FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50164
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-00881-W-1
EDUARDO CASTRO, AMENDED
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
January 13, 2010—Pasadena, California
Filed March 26, 2010
Amended June 4, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr. and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
7987
UNITED STATES v. CASTRO 7989
COUNSEL
Anthony E. Colombo, Jr., San Diego, California, for the
defendant-appellant.
Steve Miller, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
7990 UNITED STATES v. CASTRO
OPINION
GOODWIN, Senior Circuit Judge:
The opinion filed March 26, 2010, and appearing at 599
F.3d 1050 (9th Cir. 2010), is ordered amended and filed here-
with.
Eduardo Castro, convicted of attempted reentry into the
United States after removal in violation of 8 U.S.C. § 1326,
appeals his forty-six month sentence. Castro’s sentence
includes a sixteen-level increase in offense level for a prior
conviction under California Penal Code section 288(c)(1),
which criminalizes lewd or lascivious acts on a child of 14 or
15 years by a person at least ten years older than the child.
Cal. Penal Code § 288(c)(1). Castro argues that a conviction
under section 288(c)(1) does not constitute a “crime of vio-
lence” warranting a sixteen-level increase under United States
Sentencing Guideline § 2L1.2(b)(1)(A). U.S. Sentencing
Guidelines Manual “U.S.S.G.” § 2L1.2(b)(1)(A) (2009). We
have jurisdiction under 28 U.S.C. § 1291. We hold that a con-
viction under California Penal Code section 288(c)(1) cate-
gorically does not constitute “sexual abuse of a minor” and
therefore does not qualify as a crime of violence warranting
a sixteen-level increase. We therefore vacate Castro’s sen-
tence and remand for resentencing.
Castro also argues that the district court imposed an unrea-
sonable sentence and that it erred by increasing the statutory
maximum under 8 U.S.C. § 1326(b) because Castro’s prior
conviction was neither alleged in the indictment nor admitted
by him. Because we vacate Castro’s sentence, we do not
address whether the sentence was reasonable. Nor do we
reach his argument that the district court erred by increasing
the statutory maximum because, as Castro concedes, that
argument is foreclosed by precedent. See, e.g., United States
v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009).
UNITED STATES v. CASTRO 7991
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2008, immigration and border patrol agents
arrested Castro while executing a search warrant at the home
of his ex-wife, who had been arrested two or three weeks ear-
lier for smuggling illegal aliens into the United States. Castro,
a citizen of Mexico, had been deported in 2003 after pleading
guilty to committing lewd or lascivious acts on a child of 14
or 15 years, a felony, under California Penal Code section
288(c)(1).
On March 23, 2009, Castro pleaded guilty to being a
deported alien found in the United States in violation of 8
U.S.C. § 1326. At sentencing, the district court concluded that
Castro’s prior conviction under section 288(c)(1) constituted
“sexual abuse of a minor” and was therefore a crime of vio-
lence for purposes of sentencing enhancement. The court
found a base offense level of eight, U.S.S.G. § 2L1.2(a); a
sixteen-level increase based on a prior conviction for a crime
of violence, id. § 2L1.2(b)(1)(A)(ii); and a three-level
decrease for acceptance of responsibility, id. § 3E1.1, and
sentenced Castro to forty-six months in prison and three years
of supervised release. Castro timely appealed.
DISCUSSION
[1] Castro contends that his prior conviction under Califor-
nia Penal Code section 288(c)(1) does not qualify as a crime
of violence warranting a sixteen-level increase under U.S.S.G.
§ 2L1.2(b)(1)(A). For a violation of 8 U.S.C. § 1326, the Sen-
tencing Guidelines provide for a base offense level of eight
and instruct that the offense level be increased by sixteen
levels “[i]f the defendant previously was deported . . . after
. . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). For
purposes of the Sentencing Guidelines, “crime of violence”
includes, inter alia, “sexual abuse of a minor.” Id. at cmt.
n.1(B)(iii). We hold that section 288(c)(1) is broader than the
7992 UNITED STATES v. CASTRO
generic offense of sexual abuse of a minor and that it there-
fore is not categorically a crime of violence.
