                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 12-10132
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:11-cr-02358-
                                          DCB-DTF-1
ISRAEL ARNOLDO CACERES-OLLA,
             Defendant-Appellant.          OPINION


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

                Argued July 8, 2013
            Submitted September 18, 2013
              San Francisco, California

               Filed December 23, 2013

   Before: Ferdinand F. Fernandez, Richard A. Paez,
        and Marsha S. Berzon, Circuit Judges.

             Opinion by Judge Berzon;
           Concurrence by Judge Fernandez
2              UNITED STATES V. CACERES-OLLA

                           SUMMARY*


                          Criminal Law

    Vacating a sentence and remanding on a closed record for
resentencing, the panel held that a prior felony conviction
under Florida Statutes section 800.04(4)(a) for lewd or
lascivious battery does not qualify as a “crime of violence”
within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because
the crime does not constitute a “forcible sex offense” or
“statutory rape.”

    Judge Fernandez concurred in the result, but not in all of
the reasoning of the majority opinion.


                            COUNSEL

M. Edith Cunningham (argued) and Christopher R. Kilburn,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender, Tucson, Arizona, for Defendant-Appellant.

Erica L. Seger (argued), Assistant United States Attorney;
John S. Leonardo, United States Attorney; Christian M.
Cabanillas, Appellate Chief, Tucson, Arizona, for Plaintiff-
Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. CACERES-OLLA                   3

                         OPINION

BERZON, Circuit Judge:

    Israel Arnoldo Caceres-Olla pleaded guilty, under
8 U.S.C. § 1326, to unlawful reentry into the United States.
Sentences for that offense are governed by United States
Sentencing Guideline (“Guideline”) 2L1.2. This case
presents the question whether a prior felony conviction under
Florida Statutes section 800.04(4)(a) for lewd or lascivious
battery qualifies as a “crime of violence” for purposes of that
Guideline. We hold that it does not, because the crime does
not constitute a “forcible sex offense” or “statutory rape”
within the meaning of the applicable Guideline. Because the
district court concluded otherwise, we vacate Caceres-Olla’s
sentence and remand on a closed record for resentencing.

                              I.

    The base offense level for a violation of § 1326 is eight.
See U.S.S.G. § 2L1.2(a). If the defendant was previously
deported after being convicted of a felony that constitutes a
“crime of violence,” the offense level goes up by sixteen
levels. Id. § 2L1.2(b)(1)(A)(ii).

    The presentence report (“PSR”) concluded that Caceres-
Olla’s prior conviction for lewd or lascivious battery was a
“forcible sex offense” and, consequently, qualified as a
“crime of violence” under Guideline 2L1.2(b)(1)(A)(ii).
Caceres-Olla objected, arguing that his prior conviction did
not constitute a “forcible sex offense,” because the Florida
statute did not require a non-consensual act and the
Guideline’s reference to “consent . . . [deemed] not legally
valid,” U.S.S.G. 2L1.2 cmt. n.1(B)(iii), was not intended to
4            UNITED STATES V. CACERES-OLLA

apply to statutes criminalizing sexual activity due only to the
victim’s age. The district court disagreed, applied the
recommended enhancement, and sentenced Caceres-Olla to
a 46-month prison term. Caceres-Olla timely appealed.

   We review de novo the district court’s decision that
Caceres-Olla’s prior conviction qualifies for a sentencing
enhancement under Guideline 2L1.2(b). See United States v.
Marquez-Lobos, 697 F.3d 759, 761 (9th Cir. 2012).

                              II.

    For the purpose of Guideline 2L1.2(b)(1)(A)(ii), a “crime
of violence” is defined as

       any of the following offenses under federal,
       state, or local law: murder, manslaughter,
       kidnapping, aggravated assault, 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),
       statutory rape, sexual abuse of a minor,
       robbery, arson, extortion, extortionate
       extension of credit, burglary of a dwelling, or
       any other offense under federal, state, or local
       law that has as an element the use, attempted
       use, or threatened use of physical force
       against the person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). Caceres-
Olla was convicted under Florida law of “[l]ewd or lascivious
battery,” which prohibits “[e]ngag[ing] in sexual activity with
a person 12 years of age or older but less than 16 years of
               UNITED STATES V. CACERES-OLLA                             5

age.” Fla. Stat. § 800.04(4)(a) (2008). The government
contends that Caceres-Olla’s conviction constitutes a “crime
of violence” because it qualifies as either a “forcible sex
offense” or “statutory rape.”1 We begin with the former.

                                    A.

