Free Reply - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2753 5 Donna Lee Elm, #12127 Asst. Federal Public Defender 6 Attorney for Defendant [email protected] 7 8 9 10 11 12 13 14 15 16 17 18 vs. Juan Perez-Robles, Defendant. Juan Perez-Robles, through undersigned counsel, respectfully replies to United States of America, Plaintiff, No. CR-03-1267-PHX-FJM DEFENDANT'S REPLY TO GOVERNMENT'S SECOND SENTENCING MEMORANDUM IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

19 the Government's final response to his Sentencing Memorandum, addressing the 20 merits. The Government's position is logically and legally flawed, and United States 21 v. Lopez-Soliz, 447 F.3d 1201 (9th Cir. 2006) as well as Valencia v. Gonzales, 439 22 F.3d 1046 (9th Cir. 2006) control the outcome. The Court can no longer treat Mr. 23 24 25 26 Perez-Robles's prior California statutory rape conviction as a "crime of violence" for purposes of his re-sentencing. As a result, the range tentatively proposed by the Probation Department is correct. Once again, Mr. Perez-Robles should receive the

27 "low end" of his Guidelines range, i.e., 24 months in prison, as his "reasonable" 28 sentence. ...

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1 Central Argument of the Taylor Analysis 2 The Government correctly concedes that, under the Taylor categorical 3 analysis, the statute in question is not categorically a "crime of violence" for United 4 States Sentencing Guidelines purposes. See Second Memorandum at 3. 5 However, the Government seeks to distinguish Mr. Perez-Robles's case 6 from Lopez-Solis by arguing that his offense constitutes a "crime of violence" under 7 8 the modified categorical approach. For that, the Government must adduce evidence 9 from the facts at the change of plea, admissions during the change of plea proceeding 10 or in the plea agreement, or statements made during sentencing ­ or other evidence 11 (as opposed to allegations) ­ which reflect that this would constitute a "crime of 12 violence." Shepard v. United States, 544 U.S. 13 (2005). The Government advances 13 two pieces of evidence: the Information and the prison abstract ("pen pack"). Their 14 point is that the girl was sixteen and Mr. Perez-Robles was twenty-three1 when this 15 16 occurred, basing the argument on the age differential alone. With no actual evidence 17 of violence or force, the Government asks the Court to infer it as a matter of law. 18 That does occur, of course, when the crime is one where a young 19 teenager is the victim of consensual sexual relations with an older individual. This is 20 discussed extensively in Lopez-Solis regarding the Tennessee statutory rape statute. 21 22 23 24 26 27 Mr. Perez-Robles's age was not mentioned in the evidence submitted by 28 the Government ­ though ultimately, it is not material.
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Statutory rape of seventeen-year-olds in Tennessee does not permit a finding that that was a "crime of violence." The Government, apparently seizing upon that particular age scheme, therefore contends that having a sixteen-year-old victim (in Mr. Perez-

25 Robles's case) would necessarily mean that his prior would be a "crime of violence."

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Nonetheless, the Tennessee statute in Lopez-Solis applied solely to

2 seventeen-year-olds, so the discussion in that opinion was limited to the effects of 3 consensual sex on that age group. Where does the Ninth Circuit stand on the age cut4 5 6 7 8 off for "crime of violence" in statutory rape cases? The Lopez-Solis Court recounted its precedent: This circuit has consistently held that statutory rape laws prohibiting sexual contact with a minor under sixteen proscribe conduct constituting `sexual abuse of a minor.'

