41-month sentence

imposed by the district court following his guilty plea to illegal reentry after

deportation in violation of 8 U.S.C. § 1326. Because the parties are familiar with

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James L. Robart, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
the facts and procedural history of this case, we repeat only those facts necessary to

resolve the issues raised on appeal. We vacate and remand for resentencing.

      The district court erred in applying a 16-level sentencing enhancement after

concluding that Tovar-Jimenez’s prior conviction for rape of a child in the third

degree in violation of Revised Code of Washington § 9A.44.079 qualified as

statutory rape, and was thus a crime of violence under U.S. Sentencing Guidelines

Manual § 2L1.2(b)(1)(A)(ii).

      Section 9A.44.079 includes as an element that the defendant had “sexual

intercourse” with the victim. Wash. Rev. Code § 9A.44.079. Sexual intercourse is

defined disjunctively in three ways under Washington law. Wash. Rev. Code §

9A.44.010(1). Only two of the three alternatives require penetration, whereas one

requires only “sexual contact . . . involving the sex organs of one person and the

mouth or anus of another . . . .” Id. The generic definition of sexual intercourse,

however, does not encompass oral sexual contact. See United States v. Gomez, —

F.3d —, No. 11-30262, 2014 WL 1623725, at *17 n.33 (9th Cir. Apr. 24, 2014).

Therefore, § 9A.44.079 sweeps more broadly than the generic crime of statutory




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rape.1 The district court applied the 16-level sentencing enhancement without

considering whether Tovar-Jimenez was convicted of the elements of generic

statutory rape, including the generic definition of sexual intercourse. Therefore,

we vacate the sentence and remand to the district court to reapply the framework

from Taylor v. United States, 495 U.S. 575 (1990), to determine whether Tovar-

Jimenez was convicted of the elements of generic statutory rape. See also

Descamps v. United States, 133 S. Ct. 2276 (2013).

      Additionally, the government concedes that Tovar-Jimenez’s judgment of

conviction should be amended to reflect a sentencing enhancement pursuant to 8

U.S.C. § 1326(b)(1), rather than § 1326(b)(2), because Tovar-Jimenez did not

admit to having a prior conviction that qualified as an aggravated felony.

      Finally, because we remand for resentencing, we need not address the

remainder of Tovar-Jimenez’s arguments.

      VACATED AND REMANDED.




      1
        Although we held in United States v. Zamorano-Ponce, 699 F.3d 1117 (9th
Cir. 2012), that a conviction under § 9A.44.079 qualifies categorically as generic
statutory rape, we did not consider whether sexual intercourse as defined in §
9A.44.010(1) was a categorical match for the generic definition of sexual
intercourse.

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