                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CARLOS QUINTERO-CISNEROS,                No. 13-72632
                     Petitioner,
                                          Agency No.
                v.                       A027-934-447

JEFFERSON B. SESSIONS III, Attorney
General,                                  OPINION
                       Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

       Argued and Submitted December 7, 2017
                Seattle, Washington

                 Filed June 11, 2018

 Before: Diarmuid F. O’Scannlain, Richard C. Tallman,
          and Paul J. Watford, Circuit Judges.

              Opinion by Judge Watford
2               QUINTERO-CISNEROS V. SESSIONS

                            SUMMARY*


                            Immigration

    The panel denied Carlos Quintero-Cisneros’ petition for
review of the Board of Immigration Appeals’ denial of his
application for cancellation of removal, holding that he was
ineligible for relief because his conviction by guilty plea to
the charge of “Assault of a Child in the Third Degree –
Criminal Negligence and Substantial Pain – With Sexual
Motivation” is a categorical match for sexual abuse of
a minor, an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(A).

    Employing the categorical approach, the panel noted that
the relevant definition of the federal offense of sexual abuse
of a minor requires proof of three elements: (1) sexual
conduct, (2) with a minor, (3) that constitutes abuse.
Quintero’s base offense was assault of a child in the third
degree under Wash. Rev. Code §§ 9A.36.140(1),
9A.36.031(1)(f), which does not include an element of sexual
motivation. However, the information included a special
allegation that Quintero committed the crime “with sexual
motivation.” Wash. Rev. Code § 9.94A.835(2). As a result,
the first issue for the panel was whether the sexual motivation
allegation is an element of Quintero’s conviction.

    The panel observed that it could look to state law to
decide what counts as an element of the offense.
Alternatively, it could look to the line of Supreme Court

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             QUINTERO-CISNEROS V. SESSIONS                3

precedent beginning with Apprendi v. New Jersey, 530 U.S.
466 (2000), interpreting the Sixth Amendment’s right to jury
trial. If a sentencing enhancement would be treated as an
element of the offense for Sixth Amendment purposes, the
government argued, it should be considered an element of the
offense for purposes of the categorical analysis as well.

     The panel concluded it was unnecessary to decide which
approach is the correct one, for in this case the sexual
motivation allegation constitutes an element under either
approach. Considering the question under Washington law,
the panel concluded that the sexual motivation allegation is
an element of Quintero’s offense, observing that, under
Washington’s sentencing scheme, the sexual motivation
allegation is a sentencing enhancement that must be charged
and found by a jury beyond a reasonable doubt, and that
sentencing enhancements of this sort are considered elements
of an offense. The panel also concluded that, under the
Apprendi line of cases, the sexual motivation allegation
would also be considered an element of the offense because
it increased Quintero’s maximum authorized sentence.

    Finally, the panel concluded that Quintero’s offense of
conviction is a categorical match for the federal generic
offense of sexual abuse of a minor because (1) the offense
involved sexual conduct, (2) the victim was a minor, and
(3) the conduct was per se abusive because the victim was
under the age of 14.
4            QUINTERO-CISNEROS V. SESSIONS

                        COUNSEL

Henry Cruz (argued), Rios & Cruz P.S., Seattle, Washington,
for Petitioner.

Scott G. Stewart (argued) and Nicole N. Murley, Trial
Attorneys; Daniel E. Goldman, Senior Litigation Counsel;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.


                         OPINION

WATFORD, Circuit Judge:

    Carlos Quintero-Cisneros, a native and citizen of Mexico,
has been a lawful permanent resident of the United States
since he was an infant. In 2009, at the age of 21, he pleaded
guilty to the following offense under Washington law, as
charged in the information: “Assault of a Child in the Third
Degree – Criminal Negligence and Substantial Pain – With
Sexual Motivation.” The precise components of that offense
matter here, so we will describe them in a bit more detail.

