                                                                   FILED
                            FOR PUBLICATION                        DEC 23 2013

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



                         FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                   No. 12-10132

           Plaintiff - Appellee,            D.C. No. 4:11-cr-02358-DCB-
                                            DTF-1
  v.

ISRAEL ARNOLDO CACERES-OLLA,                OPINION

           Defendant - Appellant.


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

                            Argued July 8, 2013
                        Submitted September 18, 2013
                          San Francisco, California

Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.

                 Opinion by Judge BERZON, Circuit Judge:
      Israel Arnoldo Caceras-Olla pleaded guilty, under 8 U.S.C. § 1326, to

unlawful reentry into the United States. Sentences for that offense are governed by

United States Sentencing Guideline (“Guideline”) 2L1.2. This case presents the

question whether a prior felony conviction under Florida Statutes section

800.04(4)(a) for lewd or lascivious battery qualifies as a “crime of violence” for

purposes of that Guideline. We hold that it does not, because the crime does not

constitute a “forcible sex offense” or “statutory rape” within the meaning of the

applicable Guideline. Because the district court concluded otherwise, we vacate

Caceras-Olla’s sentence and remand on a closed record for resentencing.

                                          I.

      The base offense level for a violation of § 1326 is eight. See U.S.S.G.

§ 2L1.2(a). If the defendant was previously deported after being convicted of a

felony that constitutes a “crime of violence,” the offense level goes up by sixteen

levels. Id. § 2L1.2(b)(1)(A)(ii).

      The presentence report (“PSR”) concluded that Caceres-Olla’s prior

conviction for lewd or lascivious battery was a “forcible sex offense” and,

consequently, qualified as a “crime of violence” under Guideline

2L1.2(b)(1)(A)(ii). Caceres-Olla objected, arguing that his prior conviction did not

constitute a “forcible sex offense,” because the Florida statute did not require a


                                           2
non-consensual act and the Guideline’s reference to “consent . . . [deemed] not

legally valid,” U.S.S.G. 2L1.2 cmt. n.1(B)(iii), was not intended to apply to

statutes criminalizing sexual activity due only to the victim’s age. The district

court disagreed, applied the recommended enhancement, and sentenced Caceres-

Olla to a 46-month prison term. Caceres-Olla timely appealed.

      We review de novo the district court’s decision that Caceres-Olla’s prior

conviction qualifies for a sentencing enhancement under Guideline 2L1.2(b). See

United States v. Marquez-Lobos, 697 F.3d 759, 761 (9th Cir. 2012).

                                          II.

      For the purpose of Guideline 2L1.2(b)(1)(A)(ii), a “crime of violence” is

defined as

      any of the following offenses under federal, state, or local law:
      murder, manslaughter, kidnapping, aggravated assault, 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), statutory rape, sexual abuse of a minor,
      robbery, arson, extortion, extortionate extension of credit, burglary of
      a dwelling, 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) (emphasis added). Caceres-Olla was convicted

under Florida law of “[l]ewd or lascivious battery,” which prohibits “[e]ngag[ing]

in sexual activity with a person 12 years of age or older but less than 16 years of


                                           3
age.” Fla. Stat. § 800.04(4)(a) (2008). The government contends that Caceres-

Olla’s conviction constitutes a “crime of violence” because it qualifies as either a

“forcible sex offense” or “statutory rape.”1 We begin with the former.

                                          A.

      To determine whether section 800.04(4) qualifies as a “crime of violence,”

we apply the framework set forth in Taylor v. United States, 495 U.S. 575 (1990).

Taylor established a “formal categorical approach,” id. at 600, whereby sentencing

courts “compare the elements of the statute of conviction with a federal definition

of the crime to determine whether conduct proscribed by the statute is broader than

the generic federal definition.” United States v. Valencia-Barragan, 608 F.3d

1103, 1107 (9th Cir. 2010) (citations and quotation marks omitted). “To constitute

an ‘element’ of a crime, the particular factor in question needs to be ‘a “constituent

part” of the offense [that] must be proved by the prosecution in every case to

sustain a conviction under a given statute.’” United States v. Beltran-Munguia,

489 F.3d 1042, 1045 (9th Cir. 2007) (citations omitted) (alteration and emphasis in

      1
        In his opening brief, Caceras-Olla maintains that his conviction did not
constitute “sexual abuse of a minor,” another enumerated “crime of violence”
within Guideline 2L1.2(b)(1)(A), because section 800.04(4)(a) prohibits sexual
conduct with minors of 14 years and older and does not require an element of
“abuse.” The government did not respond to this argument, and so has waived
reliance on that “crime of violence” variant. See United States v. Castillo-Marin,
684 F.3d 914, 919 (9th Cir. 2012).

