Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JACKI L. IRELAND Assistant United States Attorney Arizona State Bar No. 019144 Two Renaissance Square 40 N. Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States, through undersigned counsel, hereby responds to Defendant's Sentencing Memorandum regarding whether Defendant should receive a 16-level enhancement for having a prior conviction for a crime of violence. First, the Government agrees that Defendant is entitled to a resentencing based on United States v. Beng-Salazar, 2006 WL 1843394 (July 6, 2006). Further, the Government agrees that the 2002 Sentencing Guidelines are applicable in this case. United States v. Lopez-Solis, 447 F.3d 1201, 1205 (9 th Cir. 2006). However, the Government disagrees with Defendant's argument that his prior sex offense does not qualify as a crime of violence for sentencing enhancement purposes, pursuant to U.S.S.G. §2L1.2(b)(1)(A). Defendant's Prior Conviction In 1990, Defendant was charged by Information with violating §261.5 of the California Penal Code, unlawful sexual intercourse with a female under age 18. (Defendant's Memo, Exhibit B) The Information states that Defendant "did willfully and unlawfully have and accomplish an act of sexual intercourse with a female person...who was then and there under the 1 United States of America Plaintiff, v. Juan Perez-Robles, Defendant. No. CR-03-1267-PHX-FJM GOVERNMENT'S SECOND MEMORANDUM REGARDING AMELINE REMAND

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age of eighteen years, to wit, sixteen (16) years." (Exhibit 1) On April 4, 1990, Defendant pled guilty to that charge and was subsequently sentenced to two years in prison. (Exhibit 2) Counsel for the Government was unable to obtain a definition of "sexual intercourse" under the applicable California law. It appears that the California legislature did not define "sexual intercourse" for purposes of §261.5, therefore, it should be read as having the common meaning of the statutory words, which according to the Merriam-Webster Dictionary, includes vaginal, anal or oral intercourse. United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9 th Cir. 2006). At the time of Defendant's prior conviction, California did have a "traditional" rape statute on the books at §261 of the Penal Code, "Rape defined". (Exhibit 3) Further, California law defined "consent" in §261.6 in connection with the prosecution of §§261, 286, 288a or 289. (Exhibit 4) Defendant was convicted of a violation of §261.5 which is not listed as an offense where consent is at issue; therefore, we can infer that the California legislature, when drafting §261.5, intended to make minors incapable of giving consent to sexual intercourse. Defendant's Prior Conviction Is A Crime Of Violence Even After Lopez-Solis Defendant argues that his prior conviction for unlawful sexual intercourse is not a crime of violence based on the reasoning in Lopez-Solis. In that case, the Ninth Circuit addressed the issue of whether a Tennessee statutory rape conviction constituted a crime of violence for sentencing enhancement purposes. Lopez-Solis, 447 F.3d at 1203-04. The Court first did a categorical analysis of the statute and held that it was not a categorical crime of violence because the statute was overbroad and encompassed conduct which was not physically or psychologically abusive. Id. at 1209. The Tennessee statute at issue "proscribe[d] consensual penetration of a victim just under 18 by an individual who is 22." Id. at 1207. The Court reasoned that physical injury or assault were not necessarily involved in the crime, and that the risk of pregnancy or contraction of sexually transmitted diseases were not present with respect to some of the conduct covered by the statute. Id. The Court also noted that the Tennessee statutes distinguished "statutory rape" from "sexual assault". Id. at 1208. However, the Ninth Circuit noted that the

