FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50267
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-01271-
ARVIN ESPINOZA-MORALES, MMA-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
May 4, 2010—Pasadena, California
Filed September 10, 2010
Before: Betty B. Fletcher and Richard A. Paez,
Circuit Judges, and Donald E. Walter,
District Judge.*
Opinion by Judge Paez;
Dissent by Judge Walter
*The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
13833
UNITED STATES v. ESPINOZA-MORALES 13837
COUNSEL
Doug Keller, Federal Defenders of San Diego, California, for
defendant-appellant Arvin Espinoza-Morales.
Amy Dell, Special Assistant United States Attorney, and She-
lia Nagarai (argued), Assistant United States Attorney, San
Diego, California, for plaintiff-appellee, United States of
America.
OPINION
PAEZ, Circuit Judge:
Arvin Espinoza-Morales appeals the 57-month sentence
imposed following his guilty plea to attempted reentry follow-
ing 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 previ-
ously been convicted of a felony “crime of violence.” In this
appeal, we consider whether Espinoza’s prior conviction for
13838 UNITED STATES v. ESPINOZA-MORALES
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.
I. FACTUAL BACKGROUND
In March 2008, Espinoza, a citizen of Nicaragua, pleaded
guilty to one count of attempted reentry 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 previ-
ously 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 Califor-
nia 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 sex-
ual battery conviction under section 243.4(a) did not consti-
tute a categorical crime of violence, it argued that the section
289(a)(1) penetration with a foreign object offense categori-
cally 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 informa-
tion 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.
UNITED STATES v. ESPINOZA-MORALES 13839
The district court agreed with the government that
Espinoza’s prior convictions warranted the 16-level enhance-
ment, concluding that they qualified as crimes of violence
“whether you look at [them] under [the] categorical or modi-
fied categorical approach.”1 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 cal-
culated 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 vio-
lence 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.2
II. STANDARD OF REVIEW
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).
1
The district court did not actually specify whether it found that both
convictions, or only one, qualified as crimes of violence. Because the dis-
trict court was unclear, and because the government had sought the
enhancement on the basis of both convictions, we assume that the district
court found that both convictions qualified as crimes of violence and
accordingly analyze both statutes.
2
As Espinoza acknowledges, his constitutional argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and our con-
sistent adherence to that Supreme Court precedent, see, e.g., United States
v. Grisel, 488 F.3d 844, 846 (9th Cir. 2007) (en banc); United States v.
Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We accordingly reject his
constitutional argument without further analysis.
13840 UNITED STATES v. ESPINOZA-MORALES
III. DISCUSSION
To determine whether Espinoza’s prior convictions qualify
as “crimes of violence” under U.S.S.G. § 2L1.2,3 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 cate-
gorically a crime of violence by assessing whether the full
range of conduct covered by the statute falls within the mean-
ing 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 cate-
gorically 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)).
A. Categorical Approach
On appeal, the government concedes that Espinoza’s con-
victions under California Penal Code sections 243.4(a) and
289(a)(1) do not qualify as crimes of violence under the cate-
gorical approach. Although we need not accept this conces-
sion 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.
3
The district court applied the 2008 edition of the United States Sen-
tencing Guidelines Manual in calculating Espinoza’s advisory Guidelines
range, and all references are to that edition unless otherwise indicated.
Like the current version, the 2008 version of § 2L1.2(b)(1)(A)(ii) instructs
the court to increase a defendant’s base offense level by 16 levels “[i]f the
defendant previously was deported, or unlawfully remained in the United
States, after . . . a conviction for a felony that is . . . a crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
UNITED STATES v. ESPINOZA-MORALES 13841
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 ‘enu-
merated offense’ prong of the definition.” Grajeda, 581 F.3d
at 1189-90 (quoting U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)).4 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)
[1] 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, sex-
ual gratification, or sexual abuse.” Cal. Penal Code § 243.4(a)
(1999). We have previously held that this statute does not cat-
egorically constitute a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A). United States v. Lopez-Montanez, 421 F.3d
4
Application note 1(B)(iii) to U.S.S.G. § 2L1.2 provides in full:
“Crime of violence” means any of the following offenses under
federal, state, or local law: Murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where con-
sent to the conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling,
or any other offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical
force against the person of another.