   The base offense—assault of a child in the third
degree—is defined in these terms:

           A person eighteen years of age or older is
       guilty of the crime of assault of a child in the
       third degree if the child is under the age of
       thirteen and the person commits the crime of
       assault in the third degree as defined in RCW
       9A.36.031(1)(d) or (f) against the child.
             QUINTERO-CISNEROS V. SESSIONS                 5

Wash. Rev. Code § 9A.36.140(1). As this provision
indicates, assault of a child in the third degree can be
committed in one of two ways, depending on which
subsection—(1)(d) or (1)(f)—of the third-degree assault
statute the defendant is charged with violating. Quintero was
charged with violating subsection (1)(f), which provides:

           (1) A person is guilty of assault in the
       third degree if he or she, under circumstances
       not amounting to assault in the first or second
       degree:

                          * * *

           (f) With criminal negligence, causes
       bodily harm accompanied by substantial pain
       that extends for a period sufficient to cause
       considerable suffering[.]

§ 9A.36.031(1)(f).

    The final component of Quintero’s offense is a special
allegation that he committed the crime “with a sexual
motivation.” § 9.94A.835(2). Under Washington law, a
defendant commits an offense with sexual motivation if “one
of the purposes for which the defendant committed the crime
was for the purpose of his or her sexual gratification.”
§ 9.94A.030(48). As discussed in more detail below, that
allegation must be charged in the information and admitted
by the defendant or proved to a jury beyond a reasonable
doubt.

   In 2010, based on Quintero’s 2009 conviction, the
Department of Homeland Security initiated removal
6            QUINTERO-CISNEROS V. SESSIONS

proceedings against him. The agency charged Quintero with
being removable under 8 U.S.C. § 1227(a)(2)(E)(i), which
authorizes the removal of “[a]ny alien who at any time after
admission is convicted of . . . a crime of child abuse.” An
immigration judge (IJ) sustained the charge after concluding
that Quintero’s 2009 conviction qualifies as a conviction for
child abuse. Quintero does not challenge that determination
here.

    Having been found removable, Quintero requested
cancellation of removal or, in the alternative, voluntary
departure. The IJ found Quintero statutorily ineligible for
both forms of relief. Under the Immigration and Nationality
Act, a lawful permanent resident is barred from receiving
cancellation of removal or voluntary departure if he has been
“convicted of any aggravated felony.”              8 U.S.C.
§ 1229b(a)(3) (cancellation of removal); see also
§§ 1229c(b)(1)(C), 1227(a)(2)(A)(iii) (voluntary departure).
The term “aggravated felony” is defined to include, among
other offenses, “sexual abuse of a minor.” § 1101(a)(43)(A).
The IJ concluded that the offense underlying Quintero’s 2009
conviction constitutes sexual abuse of a minor. The IJ
accordingly denied Quintero’s request for relief and ordered
him removed to Mexico.

    The Board of Immigration Appeals (BIA) affirmed.
Relying on its precedential decision in In re Martinez-Zapata,
24 I. & N. Dec. 424 (BIA 2007), the agency held that the
sexual motivation allegation must be treated as an element of
the offense because (1) the allegation had to be proved
beyond a reasonable doubt or admitted by the defendant, and
(2) the allegation had the effect of increasing the maximum
sentence Quintero could receive. Treating the sexual
motivation allegation as an element of the offense, the BIA
             QUINTERO-CISNEROS V. SESSIONS                    7

concluded that Quintero’s offense of conviction qualifies as
sexual abuse of a minor.

    In his petition for review, Quintero contends that the BIA
erred in holding that he has been convicted of an offense that
constitutes sexual abuse of a minor. We review that legal
issue de novo, employing the so-called “categorical”
approach. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012
(9th Cir. 2009). The categorical approach requires us to
compare the elements of Quintero’s offense of conviction
with the elements of the federal generic offense to see if the
two sets of elements are a categorical match. That will be
true if the elements of the offense underlying Quintero’s 2009
conviction “are the same as, or narrower than, those of the
generic offense.” Descamps v. United States, 570 U.S. 254,
257 (2013).