9 Lopez-Solis at 1206 (citing United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 10 (9th Cir. 2003)). That is consistent with United States v. Asberry, 394 F.3d 712, 71711 18 (9th Cir. 2005), holding that a conviction of statutory rape of a victim under the 12 age of sixteen is categorically a "crime of violence." The Asberry Court went on to 13 clarify: "Sexual intercourse with adults poses serious potential risks of injury to 14 adolescents of age fifteen and younger." Id. (emphasis supplied). Hence consensual 15 16 relations with a victim older than fifteen does not constitute a "crime of violence" as 17 a matter of law. Because the victim in Mr. Perez-Robles's prior case was sixteen at 18 the time, his crime is not a"crime of violence." 19 The Government additionally argues that the victim's age of sixteen, 20 combined with an age differential of seven years, constitutes a "crime of violence." 21 This age disparity argument was also advanced by the Government in Valencia. 22 Valencia was forty-two at the time he had consensual relations with a minor ­ posing 23 a far more substantial age gap than is alleged in Mr. Perez-Robles's case. The Ninth 24 25 Circuit rejected considering that fact in its analysis. Valencia, 439 F.3d at 1054 26 (noting that it was confined to the records of the convicting court ­ which, as in Mr. 27 Perez's case, did not reflect what his age was). Nevertheless, even if that fact had 28
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1 been part of Mr. Perez-Robles's prior charges, the Valencia Court held that an 2 increase in the age of the perpetrator vìs-á-vìs the child, even though it is morally 3 more repugnant, does not further increase the risk that force would be used; instead, 4 5 6 7 the possibility of seduction or guile (rather than force) is more likely from an older man. Nor has the Government advanced any theory or evidence indicating that

8 there was actual force or violence exercised by Mr. Perez-Robles against his lover. 9 Indeed, one would expect such conduct (if evidenced to police) to result in charges 10 reflecting force or lack of consent ­ something that did not occur in charging his case. 11 12 13 14 15 Consequently, neither the categorical nor modified categorical approach would result in Mr. Perez-Robles's 1990 statutory rape conviction being considered a "crime of violence" under the United States Sentencing Guidelines. Lopez-Solis; Valencia; Asberry.

16 Argument that Dismissed Charges Can Be Used The Government also argues that Mr. Perez-Robles was charged with 17 18 an offense called "child stealing" under the California Penal Code. However, he was 19 patently not convicted of that, nor did he admit to that. Pursuant to Shepard, the 20 Court cannot rely upon that as evidence to enhance his sentence. But even if the 21 Court were concerned that there had been some violent "stealing" involved, it should 22 be relieved to know that that statute was in fact entitled: "noncustodial persons, 23 detainment or concealment of child from legal custodian," and criminalizes when 24 25 person without custody rights keeps a child from its parents. 26 ... 27 ... 28
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1 Argument Seeking to Distinguish Valencia 2 The Government attempts to distinguish Valencia, suggesting that its 3 holding does not apply to "crimes of violence" as defined under the United States 4 Sentencing Guidelines. See Second Memorandum at 4. That point could have been 5 arguable before the Lopez-Solis Court repeatedly incorporated the Valencia holding 6 into its opinion, see Lopez-Solis, 447 F.3d at 1207, 1210, inter alia, but not now. 7 8 Argument that Valencia Applies to a Different Statute 9 The Government argues that, regardless, Valencia could not apply to Mr. 10 Perez-Robles's case because Valencia was convicted of violating California Penal 11 Code § 261.5(c), while Mr. Perez-Robles was convicted of violating California Penal 12 Code § 261.5. The 1997 version of § 261.5 that Valencia had been convicted under 13 has more sub-parts than the 1990 version Mr. Perez-Robles was convicted under. 14 The 1997 version provides: 15 (a) Unlawful sexual intercourse is an act of sexual 16 intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For 17 purposes of this section, a "minor" is a person under the age of 18 and an "adult"is a person who is at least 18 18 years of age. 19 (b) Any person who engages in an act of unlawful sexual 20 intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty 21 of a misdemeanor. 22 (c) Any person who engages in an act of unlawful sexual 23 intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a 24 misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or 25 by imprisonment in the state prison. 26 27 28 (d) Any person over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or
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a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

3 Cal. Penal Code § 261.5 (1993). The Court can compare that to the 1990 version 4 of the statute that Mr. Perez-Robles was convicted under: 5 Unlawful sexual intercourse is an act of sexual intercourse 6 accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years. 7 8 Cal. Penal Code § 261.5 (1990), attached to the Defense initial re-sentencing 9 memorandum. 10 Preliminarily, it is worth noting that the Government has not introduced 11 any evidence establishing what Mr. Perez-Robles plead guilty to or was convicted 12 of. But presuming that the statute was § 261.5, the changes reflect that California 13 decided to provide for greater punishment when there is a greater age disparity: (b) 14 a three-year difference or less is a misdemeanor; (c) over three years' difference is 15 16 either a misdemeanor or felony; and, (d) when the defendant is over 21 and victim 17 under 16, it is a misdemeanor with mandatory jail or a felony. There were 18 allegations in Valencia that he was forty-two at the time he had sex with a minor, 19 but he was convicted of the misdemeanor provision of subsection c. If Mr. Perez20 Robles were prosecuted under Valencia's 1997 version of the statute, he could only 21 22 23 24 have been charged with violating that same subsection c as well. Therefore, the fact that Valencia had been prosecuted under the later version of the statute would not lead to a different outcome for Mr. Perez-Robles.