13842 UNITED STATES v. ESPINOZA-MORALES
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, and we do not doubt, the ongoing validity of
Lopez-Montanez’s holding, at least as applied to this case. To
explain, we briefly discuss Lopez-Montanez’s holding and its
applicability here.
a. Element Prong
We recognized in Lopez-Montanez that, “although [section
243.4(a)] requires that the victim be ‘unlawfully restrained,’
the restraint need not be physical and can be accomplished by
words alone, including words that convey no threat of vio-
lence.” Id. Because a section 243.4(a) offense therefore does
not require the “use, attempted use, or threatened use of physi-
cal force against the person of another,” it does not qualify as
a crime of violence under the element prong of § 2L1.2’s defi-
nition. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (emphasis added);
see also United States v. Beltran-Munguia, 489 F.3d 1042,
1051 (9th Cir. 2007).
b. Enumerated Offense Prong
[2] In Lopez-Montanez, we also held that only offenses
involving the use of physical force could constitute “forcible
sex offenses” under the enumerated offense prong, and that
sexual battery under section 243.4(a) therefore did not qualify
as a “forcible sex offense.” Lopez-Montanez, 421 F.3d at
929-31. To be sure, the 2008 amendments to the § 2L1.2 defi-
nition of “crime of violence” may have abrogated this hold-
ing. At the time of Lopez-Montanez, § 2L1.2 enumerated
“forcible sex offenses,” with no elaboration, on its list of
crimes of violence. Id. at 929 (quoting U.S.S.G. § 2L1.2, cmt.
n. 1(B)(ii) (2002)). By the time of Espinoza’s sentencing in
2009, the Sentencing Commission had amended the definition
to include a more detailed description of the “forcible sex
offenses” that would constitute crimes of violence. Rather
UNITED STATES v. ESPINOZA-MORALES 13843
than simply listing “forcible sex offenses” as a crime of vio-
lence, the new definition lists “forcible sex offenses (includ-
ing where consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is involuntary,
incompetent, or coerced).” U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii).
This amendment took effect on November 1, 2008.
[3] We need not decide here whether this amendment abro-
gates Lopez-Montanez’s holding, however, because it cannot
affect the calculation of Espinoza’s sentence. Although a sen-
tencing court must generally apply the Guidelines in effect at
the time of sentencing, the Ex Post Facto Clause requires a
court to apply instead the Guidelines in effect at the time of
the current offense “if the guidelines have undergone substan-
tive changes that would disadvantage the defendant.” United
States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006). A
change that would overrule an existing precedent constitutes
such a “substantive” change. See United States v. Smallwood,
35 F.3d 414, 417 n.8 (9th Cir. 1994) (citing, among others,
United States v. Saucedo, 950 F.2d 1508 (10th Cir. 1991)).
Thus, if the 2008 amendment to § 2L1.2’s crime of violence
definition abrogated Lopez-Montanez, it was substantive and
therefore cannot be applied to Espinoza. In that case, the
Guideline in effect at the time of his March 2008 attempted
entry offense—which, like the Guideline applied in Lopez-
Montanez, enumerated “forcible sex offenses,” without the
elaboration, as a crime of violence, U.S.S.G. § 2L1.2, cmt.
n.1(B)(iii) (2007)—would apply. Lopez-Montanez’s holding
that sexual battery under section 243.4(a) does not categori-
cally constitute a “forcible sex offense” therefore applies here,
regardless of the effect of the 2008 amendment. Espinoza’s
conviction under section 243.4(a) thus does not categorically
constitute a crime of violence under either the element prong
or the enumerated offense prong of the § 2L1.2 definition.
2. Penetration with a Foreign Object under California
Penal Code section 289(a)(1)
At the time of Espinoza’s conviction, section 289(a)(1) pro-
vided:
13844 UNITED STATES v. ESPINOZA-MORALES
Every person who causes the penetration, however
slight, of the genital or anal openings of any person
or causes another person to so penetrate the defen-
dant’s or another person’s genital or anal openings
for the purpose of sexual arousal, gratification, or
abuse by any foreign object, substance, instrument,
or device, or by any unknown object when the act is
accomplished against the victim’s will by means of
force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another
person shall be punished by imprisonment in the
state prison for three, six, or eight years.
