United States v. Valencia-Barragan

Citations: 600 F.3d 1132; 2010 U.S. App. LEXIS 7049; 2010 WL 1292169Docket: 09-50018

Court: Court of Appeals for the Ninth Circuit; April 6, 2010; Federal Appellate Court

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Jose Valencia-Barragan appeals his 41-month sentence for attempted reentry into the United States after being removed, which was enhanced by 16 levels due to a prior conviction for child rape under Washington law (Revised Code of Washington § 9A.44.076(1)). He contends that this conviction should not be classified as a 'crime of violence' under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A), and argues that the district court failed to adequately explain the sentencing factors set forth in 18 U.S.C. § 3553(a), resulting in a substantively unreasonable sentence.

The Ninth Circuit, with Judge Goodwin writing for the panel, determined that Valencia-Barragan’s prior conviction constitutes 'sexual abuse of a minor' and thus qualifies as a crime of violence justifying the sentencing enhancement. The court found no procedural or substantive error in the district court's sentencing process. Valencia-Barragan had been apprehended by Border Patrol on May 18, 2008, after previously being deported for a felony conviction of second-degree rape of a child under fourteen. He had expressed no remorse for his actions and faced allegations of further inappropriate behavior with another minor, though he was not charged in that case.

In the sentencing hearing, the district court calculated a base offense level of eight, applied the 16-level increase for the prior crime of violence, and granted a three-level reduction for acceptance of responsibility, resulting in a guidelines range of 41 to 51 months. The court imposed a 41-month sentence, stating it was sufficient but not greater than necessary, particularly given the maximum possible sentence of 20 years for the offense. Valencia-Barragan's appeal was dismissed, affirming the district court's decision.

Valencia-Barragan contends that his prior conviction under Washington's section 9A.44.076(1) does not qualify as 'statutory rape' or 'sexual abuse of a minor,' which would trigger a sixteen-level sentencing enhancement under U.S.S.G. 2L1.2(b)(1)(A) for crimes of violence. Under 8 U.S.C. 1326, the base offense level is eight, with a sixteen-level increase for felony convictions categorized as crimes of violence, including 'sexual abuse of a minor' and 'statutory rape.' The court applied a de novo review and determined that a conviction under this statute is categorically classified as sexual abuse of a minor.

The statute defines rape of a child in the second degree as involving sexual intercourse with a non-married individual aged 12 to 13, where the perpetrator is at least 36 months older. The categorical approach, established in Taylor v. United States, requires comparing the elements of the state statute with the federal definitions of the relevant crimes without considering the underlying facts of the conviction. The generic definition of statutory rape under 18 U.S.C. 2243 includes four elements: a knowing mens rea, a sexual act, a minor aged 12 to 16, and at least a four-year age difference.

While the court acknowledged that section 9A.44.076(1) includes two of these elements, it ultimately found that it is categorically broader than the federal definition because it lacks the mens rea requirement and specifies a three-year age difference rather than four. Consequently, because the Washington statute encompasses conduct that does not meet the federal definition, the conviction under section 9A.44.076(1) does not qualify as a predicate offense for the purposes of the sentencing enhancement.

A conviction under section 9A.44.076(1) is classified as sexual abuse of a minor, which consists of three elements: 1) sexual conduct, 2) with a minor, and 3) that constitutes abuse. The first two elements are defined using the ordinary meaning of the terms, while the third element, abuse, is interpreted as 'physical or psychological harm' based on the victim's age. Sexual conduct with children under fourteen is inherently abusive. Section 9A.44.076(1) addresses both sexual conduct with minors and includes the abusive nature of such conduct, thereby aligning with the federal definition of sexual abuse of a minor. Consequently, Valencia-Barragan’s prior conviction qualifies as a crime of violence, justifying a sixteen-level sentence increase under U.S.S.G. 2L1.2(b)(1)(A).

Regarding procedural and substantive reasonableness, Valencia-Barragan argued that the district court inadequately applied the sentencing factors outlined in 18 U.S.C. 3553(a) and imposed an unreasonable sentence. Sentencing decisions are reviewed for abuse of discretion, but when a defendant does not object to procedural errors regarding these factors, the review is for plain error. The district court did not commit plain error in its application of the 3553(a) factors, as it is not required to provide extensive explanations when applying the Guidelines. The court considered Valencia-Barragan’s arguments and reviewed the 3553(a) criteria before imposing a sentence within the Guidelines range, which does not constitute plain error or substantive unreasonableness, as established in Amezcua-Vasquez.

A fifty-two month sentence, primarily determined by a sixteen-level sentencing enhancement, was deemed substantively unreasonable in a prior case. However, the recent case concerning Valencia-Barragan was distinguished from that decision. The previous ruling's scope is limited, with no conclusions drawn regarding sentences under different circumstances, such as more recent convictions or greater public safety concerns. The district court acted within its discretion when applying the sixteen-level enhancement due to Valencia-Barragan's deportation following his sentence and the recency of his conviction. The nature of Valencia-Barragan’s offense, involving inappropriate actions towards an eleven-year-old girl, heightened the necessity to protect the public, supporting the imposition of a within-Guidelines sentence. Consequently, the sentence was affirmed as neither procedurally nor substantively unreasonable.