                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 14 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10043

              Plaintiff - Appellee,              D.C. No. 4:13-cr-00648-CKJ-
                                                 BGM-1
 v.

VICTOR MANUEL ALBA-SUAREZ,                       MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                             Submitted May 11, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge, and BENAVIDES*** and OWENS, Circuit
Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
      Defendant Victor Manuel Alba-Suarez challenges the district court’s

application of a 16-level sentencing enhancement based on his prior conviction of

sexual battery by restraint in violation of California Penal Code § 243.4(a). We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1). We review de novo

the district court’s determination that a prior conviction qualifies as a “crime of

violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A). United States v. Grajeda, 581

F.3d 1186, 1188 (9th Cir. 2009). We affirm.

                                           I

      Courts apply the categorical approach set forth in Taylor v. United States to

determine whether a prior conviction qualifies as a forcible sex offense and

therefore a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). 495 U.S. 575, 600

(1990). Under this approach, “sentencing courts compare the elements of the

statute of conviction with a federal definition of the crime to determine whether

conduct proscribed by the statute is broader than the generic federal definition.”

United States v. Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013) (internal

quotation marks omitted). “If the statute of conviction ‘sweeps more broadly than

the generic crime, a conviction under that law cannot count as [a qualifying]

predicate, even if the defendant actually committed the offense in its generic




                                           2
form.’” Id. (alteration in original) (quoting Descamps v. United States, ––– U.S.

––––, 133 S.Ct. 2276, 2283 (2013)).

      Under California Penal Code § 243.4(a), “Any person who touches an

intimate part of another person while that person is unlawfully restrained by the

accused or an accomplice, and if the touching is against the will of the person

touched and is for the purpose of sexual arousal, sexual gratification, or sexual

abuse, is guilty of sexual battery.” “Touches” is defined as “physical contact with

the skin of another person whether accomplished directly or through the clothing

of the person committing the offense.” Cal. Pen. Code § 243.4(f). “Intimate part”

is defined as the “sexual organ, anus, groin, or buttocks of any person, and the

breast of a female.” Id. § 243.4(g)(1).

      United States Sentencing Guideline § 2L1.2(a) provides for an 8-level

sentence enhancement for unlawfully entering or remaining in the United States.

The Guideline provides for a 16-level enhancement if the defendant previously was

deported after being convicted of a “a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The Guideline defines “crime of violence” to include

“forcible sex offenses (including where consent to the conduct is not given or is

not legally valid, such as where consent to the conduct is involuntary, incompetent,

or coerced).” U.S.S.G. § 2L1.2, comment n.1(B)(iii).


                                          3
      California Penal Code § 243.4(a) qualifies as a forcible sex offense under the

categorical approach. “Sexual offense” is defined according to the ordinary

meaning of the term. See United States v. Quintero-Junco, 754 F.3d 746, 754 n.2

(9th Cir. 2014) (“[W]e have previously cited Black’s Law Dictionary for the

proposition that ‘a sexual offense involv[es] unlawful sexual conduct.’ Similarly,

42 U.S.C. § 16911(5)(A)(i) defines ‘sex offense’ as ‘a criminal offense that has an

element involving a sexual act or sexual contact with another.’”) (alteration in

original) (some internal quotation marks and citation omitted). An offense that

involves the “touch[ing of] an intimate part of another” against the person’s will

and “for the purpose of sexual arousal, sexual gratification, or sexual abuse”

qualifies as a “sex offense” under U.S.S.G. § 2L1.2.

      An offense committed in violation of California Penal Code § 243.4(a) is

also “forcible.” A conviction under California Penal Code § 243.4(a) requires that

the defendant touch the victim’s intimate parts “against the will of” the victim.

Cal. Pen. Code § 243.4. Under California law, “against the will” is defined as

“without the victim’s consent.” People v. Smith, 120 Cal. Rptr. 3d 52, 58 (Ct. App.

2010) (“[T]he phrase ‘against the will of the person touched’ connotes lack of

consent.”). Under the Guidelines, the category of “forcible sex offenses” includes

offenses in which “consent to the conduct is not given or is not legally valid, such


                                          4
as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G.

§ 2L1.2, comment n.1(B)(iii).

      Therefore, the district court correctly imposed the sentencing enhancement.

                                          II

      Alba-Suarez argues that his statute of conviction is overbroad because the

term “sexual act,” as defined by federal law in 18 U.S.C. § 2246(2), is narrower

than California Penal Code § 243.4(a). He argues that the Court articulated a

generic definition of “forcible sex offense” in Caceres-Olla when it stated 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.” 738 F.3d at 1054-55. He further argues

that “sexual act” is a term of art defined in the federal criminal code and therefore

we are required to compare the scope of the federal definition of “sexual act” with

the scope of the state sexual battery offense.

      This argument is not persuasive. The phrase “sexual act” never appears in

the Guidelines. The Guidelines do not suggest that a forcible sex offense pursuant

to § 2L1.2 must qualify as a “sexual act” under federal law. Our precedent

suggests that “sexual offense” should be defined according to the ordinary meaning




                                           5
of the term. See Quintero-Junco, 754 F.3d at 754 n.2; United States v.

Acosta-Chavez, 727 F.3d 903, 908 (9th Cir. 2013).