Cal. Penal Code § 289(a)(1) (1999). We address in turn
whether this offense categorically qualifies as a crime of vio-
lence under the element prong or the enumerated offense
prong of the § 2L1.2 definition.
a. Element Prong
[4] We have made clear that the force required under the
element prong of the § 2L1.2 crime of violence definition
“must actually be violent in nature.” Grajeda, 581 F.3d at
1191 (quoting Lopez-Montanez, 421 F.3d at 929). Thus, to
constitute a categorical crime of violence under the element
prong, section 289(a)(1) must only punish conduct that
involves the use, attempted use, or threatened use of violent
physical force against another. It does not.
[5] Rather, section 289(a)(1) applies when a defendant
accomplishes a penetration proscribed by the statute by any of
several enumerated means, including “by means of . . . duress.”5
5
Because we conclude that accomplishing a penetration by means of
duress does not necessarily involve the use, attempted use, or threatened
use of force under the element prong, we need not address Espinoza’s
argument that accomplishing a penetration “by means of . . . fear of imme-
diate and unlawful bodily injury” likewise does not involve such a use of
force.
UNITED STATES v. ESPINOZA-MORALES 13845
Cal. Penal Code § 289(a)(1). Duress does not necessarily
involve the use, attempted use, or threatened use of violent
physical force. As California courts have explained, “duress”
under section 289(a) “involves psychological coercion” and
can arise from “a direct or implied threat of force, violence,
danger, hardship or retribution sufficient to coerce a reason-
able person of ordinary susceptibilities to first, perform an act
which otherwise would not have been performed, or, second,
acquiesced [sic] in an act to which one otherwise would not
have submitted.” People v. Senior, 5 Cal. Rptr. 2d 14, 20 (Cal.
Ct. App. 1992) (internal quotation marks omitted). Although
threatening “force, violence, or danger” might constitute a
threatened use of violent physical force, threatening “hardship
or retribution” does not necessarily involve any threat, use, or
attempted use of violent physical force.
Indeed, the state has repeatedly applied section 289(a)(1) to
defendants who penetrated their victims by means of duress
in ways that involved no use or threatened use of violent
physical force. In People v. Minsky, for example, a defendant
was convicted under section 289(a) for posing as a lawyer and
tricking women into believing that a loved one had just been
arrested and was facing mandatory jail time for a hit-and-run,
and then posing as the hit-and-run victim or witness and offer-
ing to drop the charges or to refuse to testify if the woman
submitted to sex acts. People v. Minsky, 129 Cal. Rptr. 2d
583, 584-85 (Cal. Ct. App. 2003), review granted and then
dismissed, 105 P.3d 115 (2005).6 An intermediate California
appellate court affirmed this conviction, concluding that the
defendant accomplished the crime by means of duress by
“pos[ing] a threat of . . . retribution,” i.e. “payback or
6
Although we ordinarily should not cite opinions for which the Califor-
nia Supreme Court granted review, see Cal. R. Ct. 8.1105(e)(1), we can
appropriately rely on this case to show that the state has actually applied
section 289(a)(1) to conduct that does not involve the use, attempted use,
or threatened use of violent physical force. See Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 876 n.3 (9th Cir. 2008).
13846 UNITED STATES v. ESPINOZA-MORALES
revenge.” Id. at 586-87. Similarly, in People v. Cardenas, a
defendant was convicted under section 289(a) for inducing his
victims to consent to sex acts by pretending to be a faith
healer who could cure them. 26 Cal. Rptr. 2d 567, 568 (Cal.
Ct. App. 1994). Again, the intermediate court affirmed the
conviction, explaining that the defendant had accomplished
the penetrations by means of duress, and that physical force
“may, but need not[,] be present to have duress.” Id. at
573-74.
[6] These cases conclusively establish that section
289(a)(1) sometimes punishes conduct that does not involve
the “use, attempted use, or threatened use of physical force
against the person of another.” Section 289(a)(1) therefore
does not categorically qualify as a crime of violence under the
element prong of § 2L1.2’s definition.
b. Enumerated Offense Prong
[7] For similar reasons, we also conclude that section
289(a)(1) does not categorically qualify under the enumerated
offense prong as a “forcible sex offense” as our precedents
have defined that term. We have held that a “forcible sex
offense” must have an element of “the use of some force out-
side of the act of unwanted penetration.” United States v.
