United States v. Pedro Cabrera-Gutierrez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30233
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-02027-WFN-1

PEDRO CABRERA-GUTIERREZ, ORDER AND
Defendant-Appellant. AMENDED OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted
April 11, 2013—Seattle, Washington

Filed June 3, 2013
Amended March 17, 2014

Before: A. Wallace Tashima and Consuelo M. Callahan,
Circuit Judges, and Raner C. Collins, District Judge.*

Order;
Opinion by Judge Tashima;
Partial Concurrence and Partial Dissent by Judge Callahan

*
The Honorable Raner C. Collins, Chief United States Judge for the
District of Arizona, sitting by designation.
2 UNITED STATES V. CABRERA-GUTIERREZ

SUMMARY**

Criminal Law

The panel granted a petition for panel rehearing, withdrew
an Opinion filed June 3, 2013, filed an Amended Opinion and
concurring and dissenting opinion, and denied a petition for
rehearing en banc as moot, in a case in which the defendant
was convicted of failing to register under the Sex Offender
Registration and Nationality Act.

In the Amended Opinion, the panel affirmed the
conviction, but vacated the sentence and remanded for
resentencing.

The panel held that Congress has authority under the
Commerce Clause to compel the defendant, a convicted sex
offender who traveled interstate, to register under SORNA as
a sex offender.

The panel held that the district court erred in sentencing
the defendant as a Tier III sex offender under 42 U.S.C.
§ 16911(4) based on his prior conviction of second degree
sexual abuse under Or. Rev. Stat. § 163.425. Applying the
categorical approach, the panel held that § 163.425 is broader
than the federal crime of sexual abuse. The panel held that
§ 163.425 is not divisible within the meaning of the Supreme
Court’s decision in Descamps v. United States, and that
application of the modified categorical approach is therefore
precluded.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. CABRERA-GUTIERREZ 3

The panel instructed the district court to consider on
remand whether the defendant should receive a third level of
reduction for acceptance of responsibility in light of the
November 1, 2013, amendment to U.S.S.G. § 3E1.1(b).

Judge Callahan concurred and dissented. She agreed that
Congress had the authority to enact SORNA and that
SORNA’s application to the defendant is constitutional.
Because she reads the relevant Oregon statutes to be
“divisible” as defined in Descamps, she would hold that the
district court properly sentenced the defendant as a Tier III
sex offender.

COUNSEL

Rebecca L. Pennell, Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellant.

Michael C. Ormsby, United States Attorney, and Alison L.
Gregoire (argued), Assistant United States Attorney, Yakima,
Washington, for Plaintiff-Appellee.
4 UNITED STATES V. CABRERA-GUTIERREZ

ORDER

Defendant-Appellant’s petition for panel rehearing is
granted. The Opinion, filed June 3, 2013, and reported at
718 F.3d 873, is withdrawn and replaced by the Amended
Opinion and concurring and dissenting opinion filed
concurrently with this Order. The petition for rehearing en
banc is denied as moot. Further petitions for panel rehearing
and/or rehearing en banc may be filed with respect to the
Amended Opinion.

OPINION

TASHIMA, Circuit Judge:

Our original Opinion was filed on June 3, 2013. See
United States v. Cabrera-Gutierrez, 718 F.3d 873 (9th Cir.
2013). Shortly thereafter, on June 20, 2013, the Supreme
Court decided Descamps v. United States, 133 S. Ct. 2776
(2013), which worked a substantial change in sentencing law.
We therefore granted the petition for panel rehearing and
withdrew our Opinion. We now affirm the conviction, but
vacate the sentence and remand for resentencing.

Pedro Cabrera-Gutierrez (“Cabrera”) appeals his
conviction and sentence for failing to register under the Sex
Offender Registration and Notification Act (“SORNA”). On
appeal he advances two arguments. First, he contends that
Congress lacked authority under the Commerce Clause to
compel his registration as a sex offender. Second, he
contends that the district court erred in sentencing him as a
 UNITED STATES V. CABRERA-GUTIERREZ 5

Tier III sex offender based on his prior conviction of second
degree sexual abuse.1

We reject Cabrera’s first argument, but agree with his
second. We hold that Congress has authority under the
Commerce Clause to compel Cabrera, a convicted sex
offender who traveled interstate, to register under SORNA.
But, following the Supreme Court’s recent decision in
Descamps, we hold that the district court erred when it
applied the modified categorical approach in sentencing
Cabrera as a Tier III sex offender. Descamps precludes
application of the modified categorical approach in this case.