    We have developed two definitions specifying the
elements of the federal generic offense of sexual abuse of a
minor. The first definition is not relevant for our purposes, as
it applies mainly to statutory rape offenses. See Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1150, 1152 (9th Cir.
2008) (en banc); see also Esquivel-Quintana v. Sessions,
137 S. Ct. 1562, 1569 (2017). The second definition, which
applies to all other offenses, is the one we are concerned with
here. That definition requires proof of three elements:
(1) sexual conduct, (2) with a minor, (3) that constitutes
abuse. United States v. Medina-Villa, 567 F.3d 507, 513 (9th
Cir. 2009).

   Quintero argues that the offense underlying his 2009
conviction is missing both the “sexual conduct” and “abuse”
elements of the federal generic offense. If the sexual
motivation allegation is not an element of his conviction, he
8            QUINTERO-CISNEROS V. SESSIONS

is right. So we must first decide what elements are included
in the state-law offense to which he pleaded guilty. That is
not a matter within the BIA’s expertise, which means we owe
no deference to its resolution of this issue. Hernandez-
Gonzalez v. Holder, 778 F.3d 793, 798 (9th Cir. 2015).

    Our circuit has not yet resolved how to determine what
elements are part of the offense that a petitioner has been
“convicted of” under a statute like 8 U.S.C. § 1229b(a)(3).
We could, of course, look to state law to tell us what counts
as an element of the offense and what does not.
Alternatively, the government contends that we should look
to the line of Supreme Court precedent beginning with
Apprendi v. New Jersey, 530 U.S. 466 (2000), interpreting the
Sixth Amendment’s right to jury trial. If a sentencing
enhancement would be treated as an element of the offense
for Sixth Amendment purposes, the government argues, it
should be considered an element of the offense for purposes
of the categorical analysis as well.

   We conclude that it is unnecessary to decide which
approach is the correct one, for in this case the sexual
motivation allegation constitutes an element under either
approach.

    Under Washington law, Quintero’s offense of conviction
is not simply assault of a child in the third degree. The State
also charged that he committed the offense “with sexual
motivation,” a special allegation that Quintero admitted when
he pleaded guilty. That allegation is considered an element
of the crime with which Quintero was charged and of which
he was ultimately convicted. A brief primer on Washington’s
sentencing scheme will help explain why that is so.
             QUINTERO-CISNEROS V. SESSIONS                9

    A defendant’s sentence under Washington law is dictated
largely by the “standard sentence range,” which a sentencing
judge computes by taking into account the defendant’s
“offender score” and “offense seriousness score.” Wash.
Rev. Code § 9.94A.530(1). The judge may not impose a
sentence above the standard range unless specified
aggravating circumstances are found by a jury beyond a
reasonable doubt or admitted by the defendant (with the
exception of certain recidivism-based circumstances, which
may be found by the judge). §§ 9.94A.535(2)–(3),
9.94A.537(3). Even if a jury finds an aggravating
circumstance, the sentencing judge retains the discretion to
impose a sentence within the standard range. § 9.94A.537(6).
Aggravating circumstances need not be alleged in the
information. State v. Siers, 274 P.3d 358, 364 (Wash. 2012).

    Washington law also allows the State to seek certain
sentencing enhancements, which require a mandatory
increase to the standard range itself. Wash. Rev. Code
§ 9.94A.533. Unlike aggravating circumstances, sentencing
enhancements must be charged in the information, and the
facts supporting the enhancement must be found by a jury
beyond a reasonable doubt or admitted by the defendant.
State v. Recuenco, 180 P.3d 1276, 1279, 1282 (Wash. 2008).
The sexual motivation allegation charged in Quintero’s
information is one such sentencing enhancement. See Wash.
Rev. Code §§ 9.94A.533(8), 9.94A.835(2). If found by the
jury or admitted by the defendant, the sexual motivation
allegation adds between 12 and 24 months to a defendant’s
standard range, depending on the nature of the underlying
crime. § 9.94A.533(8)(a)(i)–(iii).

