Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge, Presiding, D.C. No. 3:08-CR-01271-MMA-1.
The opinion of the court was delivered by: Paez, Circuit Judge
Argued and Submitted May 4, 2010 -- Pasadena, California
Before: Betty B. Fletcher and Richard A. Paez, Circuit Judges, and Donald E. Walter, District Judge.*fn1
Arvin Espinoza-Morales appeals the 57-month sentence imposed following his guilty plea to attempted re-entry following deportation in violation of 8 U.S.C. § 1326. In particular, Espinoza challenges the district court's application of U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously been convicted of a felony "crime of violence." In this appeal, we consider whether Espinoza's prior conviction for sexual battery under California Penal Code section 243.4(a) or his conviction for penetration with a foreign object under California Penal Code section 289(a)(1) constitutes a crime of violence warranting the § 2L1.2(b)(1)(A)(ii) enhancement. We conclude that they do not, under either the categorical or modified categorical approach, and we accordingly vacate Espinoza's sentence and remand for re-sentencing.
In March 2008, Espinoza, a citizen of Nicaragua, pleaded guilty to one count of attempted re-entry after deportation in violation of 8 U.S.C. § 1326. The government urged the court to apply a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the grounds that Espinoza had previously been deported after "conviction for a felony that is... a crime of violence." The government contended that Espinoza's 1999 convictions for sexual battery under California Penal Code section 243.4(a) and for penetration with a foreign object under California Penal Code section 289(a)(1) -convictions that arose out of a single incident-qualified as crimes of violence within the meaning of the Sentencing Guidelines. Although the government conceded that the sexual battery conviction under section 243.4(a) did not constitute a categorical crime of violence, it argued that the section 289(a)(1) penetration with a foreign object offense categorically constituted a crime of violence. The government also contended that both crimes amounted to crimes of violence under the modified categorical approach. In support of that contention, the government offered (1) the criminal information and abstract of judgment and (2) an unpublished state appellate court decision that summarized the facts of Espinoza's prior offenses. According to the state appeals court opinion, Espinoza had put his victim in a headlock and, while keeping his arm around her neck, tried to kiss her, touched her breast, and rubbed his hand on and inserted his finger inside her vagina.
The district court agreed with the government that Espinoza's prior convictions warranted the 16-level enhancement, concluding that they qualified as crimes of violence "whether you look at [them] under [the] categorical or modified categorical approach."*fn2 Applying a base offense level of 8, a 3-point reduction for acceptance of responsibility, and the 16-level crime of violence enhancement, the district court calculated an advisory Guidelines sentencing range of 57 to 71 months and sentenced Espinoza within the Guidelines range to 57 months' imprisonment and three years of supervised release.
Espinoza timely appealed. On appeal, Espinoza contends that his prior state convictions do not constitute crimes of violence under either the categorical or modified categorical approach and that his sentence violates his Fifth and Sixth Amendment rights because it was based on judicial fact-finding that he had previously been convicted of a crime of violence.*fn3
We review de novo whether a prior conviction constitutes a crime of violence under U.S.S.G. § 2L1.2. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005).
To determine whether Espinoza's prior convictions qualify as "crimes of violence" under U.S.S.G. § 2L1.2,*fn4 we apply the approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990). See Grajeda, 581 F.3d at 1189. Under that approach, we first consider whether a prior offense "is categorically a crime of violence by assessing whether the full range of conduct covered by the statute falls within the meaning of that term." Id. (internal quotation marks, alteration, and citation omitted). If the statute of conviction is overbroad- that is, if it punishes some conduct that qualifies as a crime of violence and some conduct that does not-it does not categorically constitute a crime of violence. See id. In that case, we must then apply the "modified categorical approach" to determine whether the record of conviction shows that the defendant "was convicted of the elements of the generically defined crime." Id. (quoting United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir. 2007) (en banc)).
On appeal, the government concedes that Espinoza's convictions under California Penal Code sections 243.4(a) and 289(a)(1) do not qualify as crimes of violence under the categorical approach. Although we need not accept this concession on a matter of law, see United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987), we agree that these crimes do not categorically constitute crimes of violence.
An offense qualifies as a "crime of violence" under § 2L1.2(b)(1)(A)(ii) if it either (1) " 'has as an element the use, attempted use, or threatened use of physical force against the person of another' under the definition's... 'element' prong" or (2) "constitutes one of the crimes listed in the 'enumerated offense' prong of the definition." Grajeda, 581 F.3d at 1189-90 (quoting U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)).*fn5 We address in turn whether either offense qualifies as a crime of violence under either prong of § 2L1.2's definition, under either the categorical or modified categorical approach. In particular, in applying the enumerated offense prong of § 2L1.2's crime of violence definition, we consider whether Espinoza's convictions could potentially constitute "forcible sex offenses."
1. Sexual Battery under California Penal Code section 243.4(a)
 At the time of Espinoza's conviction, section 243.4(a) punished "touch[ing] an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, [where] the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse." Cal. Penal Code § 243.4(a) (1999). We have previously held that this statute does not categorically constitute a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005). Although the definition of "crime of violence" in force at the time of Espinoza's sentencing differs from that at issue in Lopez-Montanez, the government does not contest, ...