I.

Cabrera was born in Mexico and has been removed from
the United States several times. In 1998, Cabrera was

1
Cabrera raises a third issue: whether the government improperly
denied him a third level of reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b). While our precedents foreclosed Cabrera’s
contention at the time of our original Opinion, see United States v.
Johnson, 581 F.3d 994, 1001 (9th Cir. 2009), § 3E1.1was amended,
effective November 1, 2013, to clarify that “the government should not
withhold . . . a motion [for reduction for acceptance of responsibility]
based on interests not identified in § 3E1.1, such as whether the defendant
agrees to waive his or her right to appeal.” U.S.S.G. § 3E1.1, comment
n.6. This amendment applies to this case. See United States v. Catalan,
701 F.3d 331, 333 (9th Cir. 2012) (“When an amendment to the
Guidelines clarifies, rather than alters, existing law, we use the
amendment to interpret the Guidelines provision retroactively.”). Because
we vacate Cabrera’s sentence and remand for resentencing based on
Cabrera’s erroneous classification as a Tier III offender, see infra, we need
not consider the effect of this amendment. The district court, however,
should consider on remand whether Cabrera should receive a third level
of reduction for acceptance of responsibility in light of this amendment.
6 UNITED STATES V. CABRERA-GUTIERREZ

convicted in Oregon of second degree sexual abuse. In his
guilty plea statement, Cabrera admitted:

I on May 2, 1998 did knowingly have sexual
intercourse with [redacted] and she was
unable to legally consent to having sexual
intercourse with me because she was under
the influence of alcohol at the time of the
sexual intercourse. Further [redacted] was 15
years old on May 2, 1998.

Cabrera was sentenced to 36 months’ imprisonment and
required to register as a sex offender. When Cabrera was
released from custody in September 2000, he was advised of
his responsibility to register as a sex offender under Oregon
law and promptly removed to Mexico.

On February 3, 2012, Cabrera was arrested for a traffic
violation in Yakima, Washington. He was subsequently
charged with failing to register as a sex offender in violation
of 18 U.S.C. § 2250. The indictment alleged that Cabrera
was an individual who was required to register under
SORNA, and having traveled in interstate commerce, did
knowingly fail to register in violation of 18 U.S.C. § 2250.
It further alleged that Cabrera failed to meet his registration
obligation during the period February 3, 2011, through
February 3, 2012.

Cabrera filed a motion to dismiss the indictment, arguing
that Congress lacked authority to require him to register as a
sex offender. The district court denied the motion, noting that
although United States v. George, 625 F.3d 1124 (9th Cir.
2010), had been vacated, 672 F.3d 1126 (9th Cir. 2012), “the
Court finds the reasoning in George persuasive and notes that
 UNITED STATES V. CABRERA-GUTIERREZ 7

the opinion was vacated on different grounds.” Thereafter,
Cabrera entered a conditional plea of guilty, preserving his
right to appeal the denial of his motion to dismiss.

The Pre-Sentence Investigation Report (“PSR”) listed
Cabrera’s offense level as 16 under U.S.S.G. § 2A3.5(a)(1)
because he was required to register as a Tier III sex offender.
Cabrera objected to the PSR. He argued that his prior
conviction only qualified him as a Tier I sex offender, not a
Tier III offender, because his Oregon conviction was not
comparable to, or more severe than, “aggravated sexual abuse
or sexual abuse,” as defined in 42 U.S.C. § 16911. The
district court rejected this argument, noting that Cabrera’s
guilty plea admitted that the girl was intoxicated and fifteen
years old. The court sentenced Cabrera to seventeen months’
imprisonment and three years’ supervised release. Cabrera
timely appeals from his conviction and sentence.

II.

We review the district court’s denial of Cabrera’s motion
to dismiss the indictment de novo. United States. v.
Milovanovic, 678 F.3d 713, 719–20 (9th Cir. 2012) (en banc);
United States v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004).