                                           4
original). If the statute of conviction “sweeps more broadly than the generic crime,

a conviction under that law cannot count as [a qualifying] predicate, even if the

defendant actually committed the offense in its generic form.” Descamps v. United

States, 133 S. Ct. 2276, 2283 (2013).2

      The Sentencing Guidelines were amended in 2008 to

      include a more detailed description of the “forcible sex offenses” that
      would constitute crimes of violence. Rather than simply listing
      “forcible sex offenses” as a crime of violence, the new definition lists
      “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).”

United States v. Espinoza-Morales, 621 F.3d 1141, 1146 (9th Cir. 2010) (quoting

U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)). After explaining that “forcible sex offenses”

include crimes in which there may be “‘assent in fact but no legally valid consent

. . . .’” U.S.S.G. app. C, amend. 722 (citations omitted), the Sentencing

Commission cited three examples of scenarios drawn from past cases that the

amendment was intended to address, including situations in which consent is

procured by (1) threats “to reveal embarrassing secrets” or “fire a subordinate”; (2)



      2
       The Supreme Court has also “recognized a ‘narrow range of cases’ in
which sentencing courts—applying . . . the ‘modified categorical approach’—may
look beyond the statutory elements to ‘the charging paper and jury instructions’” to
determine whether the defendant’s conviction necessarily involved facts
corresponding to the generic federal offense. Id. at 2283–84.

                                          5
coercion by a “public servant,” “member of the clergy,” or “mental health service

provider”; or (3) exploitation of a known “mental disease or defect” or

“intoxication.” Id. (citations omitted).

          Under the amended Guidelines, a “forcible sex offense” thus 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.” U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii). A plain reading of Florida’s “[l]ewd

and lascivious battery” offense, Fla. Stat. § 800.04(4)(a), makes clear that lack of

consent is not an “element” of the crime. As with statutory rape “[i]n most

jurisdictions,” section 800.04(4)(a) “is a strict liability crime.” United States v.

Gomez-Mendez, 486 F.3d 599, 604 (9th Cir. 2007). It criminalizes “[e]ngag[ing]

in sexual activity with a person 12 years of age or older but less than 16 years of

age,” regardless of whether the victim, in fact, consents. Fla. Stat. §§ 800.04(2),

(4)(a).

          Caceres-Olla’s conviction could only be a “forcible sex offense,” therefore,

if the victim’s “consent . . . is [deemed] not legally valid, such as where consent to

the conduct is involuntary, incompetent, or coerced.” U.S.S.G. 2L1.2 cmt.

n.1(B)(iii). The government contends that section 800.04(4) is categorically a

“forcible sex offense” under that provision, because consent is not a defense to the


                                             6
crime under Florida law. See Fla. Stat. § 800.04(2) (“Neither the victim’s lack of

chastity nor the victim’s consent is a defense to the crimes proscribed by this

section.”).

      We disagree for three reasons. First, the absence of a consent defense to

statutory rape is analytically distinct from situations in which a victim’s

“consent . . . is [deemed] not legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced.” U.S.S.G. 2L1.2 cmt. n.1(B)(iii). The three

examples cited by the Sentencing Commission, see infra at pp. 5–6, involve

instances in which the victim does not in fact have the state of mind of willing

acquiescence — either because her consent is coerced, or because her actual state

of mind is such that she is not capable of willingly consenting, as in the case of

incompetence or intoxication. We have acknowledged, however, that “the

assumption that a minor’s legal incapacity implies that the proscribed sexual

intercourse is non-consensual” does not always “hold true[.]” Valencia v.

Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006). Some minors are “able to engage

in sexual intercourse voluntarily, despite being legally incapable of consent.” Id.

In other words, because statutory rape is a strict liability crime, the minor’s actual

state of mind does not matter, nor does the minor’s actual capacity for mature

deliberation.


                                           7
      Application of the familiar ejusdem generis canon suggests that the general

term “consent . . . not legally valid,” U.S.S.G. 2L1.2 cmt. n.1(B)(iii), should be

“construed to embrace only [circumstances] similar in nature to those

[circumstances] enumerated” in the phrase that follows, Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 114–15 (2001) (citation and quotation marks omitted). A

state statute that for policy reasons treats a minor’s consent as irrelevant does not

necessarily render that minor’s conduct similar to conduct that is “involuntary,

incompetent, or coerced[,]” all of which depend on the specific circumstances of

the crime and the victim. Instead, statutory rape offenses outlaw conduct based on

the minor’s age alone; however voluntary and competent the minor, her consent

will not be a defense to the crime.

