                                                                           FILED
                           NOT FOR PUBLICATION                             APR 16 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10049

              Plaintiff - Appellee,              D.C. No. 4:11-cr-03833-CKJ-
                                                 BPV-1
  v.

DOMITILO MIRANDA-HERRERA,                        MEMORANDUM*
AKA Luis Miranda-Herrera, AKA
Domitilo Mirando-Herrera,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted April 8, 2014
                            San Francisco, California

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

       Domitilo Miranda-Herrera (“Miranda-Herrera”) challenges the district

court’s application of a sixteen-level sentencing enhancement based on his prior




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction under Minnesota Statutes § 609.343(1)(b). We vacate

Miranda-Herrera’s sentence and remand for resentencing.

       1.     We review Miranda-Herrera’s sentencing challenge de novo. See

United States v. Ayala-Nicanor, 659 F.3d 744, 746 (9th Cir. 2011). Although plain

error review is generally appropriate where a party—like Miranda-Herrera—failed

to object to the application of a sentencing enhancement before the district court,

see United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir. 2010), “we are

not limited to this standard of review when we are presented with a question that

‘is purely one of law’ and where ‘the opposing party will suffer no prejudice as a

result of the failure to raise the issue in the trial court,’” United States v.

Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (quoting United States v.

Echavarria-Escobar, 270 F.3d 1265, 1267–68 (9th Cir. 2001)). The issue raised

by Miranda-Herrera involves a pure question of law—whether a conviction under

§ 609.343(1)(b) constitutes a “crime of violence” under U.S. Sentencing

Guidelines Manual § 2L1.2(b)(1)(A)—“and the government, which has fully

briefed the issue, suffers no prejudice.” Saavedra-Velazquez, 578 F.3d at 1106.

       2.     The district court properly applied the modified categorical approach.

Under § 609.343(1), an individual may be convicted of criminal sexual conduct in

the second degree if any one of eight separate sets of circumstances (listed in


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subsections (a) through (h)) is found to exist. The statute thus “lists multiple,

alternative elements, and so effectively creates ‘several different . . . crimes.’”

Descamps v. United States, 133 S. Ct. 2276, 2285 (2013) (quoting Nijhawan v.

Holder, 557 U.S. 29, 41 (2009)) (alteration in original). The district court

therefore correctly employed the modified categorical approach “to find out which

[alternative crime] the defendant was convicted of.” Id. Moreover, both parties

agree that Miranda-Herrera specifically pleaded guilty to violating § 609.343(1)(b).

      3.     A conviction under § 609.343(1)(b) does not categorically constitute a

forcible sex offense. Under the U.S. Sentencing Guidelines, a forcible sex offense

“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.’” United States v. Caceres-Olla, 738 F.3d 1051, 1054–55 (9th Cir.

2013) (quoting U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii)).

Under § 609.343(1)(b), however, “consent to the act by the complainant is [not] a

defense.” Because lack of actual or legally valid consent is not an element of §

609.343(1)(b)—rather, any proffered consent is irrelevant—the statute sweeps

more broadly than the generic federal crime of forcible sex offense. See

Caceres-Olla, 738 F.3d at 1055 (rejecting the government’s reliance on the fact




                                            3
that, under Florida Statutes § 800.04(4)(a), “consent is not a defense to the crime”

for purposes of considering the generic federal crime of forcible sex offense).

      The government attempts to distinguish Caceres-Olla, arguing that §

609.343(1)(b) effectively includes lack of consent as an element of the offense

because “the immaturity of the victim combined with the ‘position of authority’ of

the defendant over the victim” necessarily renders any consent on the part of the

victim “involuntary, incompetent or coerced.” We disagree. First, reliance on a

victim’s immaturity “on the theory that the victim’s consent is ‘involuntary’ or

‘incompetent’ [due to] the victim’s age would render superfluous the [U.S.

Sentencing Guidelines’] inclusion of ‘statutory rape’ and ‘sexual abuse of a minor’

as other enumerated offenses constituting ‘crime[s] of violence.’” Id. (quoting

U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii)) (first and second

alterations added, third alteration in original). Second, even in the context of

victims between the ages of thirteen and sixteen, § 609.343(1)(b)’s requirement

that the actor be “in a position of authority over the complainant” does not per se

render any proffered consent by the victim “involuntary, incompetent or coerced.”

Section 609.343(1)(b) only requires that the actor be “in a position of authority” at

the time of the sexual contact, and not that the actor abuse, rely on, or leverage his

or her position of authority. Consequently, we cannot say that, as a categorical


                                           4
matter, § 609.343(1)(b) only encompasses situations where a “victim does not in

fact have the state of mind of willing acquiescence.” Caceres-Olla, 738 F.3d at

1055.

        4.    A conviction under § 609.343(1)(b) also does not categorically

constitute sexual abuse of a minor. The statute does not qualify under the test

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

banc), as it lacks the element of a “sexual act,” as defined in 18 U.S.C. § 2246(2).

See United States v. Castro, 607 F.3d 566, 569–70 (9th Cir. 2010). Under 18

U.S.C. § 2246(2), a “‘sexual act’ requires, at a minimum, an intentional touching,

not through the clothing, of a minor’s genitalia.” Id. at 570. For purposes of §

609.343(1)(b), however, the requirement of “sexual contact” can be met through

the intentional “touching of the clothing covering the immediate area of the

intimate parts” of the complainant. See Minn. Stat. § 609.341(11)(a)(iv).

        Neither does the statute qualify under the test articulated in United States v.

Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), as it lacks the element of abuse.

See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013–14 (9th Cir. 2009). We are

unpersuaded by the government’s argument that “[a] sexual offense involving a

minor victim committed by someone in a position of authority constitutes ‘abuse’”

for purposes of the generic federal crime of sexual abuse of a minor under


                                            5
Baron-Medina. Given the expansive definitions of “position of authority” and

“sexual contact” under Minnesota law, see Minn. Stat. § 609.341(10), (11), we

cannot say that “physical or psychological harm in light of the age of the victim in

question” will result in all cases, Pelayo-Garcia, 589 F.3d at 1014 (quoting

Estrada-Espinoza, 546 F.3d at 513).

      5.     The district court’s erroneous application of the sixteen-level

sentencing enhancement was not harmless. See United States v. Munoz-Camarena,

631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam) (finding no harmlessness where,

“had the district court started with the correct Guidelines range of 24 to 30 months,

rather than 33 to 41 months, it may have arrived at a different sentence”); see also

id. at 1030 n.5.

      VACATED AND REMANDED.




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