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Tennessee statutory rape law contemplated situations where the sexual relationship was consensual. Id. The Court also looked at whether the risk of psychological abuse was present and stated that because the statute covered older teens, specifically teens just under 18 years of age, there was not necessarily a risk of psychological harm to the minor because "as the victim's age increases, the concerns... decrease." Id. at 1209. The Lopez-Solis Court also stated that "[t]his circuit consistently has held that statutory rape laws prohibiting sexual conduct with a minor under 16 proscribe conduct constituting `sexual abuse of a minor.'" Id. at 1205-06. (citing PereiraSalmeron, 337 F.3d 1148, 1155 (9 th Cir. 2003). After finding that the Tennessee statute did not pass the categorical test, the Court then engaged in the modified categorical approach to determine if it qualified as a crime of violence. Lopez-Solis, 447 F.3d at 1210. However, the record of the defendant's conviction was limited to the judgment of conviction which merely stated that Lopez-Solis pled guilty to statutory rape. Id. at 1210-11. The Court was unable to even determine the age of the victim in the statutory rape case. Thus, the prior conviction could not pass the modified categorical test either. Id. at 1211. In the case at hand, in light of the analysis by the Ninth Circuit in Lopez-Solis, it appears that Defendant's prior conviction for unlawful sexual intercourse with a female under age 18 would not qualify as a categorical crime of violence due to the fact that the statute encompasses acts other than vaginal intercourse and the victim can be just one day shy of her 18 th birthday.
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Therefore, this Court should analyze Defendant's prior conviction using the modified categorical approach to determine if it qualifies as a crime of violence for sentencing enhancement purposes. With respect to the modified categorical approach, Lopez-Solis is clearly distinguishable because in that case the Court had no judicially noticeable documents to review in deciding

The Government notes however, that the California legislature obviously meant to draw a bright-line rule prohibiting adults from having sexual relationships with females under age 18, presumably for public policy reasons relating to the health and safety of the minors. 3

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whether the conviction constituted a crime of violence. Id. at 1210-11. In the present case, we have the Information which specifically states that the girl with whom Defendant had unlawful sexual intercourse was merely 16 years old, while Defendant was 23 years old. (Exhibit 1); (Defendant's Sentencing Memorandum, p. 7) The Court in Lopez-Solis appeared to focus on the 17-18 year old victim as opposed to the 16 year old victim. Lopez-Solis, 447 F.3d. at 120607. In his memorandum, Defendant claims that the girl was his girlfriend and that she ran away from home to stay with him. (Defendant's Sentencing Memorandum, p. 7) However, this is merely Defendant's claim and there are no judicially noticeable documents to support this assertion. In fact, Count One of the Information charged Defendant with "Child Stealing". (Exhibit 1) The Government believes that based on the age of the victim, the seven year age difference between Defendant and the victim, and the California legislature's clear intent to prohibit such sexual contact between adults and minors, this Court should determine that Defendant's prior conviction is a crime of violence for sentencing enhancement purposes. Additionally, Defendant argues that a violation of §261.5 does not qualify as a crime of violence based on Valencia v. Gonzales, 439 F.3d 1046 (9 th Cir. 2006). This case is also distinguishable because it dealt with the definition of a crime of violence for civil immigration purposes. Id. at 1048. In that context the Court looked to whether §261.5(c)
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constituted a

crime of violence as defined by Title 8, U.S.C. §1101(a)(43)(F), as defined by Title 18, U.S.C. §16. Id. In the case at hand, the guidelines and caselaw define what qualifies as a crime of violence, and Title 18, U.S.C. §16 is not implicated. The Court in Valencia was conducting a categorical analysis of §261.5(c), but with the sole purpose of determining whether §261.5(c) constituted a crime of violence under 18 U.S.C. §16. Id.

The statute involved in Valencia is specified as §261.5(c), whereas the statute in the present case has no subparts; therefore, it is not the exact same statute of conviction. 4

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CONCLUSION The Government submits that Defendant's prior conviction for unlawful sexual intercourse with a female under age 18 is a crime of violence, and therefore asks this Court to sentence Defendant to the same term of imprisonment as was previously imposed at his originally sentencing. Respectfully submitted this 11 th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Jacki L. Ireland JACKI L. IRELAND Assistant U.S. Attorney

I hereby certify that on this day, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Donna Elm

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