    To determine whether section 800.04(4) qualifies as a
“crime of violence,” we apply the framework set forth in
Taylor v. United States, 495 U.S. 575 (1990). Taylor
established a “formal categorical approach,” id. at 600,
whereby 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.
Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010)
(citations and quotation marks omitted). “To constitute an
‘element’ of a crime, the particular factor in question needs
to be ‘a “constituent part” of the offense [that] must be
proved by the prosecution in every case to sustain a
conviction under a given statute.’” United States v.
Beltran-Munguia, 489 F.3d 1042, 1045 (9th Cir. 2007)
(citations omitted) (alteration and emphasis in original). 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


 1
   In his opening brief, Caceres-Olla maintains that his conviction did not
constitute “sexual abuse of a minor,” another enumerated “crime of
violence” within Guideline 2L1.2(b)(1)(A), because section 800.04(4)(a)
prohibits sexual conduct with minors of 14 years and older and does not
require an element of “abuse.” The government did not respond to this
argument, and so has waived reliance on that “crime of violence” variant.
See United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012).
6               UNITED STATES V. CACERES-OLLA

committed the offense in its generic form.” Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013).2

        The Sentencing Guidelines were amended in 2008 to

           include a more detailed description of the
           “forcible sex offenses” that would constitute
           crimes of violence. Rather than simply listing
           “forcible sex offenses” as a crime of violence,
           the new definition lists “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).”

United States v. Espinoza-Morales, 621 F.3d 1141, 1146 (9th
Cir. 2010) (quoting U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)). After
explaining that “forcible sex offenses” include crimes in
which there may be “‘assent in fact but no legally valid
consent . . . .’” U.S.S.G. app. C, amend. 722 (citations
omitted), the Sentencing Commission cited three examples of
scenarios drawn from past cases that the amendment was
intended to address, including situations in which consent is
procured by (1) threats “to reveal embarrassing secrets” or
“fire a subordinate”; (2) coercion by a “public servant,”
“member of the clergy,” or “mental health service provider”;



    2
   The Supreme Court has also “recognized a ‘narrow range of cases’ in
which sentencing courts—applying . . . the ‘modified categorical
approach’—may look beyond the statutory elements to ‘the charging
paper and jury instructions’” to determine whether the defendant’s
conviction necessarily involved facts corresponding to the generic federal
offense. Id. at 2283–84.
             UNITED STATES V. CACERES-OLLA                    7

or (3) exploitation of a known “mental disease or defect” or
“intoxication.” Id. (citations omitted).

    Under the amended Guidelines, a “forcible sex offense”
thus 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.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). A plain reading
of Florida’s “[l]ewd and lascivious battery” offense, Fla. Stat.
§ 800.04(4)(a), makes clear that lack of consent is not an
“element” of the crime. As with statutory rape “[i]n most
jurisdictions,” section 800.04(4)(a) “is a strict liability
crime.” United States v. Gomez-Mendez, 486 F.3d 599, 604
(9th Cir. 2007). It criminalizes “[e]ngag[ing] in sexual
activity with a person 12 years of age or older but less than 16
years of age,” regardless of whether the victim, in fact,
consents. Fla. Stat. §§ 800.04(2), (4)(a).

    Caceres-Olla’s conviction could only be a “forcible sex
offense,” therefore, if the victim’s “consent . . . is [deemed]
not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced.” U.S.S.G. 2L1.2 cmt.
n.1(B)(iii). The government contends that section 800.04(4)
is categorically a “forcible sex offense” under that provision,
because consent is not a defense to the crime under Florida
law. See Fla. Stat. § 800.04(2) (“Neither the victim’s lack of
chastity nor the victim’s consent is a defense to the crimes
proscribed by this section.”).

    We disagree for three reasons. First, the absence of a
consent defense to statutory rape is analytically distinct from
situations in which a victim’s “consent . . . is [deemed] not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced.” U.S.S.G. 2L1.2 cmt.
8            UNITED STATES V. CACERES-OLLA

n.1(B)(iii). The three examples cited by the Sentencing
Commission, see infra at pp. 6–7, involve instances in which
the victim does not in fact have the state of mind of willing
acquiescence — either because her consent is coerced, or
because her actual state of mind is such that she is not capable
of willingly consenting, as in the case of incompetence or
intoxication. We have acknowledged, however, that “the
assumption that a minor’s legal incapacity implies that the
proscribed sexual intercourse is non-consensual” does not
always “hold true[.]” Valencia v. Gonzales, 439 F.3d 1046,
1051 (9th Cir. 2006). Some minors are “able to engage in
sexual intercourse voluntarily, despite being legally incapable
of consent.” Id. In other words, because statutory rape is a
strict liability crime, the minor’s actual state of mind does not
matter, nor does the minor’s actual capacity for mature
deliberation.

