                                                                         FILED
                    UNITED STATES COURT OF APPEALS                        OCT 08 2014

                                                                     MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                       U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                      No. 11-10483

              Plaintiff - Appellee,            D.C. No. 4:11-cr-01229-DCB-
                                               JCG-1
  v.                                           District of Arizona,
                                               Tucson
DANILO BANOS-MEJIA,

              Defendant - Appellant.           ORDER


Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.

       The memorandum disposition filed on September 16, 2014, is withdrawn

and another memorandum disposition is filed concurrently with this order.

       The government’s motion for panel rehearing is denied as moot.
                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 08 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-10483

              Plaintiff - Appellee,               D.C. No. 4:11-cr-01229-DCB-
                                                  JCG-1
  v.

DANILO BANOS-MEJIA,                               MEMORANDUM*

              Defendant - Appellant.


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

                       Argued and Submitted March 15, 2013
                            San Francisco, California

Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.

       Danilo Banos-Mejia appeals his conviction and sentence following a guilty

plea to one count of illegal reentry following deportation, in violation of 8 U.S.C.

§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, and

affirm in part without prejudice, with instructions.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Banos contends that the district court abused its discretion by denying

his request to withdraw his guilty plea. A defendant may withdraw a guilty plea

prior to sentencing if he “can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant cannot withdraw his

plea because he realizes that his sentence will be higher than he had expected.”

United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003); see also Shah v.

United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“Nor do we believe that fear of

receiving a harsh sentence, standing alone, constitutes a ‘fair and just’ reason to

withdraw a plea, even if counsel’s initial advice as to length of plea turned out to

be inaccurate.”). Here, Banos requested to withdraw his guilty plea only after

realizing that the district court would enhance his sentence based on a prior

conviction. The record does not reveal any other basis for his request. Therefore,

we affirm the district court’s denial of Banos’s request to withdraw his guilty plea.

      2. Banos signed a plea agreement containing a waiver of his right to appeal,

upon which the government now relies. We find that the waiver provision is

unclear as to whether Banos could appeal the district court’s determination of

whether his prior conviction qualifies as a “crime of violence.” Specifically,

pursuant to the plea agreement, Banos waived his right to appeal the “imposition of

sentence upon [him] providing the sentence is consistent with this agreement.”


                                           2
(emphasis added). However, the agreement fails to explain what is meant by this

provision.1 “Because a plea agreement is, at bottom, a contract between the

government and a criminal defendant,” we construe any ambiguity in its language

against the drafter of the agreement—here, the government. United States v.

Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006). Accordingly, we conclude

that Banos did not knowingly and intelligently waive his right to appeal the district

court’s finding that his prior conviction qualifies as a “crime of violence.”

      3. Banos challenges the district court’s imposition of a 16-level

enhancement based on his 2008 conviction under New York Penal Law

§ 130.30(1). The district court applied the enhancement after concluding that

Banos’s prior conviction qualified as a “crime of violence” because it constituted

“statutory rape,” as that term was “generically defined” in United States v.




      1
        Indeed, another panel of this court found an identical appeal waiver
provision to be ambiguous. See United States v. Aguilar-Balbuena, 475 Fed.
Appx. 222, 223 (9th Cir. 2012).

                                           3
Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007), and United States v.

Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).2

      On appeal, Banos argues that his sentence must be reversed because under

Estrada-Espinoza v. Mukasey, 546 F.3d 1147(9th Cir. 2008)(en banc), the generic

definition of statutory rape includes a mens rea element, whereas § 130.30(1) does

not. Therefore, Banos’s argument goes, § 130.30(1) does not meet the generic

definition of “statutory rape” under Taylor’s categorical approach. Taylor v.

United States, 495 U.S. 575 (1990). Banos misreads Estrada-Espinoza. As we

explained in United States v. Zamorano-Ponce, “[n]othing in Estrada-Espinoza

purports to require that ‘statutory rape,’ within the meaning of the commentary to

the Guidelines, contain a mens rea element.” 699 F.3d 1117, 1120 (9th Cir. 2012).

      Nevertheless, we hold that Banos is eligible for resentencing. Under

Gomez-Mendez and Rodriguez-Guzman, “the generic federal definition of

‘statutory rape’ is unlawful sexual intercourse with a person under the age of 16.”

Zamorano-Ponce, 699 F.3d at 1119. Recently, in U.S. v. Gomez, —F.3d—, 2014

U.S. App. LEXIS 7810, at *65, 2014 WL 1623725, at *17 (9th Cir. Apr. 24, 2014),

      2
        The United States Sentencing Guidelines (“Guidelines”) define a “crime of
violence” to include (1) “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)”; (2) “statutory rape”; and (3) “sexual abuse
of a minor.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2011).

                                          4
we held that the generic federal definition of “statutory rape” also includes a

four-year-age-difference element.

      The statute under which Banos was convicted, New York Penal Law §

130.30(1), provides that a person is guilty of second-degree rape when “being

eighteen years old or more, he or she engages in sexual intercourse with another

person less than fifteen years old.” Thus, a defendant could be convicted under §

130.30(1) even if there is less than four years age difference between the defendant

and the victim. Because § 130.30(1) sweeps more broadly than the generic federal

offense, a conviction under § 130.30(1) does not qualify as “statutory rape” under

the generic federal definition of that crime. See Descamps v. United States, 133 S.

Ct. 2276, 2292 (2013) (“Because of the mismatch in elements, a person convicted

under that statute is never convicted of the generic crime.”). Further, because

§ 130.30(1) contains a “single, ‘indivisible’ set of elements,” the modified

categorical approach is not applicable. Descamps, 133 S. Ct. at 2283.

      However, since Banos has been deported, he cannot be physically present

for resentencing as required by Federal Rule of Criminal Procedure 43(a)(3). We

therefore affirm Banos’s sentence “without prejudice to a later request by him, if

and when he should return to the United States or waive his right to be physically

present at resentencing, that his previous sentence be vacated and that he be


                                           5
resentenced” in accordance with this memorandum. See United States v. Aguilar-

Reyes, 723 F.3d 1014, 1018 (9th Cir. 2013).

      We need not and do not reach the remaining issues raised on appeal.

      AFFIRMED in part, and AFFIRMED without prejudice in part, with

instructions.




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