                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              AUG 28 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                            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.

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, and we affirm.




        *
             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 recently 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 his prior

conviction does not meet the generic definition of “statutory rape,” as that term is

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

Banos’s sole contention appears to be that 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). Estrada-Espinoza did not “overrule or undermine

Gomez-Mendez or Rodriguez-Guzman in any other way.” Id.




      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
      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.” Zamora-Ponce, 699 F.3d at 1119. Banos’s prior conviction under

§ 130.30(1) similarly 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, § 130.30(1) qualifies as

“statutory rape” under the generic federal definition of that crime, “because the

federal definition covers the ‘full scope of the conduct’ that” § 130.30(1)

prohibits.3 Id., 699 F.3d at 1120. Accordingly, the district court did not err in

concluding that Banos’s prior conviction qualified as a “crime of violence.”




      3
         We recognize that there is some confusion as to whether the generic
definition of statutory rape includes a 4-year age difference as an element. See
United States v. Gonzalez-Aparicio 663 F.3d 419, 427 (9th Cir. 2011); Zamorano-
Ponce, 699 F.3d at 1119 (noting that “[t]he generic federal definition may also
include a four-year-age-difference element[]”). In his opening brief, Banos did not
argue for reversal based on a 4-year age difference element in the generic
definition of statutory rape. Despite our order for supplemental briefing on this
issue, Banos fails in his response to cite any support for his blanket proposition that
most states require such a 4-year age difference. The government, on the other
hand, identifies at least 22 states which do not require such an age difference, and
our research suggests that several other states also may not require it as an element.
Because Banos failed to raise this issue and did not adequately respond in his
supplemental brief, we deem this argument waived and do not reach it here. See
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in a party’s opening brief.”).

                                          5
We need not and do not reach the remaining issues raised on appeal.

AFFIRMED.




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