      Second, reading “forcible sex offenses” to encompass a conviction under

section 800.04(4) on the theory that the victim’s consent is “involuntary” or

“incompetent” by virtue of a statute criminalizing sexual activity on the basis of

the victim’s age would render superfluous the inclusion of “statutory rape” and

“sexual abuse of a minor” as other enumerated offenses constituting “crime[s] of

violence.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).

      “The term ‘statutory rape’ is ordinarily, contemporarily, and commonly

understood to mean the unlawful sexual intercourse with a minor under the age of


                                           8
consent specified by state statute.” Gomez-Mendez, 486 F.3d at 603. If all sex

offenses “where consent . . . is not legally valid” on the basis of age are, by

definition, “forcible,” there would be no need to separately enumerate “statutory

rape.” See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). The same would be true of “sexual

abuse of a minor,” whereby “we define the term ‘abuse’ . . . in light of the age of

the victim in question,” United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir.

2009), and have held that “[s]exual conduct with younger children is per se

abusive[,]” Valencia-Barragan, 608 F.3d at 1107.

      “A statute should be construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or insignificant.” Corley v.

United States, 556 U.S. 303, 314 (2009) (citations and quotation marks omitted).

This “basic interpretive canon[ ,]” id., applies to the Sentencing Guidelines. See

United States v. Wenner, 351 F.3d 969, 974–75 (9th Cir. 2003). Yet, when asked

at argument, the government could identify no circumstance in which a “statutory

rape” would not also be a “forcible sex offense” under its interpretation. Nor can

we. “It is our duty to give effect, if possible, to every clause and word of a

statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001) (citations and quotation

marks omitted). We are “reluctan[t] to treat . . . as surplusage,” id., the Guidelines’




                                           9
enumeration of statutory rape and sexual abuse of a minor as separate crimes of

violence.

      Third, deeming as “forcible sex offenses” all sexual acts with persons under

the age of majority would ignore contemporary limitations on the concept of

statutory rape. In particular, there has been a move among the states to reform

statutory rape laws in cases involving partners of a similar age — for instance,

foreclosing prosecutions of 16-year-olds for heavy petting with 14-year-olds, or

reducing sentences of 19-year-olds for sexual intercourse with 17-year-olds. See,

e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual

Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol’y 373, 390–91 (2003). In

recognition of this growing consensus, we have held that, for federal purposes, an

age difference of at least four years is an element of “sexual abuse of a minor,”

Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008) (en banc), and

of “statutory rape” as well, United States v. Gomez, 732 F.3d 971, 988–89 (9th Cir.

2013).

      Reading the term “forcible sex offenses” — which requires no age

difference — to encompass all sexual conduct with minors, would obliterate those

limitations. A so-called “Romeo-and-Juliet offender[ ,]” Doe v. Mich. Dep’t of

State Police, 490 F.3d 491, 503 (6th Cir. 2007), could be deemed to have been


                                         10
convicted of a “forcible sex offense” by virtue of the victim’s age, despite being

expressly and intentionally excluded from the generic federal definitions of

“statutory rape” and “sexual abuse of a minor.”

      For these reasons, we hold that a conviction under section 800.04(4) is not

categorically a “forcible sex offense.”

      Our interpretation accords with that of the Fourth Circuit, which recently

addressed this issue in United States v. Rangel-Castaneda, 709 F.3d 373, 376 (4th

Cir. 2013) (concerning Tennessee’s prohibition on “sexual penetration . . . when

the victim is at least thirteen (13) but less than eighteen (18) years of age and the

defendant is at least ten (10) years older than the victim.”). “Reading the various

portions of the crime-of-violence enhancement in context,” the Fourth Circuit

concluded that “the Sentencing Commission purposely juxtaposed the neighboring

terms ‘forcible sex offense[ ]’ and ‘statutory rape,’ with the former intended to

connote rape or other qualifying conduct by compulsion and the latter intended to

connote rape on account of the victim’s age.” Id. at 380. Further, the “Guidelines’

reference . . . to consent that is ‘not legally valid’ by virtue of being ‘involuntary,

incompetent, or coerced’ was intended simply to clarify that the requisite

compulsion need not be physical in nature.” Id. (citing U.S.S.G. app. C, amend.

722, at 302–03). Thus, “the fact that Tennessee law renders the consent of a


                                           11
statutory rape victim formally irrelevant does not mean that the offense necessarily

requires sexual conduct that is ‘forcible’ . . .—that is, involving actual

compulsion.” Id.