Bolanos-Hernandez, 492 F.3d 1140, 1144 (9th Cir. 2007).
Although the offense need not involve “the heightened level
of force needed to qualify a crime under § 2L1.2’s” element
prong, id. at 1145, the force involved must be physical, as
opposed to psychological, see Lopez-Montanez, 421 F.3d at
929-30 (concluding that sexually touching a victim by “un-
lawfully restrain[ing]” him or her using only psychological
force would not constitute a “forcible sex offense”).7
7
Again, we acknowledge that the 2008 amendment to the Sentencing
Guidelines Manual may well have abrogated our holding in Lopez-
Montanez. As we explained above in section III.A.1.b, however, any effect
that the 2008 amendment has on our precedent cannot apply to Espinoza’s
sentence because he committed his crime before the amendment took
effect.
UNITED STATES v. ESPINOZA-MORALES 13847
[8] Section 289(a)(1) punishes conduct that does not
involve any physical force “outside of the act of unwanted
penetration.” In People v. Hernandez, an intermediate Califor-
nia court of appeal upheld a section 289(a)(1) conviction
where “[n]othing in the record indicate[d] that defendant
applied any force greater than that necessary to commit the
sexual penetration offense.” No. E029254, 2002 WL
1734011, *2 (Cal. Ct. App. July 26, 2002).8 The defendants
in Minsky and Cardenas, described above, likewise were con-
victed under section 289(a) even though they did not use any
physical force outside the act of unwanted penetration. See
Minsky, 129 Cal. Rptr. 2d at 584-85, 589; Cardenas, 26 Cal.
Rptr. 2d at 570, 573-74. Because section 289(a)(1) applies to
conduct that does not involve any such “extra” physical force,
it does not categorically constitute a “forcible sex offense”
and accordingly does not categorically constitute a crime of
violence under the enumerated offense prong of § 2L1.2’s
definition.
B. Modified Categorical Approach
[9] Because we conclude that neither of Espinoza’s con-
victions categorically qualifies as a crime of violence, we
must next determine whether either of his convictions consti-
tutes a crime of violence under the modified categorical
approach.9 The modified categorical approach “requires us to
determine—if we can—whether the conduct for which the
defendant was convicted fits within the federal definition” of
8
Although we ordinarily should not cite unpublished opinions, we can
appropriately rely on this case to show that the state has actually applied
section 289(a)(1) to conduct that falls outside of our definition of “forcible
sex offenses.” See Vizcarra-Ayala, 514 F.3d at 876 n.3.
9
Contrary to the government’s contention, Espinoza argued before the
district court that his prior convictions do not qualify as crimes of violence
under the modified categorical approach. We therefore review de novo—
not for plain error, as the government urges—the district court’s conclu-
sion that Espinoza’s convictions constituted crimes of violence under the
modified categorical approach. Rodriguez-Rodriguez, 393 F.3d at 856.
13848 UNITED STATES v. ESPINOZA-MORALES
a crime of violence. United States v. Snellenberger, 548 F.3d
699, 701 (9th Cir. 2008) (en banc). As applied here, we must
determine whether the conduct for which Espinoza was con-
victed involved the “use, attempted use, or threatened use of
[violent] physical force against the person of another” (as the
element prong requires) or involved “the use of some force
outside of the act of unwanted penetration” (as the enumer-
ated offense prong requires). See Grajeda, 581 F.3d at
1189-91; Bolanos-Hernandez, 492 F.3d at 1144. We can con-
clude that a conviction qualifies as a crime of violence under
the modified categorical approach “only if the record of con-
viction shows the jury ‘necessarily’ found all of the generic
elements,10 or the defendant ‘necessarily’ admitted all of the
generic elements in a plea.” Sandoval-Lua v. Gonzales, 499
F.3d 1121, 1131 (9th Cir. 2007) (citing Taylor, 495 U.S. at
599-602 and Shepard v. United States, 544 U.S. 13, 19-21
(2005)). Here, the government has offered a criminal informa-
tion and abstract of judgment as well as a California appellate
court decision affirming Espinoza’s convictions and summa-
rizing the facts of his case. None of these documents, consid-
ered individually or collectively, establishes that the jury
“necessarily” found that Espinoza used, attempted to use, or
threatened to use force that would render his convictions
crimes of violence.