      Alba-Suarez also argues that California Penal Code § 243.4(a) is broader

than the generic federal definition because the “against the [victim’s] will” element

may be established solely on the basis of the victim’s status as a minor.

      This argument is also unavailing. California case law suggests that an

individual may not be convicted of a violation of § 243.4(a) based solely on the

victim’s status as a minor. A state appeals court has held that for a similar state

sexual assault statute—section 261,which criminalizes sexual intercourse against a

person’s will—the question of whether a minor has the capacity to consent is a

matter of fact, not law; the trier of fact must determine whether the minor actually

consented. People v. Young, 235 Cal. Rptr. 361 (Ct. App. 1987). In Young, the

defendant was convicted of forcible rape of a 6-year-old child in violation of § 261.

He challenged the sufficiency of the evidence for his conviction. 235 Cal. Rptr. at

363. The Court explained:

      Where, as here, the alleged victim is a child below the age of legal
      consent, whether the child has the capacity to ‘consent’ to an act of
      sexual intercourse within the meaning of section 261.6 will usually be
      a question of fact. When it is charged that an act is against the will of
      a person, ‘consent is at issue.’ (People v. White (1986) 179
      Cal.App.3d 193, 202 [224 Cal.Rptr. 467].) It will be for the trier of
      fact to determine, based upon the age and maturity of the child and the


                                           6
      circumstances as shown by the evidence in a particular case, whether
      the child is capable of ‘positive cooperation in act or attitude pursuant
      to an exercise of free will’ or able to ‘act freely and voluntarily’ with
      ‘knowledge of the nature of the act or transaction involved.’

Id. at 366.

      Criminal jury instructions for California Penal Code § 243.4 provide a

definition of “consent” that is nearly identical to the statutory definition provided

in § 261.6. The jury instructions provide: “A touching is done against a person’s

will if that person does not consent to it. To consent, a person must act freely and

voluntarily and know the nature of the touching.” Judicial Council of California

Criminal Jury Instructions (CALCRIM) 935; ER II at 6. State courts appear to

have endorsed the definition of consent articulated in the instructions. See, e.g.,

People v. Babaali, 90 Cal. Rptr. 3d 278, 287 (Ct. App. 2009) (“In the context of a

sexual assault, ‘against the will’ of the victim is synonymous with ‘without the

victim’s consent.’ Consequently, CALCRIM No. 938, the pattern instruction for

sexual battery (§ 243.4, subd. (e)(1)), defines ‘against a person’s will’ as the

‘person does not consent to the act.’ A defendant therefore commits a sexual

battery if he engages in an intimate non-consensual touching.”) (some internal

quotation marks and citation omitted).




                                           7
      Caceres-Olla, on which Alba-Suarez relies, is distinguishable. We

emphasized in Caceres-Olla that “a plain reading” of the Florida statutory rape

statute “makes clear that lack of consent is not an ‘element’ of the crime,” because

“[a]s with statutory rape [i]n most jurisdictions, [the Florida statute] is a strict

liability crime” and criminalizes sexual activity with a minor “regardless of

whether the victim, in fact, consents.” 738 F.3d at 1055 (second alteration in

original) (some internal quotation marks omitted). We reasoned that a “state

statute that for policy reasons treats a minor’s consent as irrelevant does not

necessarily render that minor’s conduct similar to conduct that is ‘involuntary,

incompetent, or coerced[,]’ all of which depend on the specific circumstances of

the crime and the victim.” Id. (alteration in original).

      Rather, “statutory rape offenses outlaw conduct based on the minor’s age

alone; however voluntary and competent the minor, her consent will not be a

defense to the crime.” Id. Caceres-Olla held that a statute is overbroad if age

alone, without regard for consent, is sufficient to support a conviction; it did not

hold that a statute is overbroad if a victim’s immaturity is one factor considered

when determining whether a victim actually consented.

      Here, consent is an element of § 243.4(a), and a showing of consent or an

honest and reasonable belief of consent is a defense to the crime. People v.


                                            8
Andrews, 184 Cal. Rptr. 3d 183, 194 (Ct. App. 2015) (“[T]he defense of a mistaken

but honest and reasonable belief of the victim’s consent is available to defendants

charged with sexual battery where there is substantial evidence to support the

defense and it is not inconsistent with the defendant’s theory of the case.”). Unlike

the strict liability statutory rape offense at issue in Caceres-Olla, § 243.4(a)

provides that a competent minor who “act[s] freely and voluntarily and know[s]

the nature of the touching” is capable of consenting. See, e.g., People v. Abdoun,

No. A106828, 2005 WL 913663, at *5 n.10 (Ct. App. Apr. 20, 2005) (unpublished)

(noting that during a trial that resulted in the defendant’s conviction of

misdemeanor sexual battery against a 15-year-old victim, “[t]he jury was instructed

that the victim’s consent was an available defense to the sexual battery charged”).

      The relevant consideration is not the victim’s age, but the victim’s actual

consent; the court must consider “the specific circumstances of the crime and the

victim.” Caceres-Olla, 738 F.3d at 1055. A violation of § 243.4(a) is a “forcible

sex offense,” and therefore a crime of violence pursuant to U.S.S.G. § 2L1.2. The

district court did not err by imposing a 16-level sentencing enhancement.


      AFFIRMED.




                                           9