      Judge Tashima expressed a similar view in United States v. Gonzalez-

Aparicio, 663 F.3d 419, 437 n.5 (9th Cir. 2011) (Tashima, J., dissenting)

(concerning Arizona’s statute which criminalizes “sexual intercourse or oral sexual

contact with any person who is under eighteen years of age”).3 Responding to the

same argument advanced by the government here, Judge Tashima asked: “if

statutory rape crimes are ‘forcible sex offenses’ simply because the minor’s

consent is invalid under state law, then why does the commentary list statutory

rape separately?” Id. He concluded that “[t]he parenthetical language” describing

invalid consent “does not target statutory rape[,]” because such a reading “would

render the term ‘statutory rape’ superfluous.” Id. (emphasis in original).

      A conviction under section 800.04(4) is not categorically a “forcible sex

offense.” Nor is section 800.04(4) a “divisible statute” with respect to the element

of consent, for which the modified categorical approach may be of “assist[ance] . .



      3
        The Gonzalez-Aparicio majority held that defendant’s conviction
constituted “statutory rape” under the Guidelines, and thus did not reach the
question, addressed in Judge Tashima’s dissent, whether the conviction separately
constituted a “forcible sex offense.” Id. at 433 & n.4.

                                           12
. in identifying the defendant’s crime of conviction.” Descamps, 133 S. Ct. at

2285, 88.

      We therefore proceed to consider the government’s alternative argument.

                                          B.

      Caceres-Olla’s prior conviction does not qualify as a “crime of violence”

under Guideline 2L1.2(b)(1)(A)’s “statutory rape” alternative. Gomez, 732 F.3d

988, held that the generic definition of “statutory rape” includes “‘an age

difference of at least four years between the defendant and the minor.’” Section

800.04(4) does not have an age difference element. A conviction under section

800.04(4) is therefore not categorically “statutory rape.” “Because the statute is

missing an element of the[] generic crime[], our inquiry ends here—we do not

undertake a modified categorical analysis.” Id. at 989.

                                         III.

      “As a general rule, when the district court errs in sentencing, we should

vacate and ‘remand for re-sentencing on an open record — that is, without

limitation on the evidence that the district court may consider.’”

Espinoza-Morales, 621 F.3d at 1152 (quoting United States v. Matthews, 278 F.3d

880, 885 (9th Cir. 2002) (en banc)). “We may depart from this general rule,

however, when ‘additional evidence would not [change] the outcome’ or when


                                          13
‘there was a failure of proof after a full inquiry into the factual question at issue.’”

Id. (alteration in original).

       The government conceded at oral argument that it produced all available

judicially noticeable facts to support its position that Caceres-Olla’s conviction

constituted a “crime of violence.” We therefore remand for resentencing on the

existing record.

       VACATED AND REMANDED.




                                           14
                                   COUNSEL

Erica L. Seger (argued), Assistant United States Attorney; John S. Leonardo,
United States Attorney; Christian M. Cabanillas, Appellate Chief, Tucson,
Arizona, for Plaintiff-Appellee.

M. Edith Cunningham (argued) and Christopher R. Kilburn, Assistant Federal
Public Defender; Jon M. Sands, Federal Public Defender, Tucson, AZ, for the
Defendant-Appellant Israel Arnoldo Caceres-Olla.




                                        15
                                                                              FILED
United States v. Caceres-Olla, No. 12-10132                                    DEC 23 2013

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

FERNANDEZ, Circuit Judge, concurring:

      I concur in the result, but not in all of the reasoning of the majority opinion.

I concur in part I and in the portion of part II before IIA First. As to part IIA First

(majority opinion at pages 7 to 8), I do not agree. The guideline definition

indicates that it applies to forcible sex offenses, which include those where

“consent . . . is not legally valid.” USSG §2L1.2, comment. (n.1(B)(iii)) (Nov.

2011). We have declared that minors are “legally incapable of consent.” Valencia

v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006); see also Estrada-Espinoza v.

Mukasey, 546 F.3d 1147, 1154 (9th Cir. 2008) (en banc). As I see it, if a child is

“legally incapable of consent,” that child’s “consent . . . is not legally valid,” and

no amount of judicial sortilege will make it so.

      That said, I do agree with the discussion in parts IIA Second (majority

opinion at pages 8 to 10, insofar as it discusses statutory rape) and Third (majority

opinion at pages 10 to 11). Moreover, I agree with part IIB. See United States v.

Gomez, 732 F.3d 971, 987–89 (9th Cir. 2013). Finally, because the government

has conceded that it has no more evidence to produce, I agree with part III.

      Thus, I respectfully concur in the result.