1. Criminal Information and Abstract of Judgment
The criminal information and abstract of judgment, taken
together, do not establish that Espinoza was “necessarily”
convicted of using force that would render his convictions
crimes of violence.
10
By “generic elements,” we mean those elements that would qualify
the crime as a crime of violence. Thus, for example, if the conviction
record established that Espinoza was necessarily convicted of accomplish-
ing the unlawful penetration by means of force, as opposed to by means
of duress, we could conclude that he had been convicted of a crime of vio-
lence as defined by § 2L1.2.
UNITED STATES v. ESPINOZA-MORALES 13849
[10] In the section 243.4(a) sexual battery count, the infor-
mation charged Espinoza with “willfully and unlawfully
touch[ing] an intimate part of Jane Doe, while said person
was unlawfully restrained by said defendant(s) Arvin
Espinoza Morales, against the will of said person and for the
purpose of sexual arousal, sexual gratification, and sexual
abuse.” The abstract of judgment shows only that Espinoza
was convicted by jury of this crime. Neither the information
nor the abstract of judgment clarifies the type of unlawful
restraint used, and neither document even mentions any use
of force. The information and abstract of judgment therefore
cannot establish that the jury “necessarily” convicted
Espinoza of violating section 243.4(a) based on conduct
involving the use of force.
[11] In the section 289(a)(1) penetration by a foreign
object count, the information charged Espinoza with accom-
plishing the unlawful penetration “by force, violence, duress,
menace and fear of immediate and unlawful bodily injury on
the victim or another.”11 (emphasis added). Even though the
state charged Espinoza in the conjuctive—with accomplishing
the penetration by means of force, violence, duress, menace
and fear—this charge could have supported a conviction
based on duress alone. Under California law, a jury could
have convicted Espinoza if it found that he had accomplished
11
That count of the information reads in full:
On or about June 18, 1999, in the above named judicial district,
the crime of ANAL & GENITAL PENETRATION BY FOR-
EIGN OBJECT, FORCE & VIOLENCE, in violation of PENAL
CODE SECTION 289(a)(1), a felony, was committed by Arvin
Espinoza Morales, who did unlawfully cause the penetration of
the genital and anal openings of another and cause another person
to penetrate the defendant’s and another person’s genital and anal
openings for the purpose of sexual arousal, gratification, and
abuse by a foreign object, substance, instrument and device and
by an unknown object accomplished by force, violence, duress,
menace and fear of immediate and unlawful bodily injury on the
victim or another.
13850 UNITED STATES v. ESPINOZA-MORALES
the penetration by any one of the alleged means. See In re
Bushman, 463 P.2d 727, 732 (Cal. 1970) (“Merely because
the complaint is phrased in the conjunctive . . . does not pre-
vent a trier of fact from convicting a defendant if the evidence
proves only one of the alleged acts.”), overruled in part on
other grounds by People v. Lent, 541 P.2d 545, 548 n.1 (Cal.
1975). The jury instructions in the state court case—which
Espinoza submitted after oral argument and of which we take
judicial notice12—confirm this. These instructions directed the
jury that it “must be proved” that the “penetration was accom-
plished by [the use of force, violence, duress, menace or fear
of immediate and unlawful bodily injury to [the alleged vic-
tim].” (brackets in original; emphasis added). These instruc-
tions thus permitted the jury to convict Espinoza if it found
that he accomplished the penetration by means of duress
alone. The abstract of judgment provides no additional infor-
mation, but rather simply reflects that the jury convicted
Espinoza of violating section 289(a)(1). The criminal infor-
mation and abstract of judgment, taken together, therefore do
not establish that Espinoza was necessarily convicted of using
force that would render his conviction a crime of violence for
purposes of § 2L1.2(b)(1)(A)(ii)’s enhancement.
2. State Appellate Court Opinion
[12] The unpublished state appellate court opinion affirm-
ing Espinoza’s convictions and summarizing the facts under-
lying those convictions likewise does not establish that the
jury “necessarily” convicted him of conduct that would
amount to a crime of violence. Indeed, the state court opinion
does not even purport to describe the facts or elements that
the jury “necessarily” found. The opinion examines whether
Espinoza was denied his right under the Vienna Convention
to consult with consular representatives after his arrest. The
12
On June 18, 2010, Espinoza-Morales filed an unopposed motion
requesting that we take judicial notice of the jury instructions from his
state trial. We grant the motion.
