                                                                              FILED
                           NOT FOR PUBLICATION                                APR 08 2014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. 13-10028

              Plaintiff - Appellee,              D.C. No. 4:12-cr-01082-DCB-
                                                 BGM-1
  v.

JOSE SALVADOR DIAZ-BENITEZ,                      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 10, 2014
                           San Francisco, California

Before: WALLACE, McKEOWN, and GOULD, Circuit Judges.

       Defendant-Appellant Jose Diaz-Benitez appeals his 46-month sentence for

illegal reentry after deportation in violation of 8 U.S.C. § 1326. Diaz-Benitez

challenges the district court’s application of a 16-level enhancement under U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A). Because Diaz-Benitez’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
argument on appeal materially differs from his argument at sentencing, we review

for plain error. See United States v. De La Fuente, 353 F.3d 766, 769 & n.1 (9th

Cir. 2003); see also United States v. Olano, 507 U.S. 725, 731-32 (1993). We have

jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

      Diaz-Benitez contends that his prior crime of conviction—third-degree child

molestation in Washington—is not categorically a “crime of violence” for purposes

of the Sentencing Guidelines, and that the district court violated Taylor v. United

States, 495 U.S. 575 (1990), by using it to enhance his sentence. See Wash. Rev.

Code § 9A.44.089; U.S.S.G. § 2L1.2(b)(1)(A).

      The Sentencing Guidelines define a “crime of violence” as a “forcible sex

offense[] (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 . . . 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). Third-degree child molestation in Washington is not a “forcible

sex offense[]” because it does not require lack of consent or compulsion, physical

or otherwise. See United States v. Caceres-Olla, 738 F.3d 1051, 1054-57 (9th Cir.

2013); see also Wash. Rev. Code § 9A.44.089. Nor does it qualify as a “crime of


                                           2
violence” under any other definition provided by the Sentencing Guidelines. See

United States v. Medina-Villa, 567 F.3d 507, 514-16 (9th Cir. 2009) (statutory

rape); see also United States v. Gomez, 732 F.3d 971, 989 (9th Cir. 2013) (sexual

abuse of a minor); United States v. Espinoza-Morales, 621 F.3d 1141, 1145 & n.4

(9th Cir. 2010) (any other offense that has as an element the use, attempted use, or

threatened use of physical force against the person of another).1

      The district court’s conclusion that Diaz-Benitez’s predicate crime of

conviction qualified as a “crime of violence” may not have been plain error at the

time of the district court’s decision. But whether a particular error is “plain,” the

United States Supreme Court has told us, is judged not on the law at the time of

trial or sentencing, but on the law at the time of appellate review. See Henderson

v. United States, 133 S. Ct. 1121, 1127 (2013). Under our law now, third-degree

child molestation in Washington is not categorically a “crime of violence” for

purposes of U.S.S.G. § 2L1.2(b)(1)(A). See Caceres-Olla, 738 F.3d at 1054-57.

Because United States v. Caceres-Olla’s reasoning is persuasive on this point, we

must hold that the district court’s conclusion to the contrary was error. And



      1
       Because Washington’s third-degree child molestation statute is indivisible,
the modified categorical approach is inapplicable, and the underlying facts of Diaz-
Benitez’s prior conviction are irrelevant. See Descamps v. United States, 133 S.
Ct. 2276, 2281-83 (2013); see also Wash. Rev. Code § 9A.44.089.

                                           3
because application of the 16-level enhancement “may have led to a sentence that

was . . . longer than necessary,” see United States v. Joseph, 716 F.3d 1273, 1280

(9th Cir. 2013), the district court’s error was plain. See United States v. Castillo-

Marin, 684 F.3d 914, 918 (9th Cir. 2012); see also Olano, 507 U.S. at 734. The

district court on remand should sentence Diaz-Benitez without the 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

      VACATED AND REMANDED.




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