    Application of the familiar ejusdem generis canon
suggests that the general term “consent . . . not legally valid,”
U.S.S.G. 2L1.2 cmt. n.1(B)(iii), should be “construed to
embrace only [circumstances] similar in nature to those
[circumstances] enumerated” in the phrase that follows,
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15
(2001) (citation and quotation marks omitted). 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. Instead, 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.
             UNITED STATES V. CACERES-OLLA                     9

    Second, reading “forcible sex offenses” to encompass a
conviction under section 800.04(4) on the theory that the
victim’s consent is “involuntary” or “incompetent” by virtue
of a statute criminalizing sexual activity on the basis of the
victim’s age would render superfluous the inclusion of
“statutory rape” and “sexual abuse of a minor” as other
enumerated offenses constituting “crime[s] of violence.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

     “The term ‘statutory rape’ is ordinarily, contemporarily,
and commonly understood to mean the unlawful sexual
intercourse with a minor under the age of consent specified
by state statute.” Gomez-Mendez, 486 F.3d at 603. If all sex
offenses “where consent . . . is not legally valid” on the basis
of age are, by definition, “forcible,” there would be no need
to separately enumerate “statutory rape.” See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii). The same would be true of “sexual
abuse of a minor,” whereby “we define the term ‘abuse’ . . .
in light of the age of the victim in question,” United States v.
Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009), and have
held that “[s]exual conduct with younger children is per se
abusive[,]” Valencia-Barragan, 608 F.3d at 1107.

    “A statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” Corley v. United States,
556 U.S. 303, 314 (2009) (citations and quotation marks
omitted). This “basic interpretive canon[ ,]” id., applies to
the Sentencing Guidelines. See United States v. Wenner,
351 F.3d 969, 974–75 (9th Cir. 2003). Yet, when asked at
argument, the government could identify no circumstance in
which a “statutory rape” would not also be a “forcible sex
offense” under its interpretation. Nor can we. “It is our duty
to give effect, if possible, to every clause and word of a
10           UNITED STATES V. CACERES-OLLA

statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001)
(citations and quotation marks omitted). We are “reluctan[t]
to treat . . . as surplusage,” id., the Guidelines’ enumeration
of statutory rape and sexual abuse of a minor as separate
crimes of violence.

    Third, deeming as “forcible sex offenses” all sexual acts
with persons under the age of majority would ignore
contemporary limitations on the concept of statutory rape. In
particular, there has been a move among the states to reform
statutory rape laws in cases involving partners of a similar
age — for instance, foreclosing prosecutions of 16-year-olds
for heavy petting with 14-year-olds, or reducing sentences of
19-year-olds for sexual intercourse with 17-year-olds. See,
e.g., Charles A. Phipps, Misdirected Reform: On Regulating
Consensual Sexual Activity Between Teenagers, 12 Cornell
J.L. & Pub. Pol’y 373, 390–91 (2003). In recognition of this
growing consensus, we have held that, for federal purposes,
an age difference of at least four years is an element of
“sexual abuse of a minor,” Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1158 (9th Cir. 2008) (en banc), and of
“statutory rape” as well, United States v. Gomez, 732 F.3d
971, 988–89 (9th Cir. 2013).

    Reading the term “forcible sex offenses” — which
requires no age difference — to encompass all sexual conduct
with minors, would obliterate those limitations. A so-called
“Romeo-and-Juliet offender[ ,]” Doe v. Mich. Dep’t of State
Police, 490 F.3d 491, 503 (6th Cir. 2007), could be deemed
to have been convicted of a “forcible sex offense” by virtue
of the victim’s age, despite being expressly and intentionally
excluded from the generic federal definitions of “statutory
rape” and “sexual abuse of a minor.”
              UNITED STATES V. CACERES-OLLA                     11

   For these reasons, we hold that a conviction under section
800.04(4) is not categorically a “forcible sex offense.”

     Our interpretation accords with that of the Fourth Circuit,
which recently addressed this issue in United States v.
Rangel-Castaneda, 709 F.3d 373, 376 (4th Cir. 2013)
(concerning Tennessee’s prohibition on “sexual penetration
. . . when the victim is at least thirteen (13) but less than
eighteen (18) years of age and the defendant is at least ten
(10) years older than the victim.”). “Reading the various
portions of the crime-of-violence enhancement in context,”
the Fourth Circuit concluded that “the Sentencing
Commission purposely juxtaposed the neighboring terms
‘forcible sex offense[ ]’ and ‘statutory rape,’ with the former
intended to connote rape or other qualifying conduct by
compulsion and the latter intended to connote rape on account
of the victim’s age.” Id. at 380. Further, the “Guidelines’
reference . . . to consent that is ‘not legally valid’ by virtue of
being ‘involuntary, incompetent, or coerced’ was intended
simply to clarify that the requisite compulsion need not be
physical in nature.” Id. (citing U.S.S.G. app. C, amend. 722,
at 302–03). Thus, “the fact that Tennessee law renders the
consent of a statutory rape victim formally irrelevant does not
mean that the offense necessarily requires sexual conduct that
is ‘forcible’ . . .—that is, involving actual compulsion.” Id.