[2] To determine whether a conviction under section
288(c)(1) constitutes “sexual abuse of a minor,” we apply the
categorical approach set forth in Taylor v. United States, 495
U.S. 575, 600-02 (1990). “Under the categorical approach, we
‘compare the elements of the statute of conviction with a fed-
eral definition of the crime to determine whether conduct pro-
scribed by the statute is broader than the generic federal
definition.’ ” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th
Cir. 2008) (quoting Quintero-Salazar v. Keisler, 506 F.3d
688, 692 (9th Cir. 2007)). “We do not examine the facts
underlying the offense, but ‘look only to the fact of conviction
and the statutory definition of the prior offense.’ ” Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en
banc) (quoting Taylor, 495 U.S. at 602).
[3] The statute of conviction, California Penal Code sec-
tion 288(c)(1), criminalizes the conduct of “[a]ny person who
commits an act described in subdivision (a) with the intent
described in that subdivision, and the victim is a child of 14
or 15 years, and that person is at least 10 years older than the
child.” Cal. Penal Code § 288(c)(1). Section 288(a), in turn,
applies to “[a]ny person who willfully and lewdly commits
any lewd or lascivious act . . . upon or with the body, or any
part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the
child.” Id. § 288(a). Section 288(c)(1) therefore contains the
following five elements: (1) willfully and lewdly; (2) commit-
ting any lewd or lascivious act; (3) on a child ages 14 or 15;
(4) with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of the defendant or the child;
and (5) the defendant must be at least ten years older than the
child.
UNITED STATES v. CASTRO 7993
[4] Our case law recognizes two different generic federal
definitions of “sexual abuse of a minor.” Pelayo-Garcia v.
Holder, 589 F.3d 1010, 1013 (9th Cir. 2009).1 The first
generic definition contains three elements: (1) sexual conduct;
(2) with a minor; (3) that constitutes abuse. United States v.
Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). We define
the first two elements—(1) sexual conduct; (2) with a minor
—by “ ‘employing the ordinary, contemporary, and common
meaning of the words that Congress used.’ ” United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (quoting
Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174
(9th Cir. 1999)). A statute of conviction contains the third ele-
ment, “abuse,” if it expressly prohibits conduct that causes
“ ‘physical or psychological harm’ in light of the age of the
victim in question.” Medina-Villa, 567 F.3d at 513. Sexual
conduct with younger children is per se abusive. Id. at 514-15.
Because “[t]he conduct reached by Section 288(a) indisputa-
bly falls with the common, everyday meanings of the words
‘sexual’ and ‘minor,’ ” Baron-Medina, 187 F.3d at 1147, and
because it applies only to sexual conduct with younger chil-
dren, we have previously held that a conviction under section
288(a) categorically constitutes “sexual abuse of a minor” for
purposes of sentencing enhancement. See id.; Medina-Villa,
567 F.3d at 516.
[5] Section 288(c)(1), however, is categorically broader
than this first generic definition. Although it contains two ele-
ments of the generic crime—(1) sexual conduct; (2) with a
minor—it is broader than the generic crime because it crimi-
nalizes conduct that does not necessarily constitute abuse.
Section 288(c)(1) does not expressly include physical or psy-
1
Although Pelayo-Garcia addressed whether a statute of conviction
constituted an “aggravated felony” in the immigration context, 8 U.S.C.
§ 1101(a)(43), and the present case concerns whether the statute of convic-
tion constitutes a “crime of violence” in the sentencing context, U.S.S.G.
§ 2L1.2, the analysis is the same. See Pelayo-Garcia, 589 F.3d at 1013
n.1; Medina-Villa, 567 F.3d at 511-12.
7994 UNITED STATES v. CASTRO
chological abuse as an element of the crime. Moreover, unlike
section 288(a), which applies only where the minor is younger
than 14, section 288(c)(1) does not address conduct that is per
se abusive. See Pelayo-Garcia, 589 F.3d at 1015-16 (conclud-
ing that sexual conduct with a 15-year-old child is not per se
abusive). Section 288(c)(1) is therefore broader than the first
generic definition of sexual abuse of a minor.