   The Washington Supreme Court has ruled that sentencing
enhancements of this sort are considered elements of the
10           QUINTERO-CISNEROS V. SESSIONS

offense that the State must charge and prove. The court made
that clear in Recuenco, where it held that sentencing
enhancements must be charged in the information under the
“essential elements rule.” 180 P.3d at 1279. That rule
requires the State to allege in the charging document facts
establishing each element of the offense, with “elements”
defined to mean “the facts that the State must prove beyond
a reasonable doubt to establish that the defendant committed
the charged crime.” Id. Sentencing enhancements are a
constituent part of the crime charged. As the court succinctly
put it: “Washington law requires the State to allege in the
information the crime which it seeks to establish. This
includes sentencing enhancements.” Id. (footnote omitted).
Under state law, then, the sexual motivation allegation is
considered one of the elements of the crime with which
Quintero was charged and to which he pleaded guilty: not
simply assault of a child in the third degree, but assault of a
child in the third degree with sexual motivation.

    As indicated above, the government is correct that the
sexual motivation allegation would also be considered an
element of the offense for Sixth Amendment purposes.
Under the Apprendi line of cases, a fact is treated as an
offense element if it increases the maximum authorized
sentence beyond what the jury’s verdict (or the defendant’s
guilty plea) alone permits. See Blakely v. Washington,
542 U.S. 296, 303 (2004). Based solely on the facts admitted
as part of Quintero’s guilty plea to assault of a child in the
third degree, the maximum sentence he would have been
eligible to receive was not the 5-year statutory maximum, but
1–3 months, the standard sentence range calculated for that
offense. See id. at 303–04. Admitting the sexual motivation
allegation resulted in a mandatory 12-month addition to
Quintero’s standard range, increasing the maximum
             QUINTERO-CISNEROS V. SESSIONS                   11

authorized punishment to 13–15 months. As a fact that
increased “the prescribed range of penalties” to which
Quintero was exposed, sexual motivation would be regarded
as an element of the offense for Sixth Amendment purposes.
Alleyne v. United States, 570 U.S. 99, 111 (2013) (quoting
Apprendi, 530 U.S. at 490).

    Thus, regardless of whether we look to state law or the
Supreme Court’s Sixth Amendment jurisprudence, it is clear
that sexual motivation is an element of the offense underlying
Quintero’s 2009 conviction. The remaining question is
whether the offense of conviction—assault of a child in the
third degree with sexual motivation—is a categorical match
for the federal generic offense of sexual abuse of a minor.
We think it is, because the elements of assault of a child in
the third degree with sexual motivation are no broader than
the elements of sexual abuse of a minor.

    The first element of the federal generic offense is sexual
conduct. Medina-Villa, 567 F.3d at 513. Quintero’s offense
of conviction requires proof that one of the purposes for
which the defendant committed the underlying assault was
“for the purpose of his . . . sexual gratification.” Wash. Rev.
Code § 9.94A.030(48). We have held that an offense
committed for the purpose of sexual gratification necessarily
involves “sexual conduct.” United States v. Rocha-Alvarado,
843 F.3d 802, 808 (9th Cir. 2016). Quintero’s offense is thus
a categorical match for the first element of the federal generic
offense.

    Quintero does not dispute that his offense is a categorical
match for the second element of the federal generic offense,
as both offenses require proof that the victim was a minor.
12           QUINTERO-CISNEROS V. SESSIONS

    Quintero’s offense is also a categorical match for the third
element of the federal generic offense: “abuse.” We have
held that sexual conduct involving children under the age of
14 is per se abusive. Id. Quintero’s offense requires proof of
purposeful sexual conduct (not merely negligent conduct, as
he wrongly asserts), by virtue of the sexual motivation
allegation. And the sexual conduct must involve a child
under the age of 13, since that is an element of the underlying
assault offense.      Wash. Rev. Code § 9A.36.140(1).
Quintero’s offense is thus a categorical match for the third
element of the federal generic offense as well.

    In sum, the sexual motivation allegation must be regarded
as an element of Quintero’s offense of conviction. That
offense is a categorical match for sexual abuse of a minor, an
aggravated felony that bars the relief from removal Quintero
requested.

     PETITION FOR REVIEW DENIED.