    Judge Tashima expressed a similar view in United States
v. Gonzalez-Aparicio, 663 F.3d 419, 437 n.5 (9th Cir. 2011)
(Tashima, J., dissenting) (concerning Arizona’s statute which
criminalizes “sexual intercourse or oral sexual contact with
12             UNITED STATES V. CACERES-OLLA

any person who is under eighteen years of age”).3
Responding to the same argument advanced by the
government here, Judge Tashima asked: “if statutory rape
crimes are ‘forcible sex offenses’ simply because the minor’s
consent is invalid under state law, then why does the
commentary list statutory rape separately?” Id. He
concluded that “[t]he parenthetical language” describing
invalid consent “does not target statutory rape[,]” because
such a reading “would render the term ‘statutory rape’
superfluous.” Id. (emphasis in original).

    A conviction under section 800.04(4) is not categorically
a “forcible sex offense.” Nor is section 800.04(4) a “divisible
statute” with respect to the element of consent, for which the
modified categorical approach may be of “assist[ance] . . . in
identifying the defendant’s crime of conviction.” Descamps,
133 S. Ct. at 2285, 88.

    We therefore proceed to consider the government’s
alternative argument.

                                   B.

    Caceres-Olla’s prior conviction does not qualify as a
“crime of violence” under Guideline 2L1.2(b)(1)(A)’s
“statutory rape” alternative. Gomez, 732 F.3d 988, held that
the generic definition of “statutory rape” includes “‘an age
difference of at least four years between the defendant and the


  3
     The Gonzalez-Aparicio majority held that defendant’s conviction
constituted “statutory rape” under the Guidelines, and thus did not reach
the question, addressed in Judge Tashima’s dissent, whether the
conviction separately constituted a “forcible sex offense.” Id. at 433 &
n.4.
             UNITED STATES V. CACERES-OLLA                    13

minor.’” Section 800.04(4) does not have an age difference
element. A conviction under section 800.04(4) is therefore
not categorically “statutory rape.” “Because the statute is
missing an element of the[] generic crime[], our inquiry ends
here—we do not undertake a modified categorical analysis.”
Id. at 989.

                              III.

    “As a general rule, when the district court errs in
sentencing, we should vacate and ‘remand for re-sentencing
on an open record — that is, without limitation on the
evidence that the district court may consider.’”
Espinoza-Morales, 621 F.3d at 1152 (quoting United States
v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc)).
“We may depart from this general rule, however, when
‘additional evidence would not [change] the outcome’ or
when ‘there was a failure of proof after a full inquiry into the
factual question at issue.’” Id. (alteration in original).

    The government conceded at oral argument that it
produced all available judicially noticeable facts to support its
position that Caceres-Olla’s conviction constituted a “crime
of violence.” We therefore remand for resentencing on the
existing record.

    VACATED AND REMANDED.



FERNANDEZ, Circuit Judge, concurring:

   I concur in the result, but not in all of the reasoning of the
majority opinion. I concur in part I and in the portion of part
14            UNITED STATES V. CACERES-OLLA

II before IIA First. As to part IIA First (majority opinion at
pages 7 to 8), I do not agree. The guideline definition
indicates that it applies to forcible sex offenses, which
include those where “consent . . . is not legally valid.” USSG
§2L1.2, comment. (n.1(B)(iii)) (Nov. 2011). We have
declared that minors are “legally incapable of consent.”
Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006);
see also Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1154
(9th Cir. 2008) (en banc). As I see it, if a child is “legally
incapable of consent,” that child’s “consent . . . is not legally
valid,” and no amount of judicial sortilege will make it so.

    That said, I do agree with the discussion in parts IIA
Second (majority opinion at pages 9 to 10, insofar as it
discusses statutory rape) and Third (majority opinion at page
10). Moreover, I agree with part IIB. See United States v.
Gomez, 732 F.3d 971, 987–89 (9th Cir. 2013). Finally,
because the government has conceded that it has no more
evidence to produce, I agree with part III.

     Thus, I respectfully concur in the result.