25 Argument that the Statute Was Categorically a Crime of Violence" Although the Government admits that § 261.5 is not categorically a 26 27 "crime of violence," see Second Motion at 3, it may be taking a contrary position 28
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1 in its motion. The Government appears to argue that § 261.5 necessarily infers the 2 lack of consent. The analysis is: 3 e other sex offenses in the California Penal Code discuss "consent" as an 4 5 6 7 8 e e issue; but the statutory rape statute does not discuss it; therefore, the California legislature made minors incapable of consent to sexual relations.

9 To support this argument, the Government attaches its Exhibits 3 & 4. This may be 10 argued to suggest that lack of consent is therefore an implied element of statutory 11 rape. Although non-consent is the touchstone for a sexual "crime of violence," the 12 Government's logic is misguided. What distinguishes statutory rape from other 13 California sex offenses is precisely the understanding that it is a consensual relation 14 ­ otherwise, it would be charged as rape, etc. That is why consent is not brought up 15 16 in the statutory rape statute but is in the rape statutes: consent can present a defense 17 to rape, but does not make a difference in statutory rape. 18 Moreover, though the California legislature decided that minors could 19 not consent, that does not make their willing sexual relations actually non-consensual 20 ­ the question that federal courts have to ponder in doing the Taylor analysis. What 21 22 23 24 makes it a "crime of violence" is non-consensual, unwilling sexual relations. As the Ninth Circuit explained in Valencia, "lack of actual consent, rather than legal incapacity to consent, is the touchstone of §16(b) analysis." Valencia, 439 F.3d at

25 1050. Hence, the argument that this crime represented a non-consenting sex offense 26 is not material to the issue here. 27 ... 28
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1 Conclusion 2 Therefore, the Court must revise its sentencing calculations, finding 3 under recent case law that Mr. Perez-Robles's Offense Level should be increased only 4 +8 levels (rather than +16 levels, for a "crime of violence" prior). His Sentencing 5 Guidelines calculation, then, was correctly figured by the pre-sentence report writer. 6 The low end of the Guidelines represented an appropriate, and indeed "reasonable" 7 8 sentence before, and nothing has occurred to change that reasoning. This is an 9 ordinary Illegal Re-Entry case; Mr. Pere-Robles would have been sentenced to that 10 24 months if Valencia and Lopez-Solis had interpreted "crimes of violence" just a 11 little earlier. It is thus very appropriate to give him the same sentence (adjusted only 12 for the change in sentencing law) that was proper before. Consequently, the low end 13 of the corrected Sentencing guidelines range is again the "reasonable" sentence. 14 Respectfully submitted: July 17, 2006. 15 JON M. SANDS 16 Federal Public Defender 17 18 19 20 21 22 23 24 25 26 27 28
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s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

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1 Copy of the foregoing transmitted by ECF this 17th day of July, 2006, to: 2 3 CLERK'S OFFICE Courthouse Sandra Day O'Connor 4 401 W. Washington, Suite 160 Phoenix, Arizona 85003 5 JACKI IRELAND 6 Assistant United States Attorney Two Renaissance Square 7 40 North Central Avenue 8 Suite 1200 Phoenix, Arizona 85004-4408 9 10 Copy e-mailed and faxed to: 11 KELLY HEITKAM 12 United States Probation Sandra Day O'Connor U.S. Courthouse 13 401 W. Washington Street Suite 410 14 Phoenix, Arizona 85003 15 16 Copy mailed to: 17 JUAN PEREZ-ROBLES 18 Defendant 19 s/Donna Lee Elm 20 DONNA LEE ELM 21 22 23 24 25 26 27 28
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