FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10579
Plaintiff - Appellee, D.C. No. 4:11-cr-01097-DCB-
GEE-1
v.
JUAN DAVID RIVERA-REYES, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted January 14, 2014
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,** Senior District
Judge.
Juan David Rivera-Reyes appeals his sentence following a plea of guilty to a
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
and 18 U.S.C. § 3742. Reviewing de novo, United States v. Johnson, 581 F.3d
994, 1001 (9th Cir. 2009), we vacate and remand for resentencing.
1. The district court improperly imposed a sixteen-level enhancement
pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2 based on
Rivera-Reyes’s conviction of Nebraska Revised Statutes section 28-319(1)(c),
which does not require as an element a four-year age differential.1 Therefore, for
purposes of section 2L1.2, Nebraska Revised Statutes section 28-319(1)(c) does
not categorically qualify as a forcible sex offense, statutory rape, sexual abuse of a
minor, or otherwise as a crime of violence. See Taylor v. United States, 495 U.S.
575, 602 (1990); United States v. Caceres-Olla, No. 12-10132, -- F.3d --, 2013 WL
6847127, at *5 (9th Cir. Dec. 23, 2013); United States v. Gomez, 732 F.3d 971,
989 n.18 (9th Cir. 2013) (“[T]he generic definition of ‘statutory rape’ does . . .
include the element of a four-year age differential.”); Estrada-Espinoza v.
Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008) (en banc). The district court’s error
was not harmless. See Gomez, 732 F.3d at 990.
1
Because the parties agree that Rivera-Reyes was convicted of subsection
(c) of Nebraska Revised Statutes section 28-319(1), we need not conduct a
modified categorical analysis. See Descamps v. United States, -- U.S. --, 133 S. Ct.
2276 (2013).
2
2. In light of the November 2013 amendment to U.S.S.G. § 3E1.1, and
because the government declined to move for a third-level reduction based on
Rivera-Reyes’s failure to waive his right to appeal, the government concedes that
Rivera-Reyes must be resentenced with respect to his acceptance of responsibility.
VACATED and REMANDED.
3