- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Sentencing
- Date Filed: 11-06-2012
- Case #: 11-10462
- Judge(s)/Court Below: Circuit Judge Graber for the Court, Circuit Judges Alarcón and Berzon
- Full Text Opinion
Raul Zamorano-Ponce (Ponce) was convicted for “rape of a child in the third degree.” Ponce’s sentence ended prematurely when he was released and removed from the United States. Shortly thereafter, Ponce was indicted by a federal jury for “reentry after removal,” in violation of 8 U.S.C. § 1326. Ponce pled guilty and was sentenced to 33-months in prison. The issue before the Court is whether Revised Code of Washington section 9A.44.079, “rape of a child in the third degree,” qualifies as a “crime of violence” that allowed the lower court’s use for application of “a 16-level enhancement” in sentencing pursuant to U.S.S.G.§ 2L1.2(b)(1)(A)(ii). Ponce argues that the Washington code is too broad, because the federal definition “does not require a mens rea of ‘knowingly.’” “Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines provides for a sixteen-level sentencing enhancement upon conviction under 8 U.S.C. § 1326, where an alien illegally reentered the United States after having been previously deported subsequent to a conviction for a felony ‘crime of violence.’” United States v. Gomez-Mendez, 486 F.3d 599, 601 (9th Cir. 2007). Employing United States v. Rodrigues-Guzman (establishing the crime of “statutory rape” as sufficient for “crime of violence,”) and Taylor v. United States, (which introduced the “familiar categorical approach” to decide when a conviction “constitutes ‘statutory rape’ and therefore a crime of violence,”) the Court compared Washington’s Code 9A.44.079 to the “generic federal definition for ‘statutory rape.’” The Court found the code did qualify as “statutory rape” because “the federal definition covers the ‘full scope of the conduct’ that the Washington statute prohibits.” Since the federal definition does not include the mens rea “knowingly” the Court found Ponce to have relied incorrectly on precedent regarding “sexual abuse of a minor.” Conviction AFFIRMED.