UNITED STATES v. ESPINOZA-MORALES 13851
facts of Espinoza’s crime were not relevant to this question,
and the state court presented them only as background. The
opinion nowhere states or even suggests that the jury neces-
sarily found the facts recited to be true.13 The state court opin-
ion therefore clearly does not satisfy Taylor’s requirement
that a document must reflect what “the jury necessarily had to
find” in order to establish that an offense constituted a crime
of violence under the modified categorical approach. Because
the state court opinion does not satisfy this requirement, we
need not consider whether such an opinion, if it did show
what the jury necessarily found, would be sufficiently reliable
for a court to consider when applying the modified categorical
approach. See United States v. Strickland, 601 F.3d 963, 968
(9th Cir. 2010) (en banc); Snellenberger, 548 F.3d at 701-02.
The dissent suggests that Taylor permits us to look to the
facts underlying a conviction so long as we do not “put the
Defendant on trial” for his earlier convictions, re-weigh the
evidence, or make witness credibility determinations. Dissent
at 13857. This misapprehends Taylor. To be sure, the Court
in Taylor expressed concern that inquiring into the facts
underlying a defendant’s prior conviction could result in such
re-trials and accordingly would pose “practical difficulties
and potential unfairness.” See Taylor, 495 U.S. at 601. In par-
ticular, the Taylor Court noted that a court often would have
to look to “the Government’s actual proof at trial” to deter-
mine the defendant’s actual conduct in the prior case. Id. This
would lead to many tricky questions, as the Court explained:
Would the Government be permitted to introduce the
trial transcript before the sentencing court, or if no
transcript is available, present the testimony of wit-
nesses? Could the defense present witnesses of its
own and argue that the jury might have returned a
13
Without explanation or citation, the dissent conclusorily states that
this state court opinion does in fact recite the “necessary findings of the
jury.” Dissent at 13857. This contention is wholly unsupported.
13852 UNITED STATES v. ESPINOZA-MORALES
guilty verdict on some theory that did not require a
finding that the defendant committed [the generic
crime14]? If the sentencing court were to conclude,
from its own review of the record, that the defendant
actually committed [the generic crime], could the
defendant challenge this conclusion as abridging his
right to a jury trial?
Id. Contrary to the dissent’s suggestion, the Court did not
avoid these “daunting” problems by simply barring mini-trials
at which evidence would be re-weighed and witnesses’s credi-
bility re-evaluated. Id. Rather, to avoid these types of prob-
lems, the Court expressly held that a trial court applying the
modified categorical approach must generally “look only to
the fact of conviction and the statutory definition of the prior
offense.” Id. at 602.
The Court did, however, allow for a very limited inquiry
into the underlying facts. Specifically, the Court authorized
trial courts to look “beyond the mere fact of conviction in a
narrow range of cases where a jury was actually required to
find all the elements of [the generic crime].” Id. For example,
a court could conclude that a conviction was for the generic
crime where “the indictment or information and jury instruc-
tions show that the defendant was charged only with [the
generic crime], and that the jury necessarily had to find [the
generic element] to convict.” Id. In other words, a conviction
would qualify as a conviction for the generic crime under the
modified categorical approach only if the court could ascer-
tain, without looking to the underlying facts, that the jury nec-
essarily found that the defendant engaged in conduct
amounting to the generic crime.
Because a jury cannot convict a defendant of conduct not
charged in the indictment or information, we know that a jury
14
“Generic crime” refers to the crime identified as a crime of violence
in the statute or Guideline.
UNITED STATES v. ESPINOZA-MORALES 13853
“necessarily” convicted a defendant of the generic crime
where the indictment or information charges only the generic
crime. Similarly, where the jury instructions require the jury
to find the elements of the generic crime, we know that the
jury “necessarily” convicted the defendant of those elements.
Here, by contrast, where we do not have such limiting charg-
ing papers and where the jury instructions do not narrow the
charge to the generic crime, we cannot know what the jury
necessarily convicted the defendant of, and we cannot know
the conduct in which the defendant engaged without looking
to the underlying facts. Taylor precludes us from doing so.
