                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-10488

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00733-FRZ-GEE

  v.
                                                 MEMORANDUM *
SANTOS MERCADO-ORTIZ, AKA
Santos Ortiz Mercado, AKA Santos
Mercado Ortiz,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.

       Defendant-Appellant Santos Mercado-Ortiz (“Mercado”) appeals the district

court’s decision to enhance his sentence following his conviction for illegal reentry

after deportation, in violation of 8 U.S.C. § 1326. The district court enhanced



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Mercado’s sentence under United States Sentencing Guidelines (“U.S.S.G.”)

§ 2L1.2, which provides a sixteen-level sentence enhancement for defendants

previously deported after “a conviction for a felony that is . . . a crime of violence,”

U.S.S.G. § 2L1.2(b)(1)(A), including “sexual abuse of a minor,” id. § 2L1.2 cmt.

n.1(B)(iii). The court held that Mercado’s prior conviction for third-degree child

molestation under Washington Revised Code § 9A.44.089 qualifies as “sexual

abuse of a minor” under the Guidelines. On appeal, Mercado argues that this

determination was plain error. We affirm.

       Were we reviewing the district court’s decision de novo, the question of

whether § 9A.44.089 qualifies as “sexual abuse of a minor” would be a difficult

one because of our subsequent decisions in United States v. Medina-Villa, 567 F.3d

507 (9th Cir. 2009), and Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009).

However, at sentencing, Mercado did not object to the district court’s

characterization of his child molestation offense as “sexual abuse of a minor.”

Thus, we review this determination for plain error. See Johnson v. United States,

520 U.S. 461, 466-67 (1997).1 Under this standard, “before an appellate court can

correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3)


       1
        We do not reach the issue of whether Mercado waived the argument that
the district court erred in holding that he is subject to the “crime of violence”
enhancement.

                                             2
that affect[s] substantial rights.” Id. (quotation marks omitted) (alteration in

original).

       In United States v. Turman, 122 F.3d 1167 (9th Cir. 1997), we held that

“[w]hen the state of the law is unclear at trial and only becomes clear as a result of

later authority, the district court’s error is perforce not plain . . . . We thus

conclude[d] that plain error . . . normally means error plain at the time the district

court made the alleged mistake.” Id. at 1170. There is an exception to this rule:

“[W]here the law at the time of trial was settled and clearly contrary to the law at

the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate

consideration.” Johnson, 520 U.S. at 468. When this exception does not apply,

the general rule applies—that is, when the law is unsettled at the time of the district

court’s ruling, “[w]e need only determine whether the . . . error was plain at the

time the district court made the alleged mistake.” Turman, 122 F.3d at 1170.

       Our review for plain error is governed by the precedents in existence at the

time of the district court’s decision, United States v. Baron-Medina, 187 F.3d 1144

(9th Cir. 1999), and Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)

(en banc). It was not settled at the time of the district court’s decision that

Mercado’s prior offense was “sexual abuse of a minor,” and therefore Johnson’s

exception does not apply and we may not take intervening case law—namely,


                                             3
Medina-Villa and Pelayo-Garcia—into account in determining whether the district

court’s decision was plainly erroneous. See Johnson, 520 U.S. at 468. Mercado’s

prior offense likely fails to satisfy the definition of “sexual abuse of a minor”

established in Estrada-Espinoza,2 so there was certainly room in our case law for

Mercado to argue that a statute punishing sexual activity with children under the

age of sixteen must “expressly prohibit[] conduct that causes physical or

psychological harm” in order to qualify as “sexual abuse of a minor.” Pelayo-

Garcia, 589 F.3d at 1014 (quotation marks omitted). Because the law was still in

development when the district court issued its decision, “this case falls under the

general rule, not the Johnson exception. We need only determine whether

the . . . error was plain at the time the district court made the alleged mistake.”

Turman, 122 F.3d at 1170. In other words, we must determine whether it was

“plain” at the time of the district court’s decision that Mercado’s prior offense was

not “sexual abuse of a minor.”

      The court’s error was not plain under Estrada-Espinoza and Baron-Medina.

Mercado’s prior offense probably does not satisfy Estrada-Espinoza’s definition of

      2
        In Estrada-Espinoza, we added to the definition of “sexual abuse of a
minor” by reference to the federal statutory rape statute, 18 U.S.C. § 2243, and
held that under this statute, “sexual abuse of a minor” contains “four elements: (1)
a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages
of 12 and 16; and (4) an age difference of at least four years between the defendant
and the minor.” 546 F.3d at 1152.

                                            4
“sexual abuse of a minor.” However, Estrada-Espinoza did not overrule Baron-

Medina, and we have recognized that Estrada-Espinoza did not “hold that § 2243

provides the only relevant definition of the term ‘sexual abuse of a minor.’”

Medina-Villa, 567 F.3d at 515. Rather, the federal generic definition of “sexual

abuse of a minor” first established in Baron-Medina provides a second,

independent basis for a conviction to qualify as “sexual abuse of a minor” under

the Guidelines. See id. at 515-16 (“We . . . reject the proposition that § 2243

defines the universe of sexual offenses contemplated by U.S.S.G. § 2L1.2’s term

‘sexual abuse of a minor’”); Pelayo-Garcia, 589 F.3d at 1013 (noting that “[w]e

have set out two different generic definitions of ‘sexual abuse of a minor,’” namely

§ 2243(a) and the generic definition).

      Thus, the question is whether Mercado’s prior offense plainly fails to satisfy

the generic definition of “sexual abuse of a minor” set forth in Baron-Medina.

Given Baron-Medina’s expansive interpretation of the term “sexual abuse of a

minor,” it could not have been “plain” to the district court at the time of Mercado’s

sentence that Mercado’s prior offense did not qualify as “sexual abuse of a minor.”

Baron-Medina established only that sexual conduct with “young children” is per se

abusive, and that children under fourteen are “young children” for these purposes.

187 F.3d at 1147. Thus, the district court’s determination that Mercado’s sexual


                                          5
conduct with a child under the age of sixteen was “sexual abuse of a minor” was

not plainly erroneous under the case law at the time.

      AFFIRMED.




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