                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 10 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50407

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01821-W-1

  v.
                                                 MEMORANDUM*
HECTOR CEBALLOS-CASTILLO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                              Submitted June 6, 2014**
                                Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.***

       Over Ceballos-Castillo’s objection, the district court enhanced by sixteen

levels Ceballos-Castillo’s sentence for attempted reentry after removal. The

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
district court applied the enhancement because it concluded that Ceballos-

Castillo’s prior conviction under Oregon’s third degree rape statute, Or. Rev. Stat.

§ 163.355, was a categorical match for the generic federal definition of statutory

rape and, therefore, a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A).

      While this appeal was pending, this court clarified that the generic federal

definition of “statutory rape” includes as an element a four-year age difference

between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th

Cir. 2013), as amended United States v. Gomez, -- F.3d --, 2014 WL 1623725 (9th

Cir. April 24, 2014). Because Oregon’s statutory rape law does not include this

element, it is broader than the federal definition. Therefore, we vacate Ceballos-

Castillo’s sentence and remand for resentencing.

      Vacated and Remanded.




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