See id. at 602. Indeed, the Court in Shepard rejected the sug-
gestion that courts should be permitted to look at a transcript
of a jury trial to conclude that the defendant was convicted of
the conduct shown by the evidence presented at trial. Id. at 22.
If we may not look to a jury trial transcript, we certainly may
not look to a state court’s description of the facts of a crime,
which simply summarizes the testimony and evidence
reflected in that transcript.
[13] Because neither the state court opinion nor the crimi-
nal information and abstract of judgment establish that the
jury necessarily convicted Espinoza of using force, the gov-
ernment has not met its burden to establish that either of
Espinoza’s convictions qualify as a crime of violence under
the modified categorical approach. The district court accord-
ingly erred in applying the 16-level crime of violence
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) in calculat-
ing Espinoza’s advisory Guidelines range.
C. Scope of Remand
The parties dispute whether we should allow the district
court to consider new evidence on remand. As a general rule,
when the district court errs in sentencing, we should vacate
and “remand for re-sentencing on an open record—that is,
without limitation on the evidence that the district court may
consider.” United States v. Matthews, 278 F.3d 880, 885 (9th
13854 UNITED STATES v. ESPINOZA-MORALES
Cir. 2002) (en banc). We may depart from this general rule,
however, when “additional evidence would not [change] the
outcome” or when “there was a failure of proof after a full
inquiry into the factual question at issue.” Id. at 886. This case
falls within the second exception: the government submitted
evidence to establish that Espinoza’s convictions constituted
crimes of violence under the modified categorical approach,
but it failed to submit evidence sufficient to meet its burden.
In light of this failure, we decline to give the government a
second bite at the apple. Further, because the universe of doc-
uments that the sentencing court may consider is limited, and
because the government has not identified—at oral argument
or in its post-argument response to Espinoza’s motion for
judicial notice of the jury instructions—any additional materi-
als it might be able to offer at re-sentencing, we remand for
re-sentencing on the existing record.
IV. CONCLUSION
[14] Neither of Espinoza’s convictions categorically quali-
fies as a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Moreover, because nothing in the record
of conviction shows that the jury necessarily convicted
Espinoza of conduct involving force, his convictions do not
qualify as crimes of violence under the modified categorical
approach. We accordingly vacate Espinoza’s sentence and
remand for re-sentencing on the existing record.
VACATED AND REMANDED.
WALTER, District Judge, dissenting:
After a thorough review of the facts and the law pertaining
to this case, I respectfully dissent.
The unpublished opinion of the Court of Appeal, Fourth
District for the State of California recounts the background
UNITED STATES v. ESPINOZA-MORALES 13855
facts surrounding the Defendant’s 1999 conviction for “anal
and genital penetration by foreign object using force (Pen.
Code, § 289, subd. (a)(1))” and “sexual battery by restraint
(§ 243.4, subd. (a)).” According to that court:
On June 18, 1998, Jane Doe was walking from a
train station in Ontario to pick up her son at his
baby-sitter’s house. Defendant came from behind,
put his arm around her neck and placed her in a
headlock. Jane Doe did not know defendant and had
never seen him before.
Defendant tried to kiss Jane Doe on the lips, but
she turned her face away. He pulled her face toward
him and kissed her on the face and neck and sucked
on her neck. Defendant then touched Jane Doe’s
breast and moved his hand down Jane Doe’s shorts.
He rubbed his hand on her vagina and put at least
one finger inside of it. He continued to keep his
other arm around her neck and tightened his grip.
During this ordeal, Jane Doe kept telling defendant
“no,” and that she had to leave.
Jane Doe unsuccessfully tried to use her elbow to
escape defendant’s hold on her. When she tried a
second time, defendant let go.
Subsequently the Defendant was apprehended and convicted
by a jury. He received an 8 year sentence. After being
released, he was deported.
In January 2009, the Defendant plead guilty to attempted
reentry following deportation in violation of 18 U.S.C.
§ 1326. Faced with the facts from the Defendant’s 1999 con-
viction, the District Court stated at sentencing:
The main bone of contention here obviously is
whether the Defendant’s prior felony sex offense
13856 UNITED STATES v. ESPINOZA-MORALES
conviction is or is not a crime of violence justifying
a 16-level upward adjustment under the guidelines.