[6] We next compare section 288(c)(1) to the generic defi-
nition of sexual abuse of a minor set forth by an en banc panel
in Estrada-Espinoza. This definition contains four elements:
“(1) a mens rea level of knowingly; (2) a sexual act; (3) with
a minor between the ages of 12 and 16; and (4) an age differ-
ence of at least four years between the defendant and the
minor.” 546 F.3d at 1152. Although Estrada-Espinoza
referred to those elements, derived from 18 U.S.C. § 2243, as
defining “sexual abuse of a minor” generally, we subse-
quently clarified that the Estrada-Espinoza definition “en-
compassed statutory rape crimes only.” Medina-Villa, 567
F.3d at 514-15; accord Pelayo-Garcia, 598 F.3d at 1013-14.
As Medina-Villa noted, reading the Estrada-Espinoza defini-
tion to define the universe of crimes constituting “sexual
abuse of a minor” would lead to absurd results, because the
Estrada-Espinoza definition excludes crimes against children
under 12; moreover, it would “eliminate the need for the sepa-
rate and independent example of ‘statutory rape’ as a ‘crime
of violence’ ” for purposes of U.S.S.G. § 2L1.2(b)(1)(A).
Medina-Villa, 567 F.3d at 515-16. Rather than defining the
universe of crimes constituting “sexual abuse of a minor,”
therefore, Estrada-Espinoza set forth a second generic federal
definition.
Section 288(c)(1) is also broader than this second generic
definition of sexual abuse of a minor. It contains three of the
required four elements: it applies to minors within the generic
crime’s designated age range; it requires an age difference
greater than the generic crime’s required four years; and it
contains the mens rea requirement because, in this context, a
UNITED STATES v. CASTRO 7995
defendant cannot act “willfully” without also acting “know-
ingly.” This is so because the mens rea requirement of “know-
ingly” applies only to the defendant’s act of engaging in a
sexual act, Pelayo-Garcia, 589 F.3d at 1013, and California
Penal Code section 7(1) defines “willfully” as implying “a
purpose or willingness to commit the act.” Cal. Penal Code
§ 7(1). A defendant cannot logically have a purpose or will-
ingness to commit an act without knowing that he or she is
engaging in the act. Section 288(c)(1) therefore contains three
elements of the second generic definition.
[7] Section 288(c)(1), however, is categorically broader
than the generic offense because it is missing one element of
the generic crime, a “sexual act.” For purposes of the generic
offense of sexual abuse of a minor set out in 18 U.S.C.
§ 2243, “sexual act” is defined as follows:
(A) contact between the penis and the vulva or the
penis and the anus, and for purposes of this subpara-
graph contact involving the penis occurs upon pene-
tration, however slight;
(B) contact between the mouth and the penis, the
mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by
any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(D) the intentional touching, not through the cloth-
ing, of the genitalia of another person who has not
attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.
7996 UNITED STATES v. CASTRO
18 U.S.C. § 2246(2). Thus, for present purposes, “sexual act”
requires, at a minimum, an intentional touching, not through
the clothing, of a minor’s genitalia.
[8] Section 288(c)(1), however, contains no such require-
ment; it requires only a “lewd or lascivious” act. Lewd touch-
ing, for purposes of section 288, can occur through a victim’s
clothing and can involve any part of the victim’s body. People
v. Martinez, 903 P.2d 1037, 1042-43 (Cal. 1995). Moreover,
a lewd or lascivious act need not involve touching at all; a
defendant can violate section 288 by instructing a minor to
disrobe. People v. Mickle, 814 P.2d 290, 308-09 (Cal. 1991).
Because a defendant could be convicted under section
288(c)(1) even if the government failed to prove beyond a
reasonable doubt that the conduct constituted a “sexual act,”
section 288(c)(1) is broader than the second generic definition
of sexual abuse of a minor. Therefore, because it falls outside
both generic definitions of “sexual abuse of a minor,” a con-
viction under California Penal Code section 288(c)(1) does
not categorically constitute a crime of violence for purposes
of the sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A).2
Where, as here, the government has not asked us to apply
the modified categorical approach, we do not do so. See Latu
v. Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008). Because we
remand for resentencing on an open record, see United States
v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc), the
district court has discretion to consider the modified categori-
cal issue on remand. We retain jurisdiction to hear an appeal
after resentencing.
VACATED and REMANDED for resentencing.
2
We do not address whether section 288(c)(1) constitutes the generic
offense of “statutory rape” and therefore constitutes a “crime of violence,”
see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), because the parties have not raised
that issue.