It appears to the Court that it is whether you look at
[it] under [a] categorical or modified categorical
approach as set forth in U.S. v. Taylor . . . It seems
clearly in the definitions of, in the guidelines, what
we have is a crime of violence.
He was sentenced to 57 months. The Defendant appeals the
16-level increase the District Court imposed on his sentence
as a result of the Court’s finding that the Defendant had previ-
ously been convicted of a “crime of violence.” The Defen-
dant’s attorney did not dispute, at sentencing nor in her
sentencing memorandum, the facts as set out by the state
appellate court in 1999.
As the majority finds, the modified categorical approach
states that a conviction constitutes a crime of violence “only
if the record of conviction shows the jury ‘necessarily’ found
all of the generic elements, or the defendant ‘necessarily’
admitted all of the generic elements in a plea.” Sandoval-Lua
v. Gonzales, 499 F.3d 1121, 1131 (9th Cir. 2007) (citing Tay-
lor v. United States, 495 U.S. 575, 599-602 (1990), and Shep-
ard v. United States, 544 U.S. 13, 19-21 (2005)).
When the Supreme Court created the modified categorical
approach in Taylor, the Court issued an admonition to sen-
tencing judges regarding the “practical difficulties and poten-
tial unfairness of a factual approach” to determining
sentencing enhancements for prior convictions. 495 U.S. at
601. The Court rightly worried that sentencing courts might
be looking at convictions from years or even decades prior
with scant record in order to determine if prior convictions
qualified for sentencing enhancements. This, in the Court’s
opinion, could lead to a whole new “mini-trial” by the sen-
tencing judge thus implicating the defendant’s Sixth Amend-
ment right. In this instance, the majority believes that the
sentencing judge disregarded the Taylor admonition. I do not
UNITED STATES v. ESPINOZA-MORALES 13857
believe that the sentencing judge has run afoul of Taylor. No
re-weighing of the evidence has occurred. The sentencing
judge made no witness credibility determinations. The sen-
tencing judge did not put the Defendant on trial for his 1999
convictions. Instead, the sentencing judge merely looked to an
opinion issued by three of his state court brethren which
recited the underlying facts and necessary findings of the jury.
The question presented here is whether or not the District
Court could rely on the facts as elucidated by the State Appel-
late court. Recently, this Court in an en banc decision
expanded the materials that a sentencing court could rely on
in determining a sentence enhancement. United States v.
Strickland, 601 F.3d 963 (9th Cir. 2010) (en banc). The Court
held that a district court could rely on an out of state docket
sheet in determining if the prior conviction was a predicate
offense for sentencing purposes. Id. at 968.
Here, I believe that the unpublished State Court Appellate
opinion satisfies the requirement of reliability. First, it was
prepared by the court itself. Secondly, as stated unequivocally
in oral arguments, appellate judges plainly have a legal and
professional obligation to get the facts right. Finally, the
Defendant had the right to examine and challenge the opin-
ion’s content. Here, the Defendant could have challenged the
State Appellate Court’s factual findings after publication if he
disagreed with the court’s factual characterization. He did not
do so. Accordingly, the State Appellate Court opinion is reli-
able pursuant to Strickland and United States v. Snellenber-
ger, 548 F.3d 699, 701 (9th Cir. 2008)(en banc).
When, as here, a defendant puts the victim in a headlock
and choked her before fondling her breasts and penetrating
her with a foreign object, I am left with no doubt that he used
violent physical force to achieve his objective. Defendant has
never attempted to recast or recharacterize the facts of his
1999 conviction.
13858 UNITED STATES v. ESPINOZA-MORALES
Given these facts, the District Judge correctly found the
Defendant’s 1999 convictions were “crimes of violence” as
contemplated by the United States Sentencing Guidelines.
What the court below knew from the record in this case,
beyond doubt, is that the Defendant committed a “forcible sex
offense” which is an enumerated “crime of violence.” As this
Court, en banc, stated in its closing in Strickland, “[t]he modi-
fied categorical approach is not a judicial version of three-
card monte. Rather, the challenge is to determine whether a
conviction under a non-categorical state statute was clearly
based on facts that meet the federal generic definition of the
crime.” 601 F.3d at 970. (emphasis added).
As such, I would AFFIRM the sentence of the District
Court.