SORNA requires sex offenders to, among other things,
register their names, addresses, employment or school
information, update that information, and appear in person at
least once a year for verification of the information.
42 U.S.C. § 16901 et seq. These obligations, Cabrera asserts,
are an unconstitutional regulation of his inactivity under the
Supreme Court’s recent opinion in National Federation of
Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).
Cabrera accepts that Congress has broad powers under the
8 UNITED STATES V. CABRERA-GUTIERREZ

Commerce Clause, but points out that in Sebelius, the Court
stated that “[c]onstruing the Commerce Clause to permit
Congress to regulate individuals precisely because they are
doing nothing would open a new and potentially vast domain
to congressional authority.” Id. at 2587. Cabrera further
argues that, unlike the Affordable Care Act at issue in
Sebelius, SORNA has nothing to do with commerce. Its
purpose is to “protect the public from sex offenders and
offenders against children.” 42 U.S.C. § 16901. He argues
that this purpose, while laudable, is not an appropriate
purpose under the Commerce Clause because public safety
measures lie exclusively in the realm of the States.

In anticipation of the government’s reliance on “an
additional jurisdictional hook,” such as travel across state
lines, Cabrera argues that SORNA requires all sex offenders
to register, regardless of travel, and that the duty to register
under SORNA precedes any act of travel. Thus, he continues,
“SORNA would hold an individual who fails to register,
travels and then registers equally responsible as an individual
who never registers, before or after travel.” He argues, citing
Sebelius, 132 S. Ct. at 2590, that “the proposition that
Congress may dictate conduct of an individual today [i.e.,
registering as a sex offender] because of prophesied future
activity [i.e., interstate travel] finds no support in [the
applicable Commerce Clause] precedent.” Cabrera concludes
that because Congress lacks the power to require an
individual to register as a sex offender, it follows that it
cannot penalize him for failing to register, even if he has
traveled in interstate commerce.

We are not persuaded. In United States v. Lopez,
514 U.S. 549 (1995), the Supreme Court recognized
Congress’s “broad” power under the Commerce Clause to
 UNITED STATES V. CABRERA-GUTIERREZ 9

regulate: (1) “the use of the channels of interstate
commerce”; (2) “the instrumentalities of interstate commerce,
or persons or things in interstate commerce, even though the
threat may come only from intrastate activities”; and
(3) “those activities having a substantial relation to interstate
commerce.” Id. at 558–59 (citations omitted). The
government asserts that the requirement of interstate travel
meets “the first two categories of Congress’ Commerce
Clause authority, because an interstate traveler is both a
person “in interstate commerce” and one who uses the
“channels of interstate commerce.”

We held in George, 625 F.3d at 1130, vacated on other
grounds, 672 F.3d 1126, that “Congress had the power under
its broad commerce clause authority to enact the SORNA,”
and we now reaffirm that holding, which has been embraced
by our fellow circuits. In George, we explained:

SORNA was enacted to keep track of sex
offenders. See Carr v. United States,
560 U.S. 438, 455 (2010) (“[SORNA was]
enacted to address the deficiencies in prior
law that had enabled sex offenders to slip
through the cracks.”). Such offenders are
required to “register, and keep registration
current, in each jurisdiction” where the
offender lives, works, or goes to school.
42 U.S.C. § 16913(a). As stated by the Eighth
Circuit, “[t]his language indicates Congress
wanted registration to track the movement of
sex offenders through different jurisdictions.”
United States v. Howell, 552 F.3d 709, 716
(8th Cir. 2009). “Under § 2250, Congress
limited the enforcement of the registration
10 UNITED STATES V. CABRERA-GUTIERREZ

requirement to only those sex offenders who
were either convicted of a federal sex offense
or who move in interstate commerce.” Id.
(citing 18 U.S.C. § 2250(a)(2)). The
requirements of § 16913 are reasonably aimed
at “regulating persons or things in interstate
commerce and the use of the channels of
interstate commerce.” Id. at 717 (quoting
[United States v.] May, 535 F.3d [912,] 921
[(8th Cir. 2008)]) (quotation marks omitted).

625 F.3d at 1129–30 (emendations, except in the last
sentence, in the original).

George noted that, in addition to the Eighth Circuit, the
Fourth, Fifth, Tenth, and Eleventh Circuits had upheld
SORNA’s constitutionality under the Commerce Clause.2 Id.
at 1130. The Second Circuit has also affirmed the

2
See United States v. Gould, 568 F.3d 459, 471 (4th Cir. 2009) (holding
“that § 2250(a) does not violate the Commerce Clause”); United States v.
Whaley, 577 F.3d 254, 258 (5th Cir. 2009) (“Through § 2250, Congress
has forbidden sex offenders from using the channels of interstate
commerce to evade their registration requirements, and we have no doubt
that it was within its power under the Commerce Clause to do so.”);
United States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008) (“By
requiring that a sex offender travel in interstate commerce before finding
a registration violation, SORNA remains well within the constitutional
boundaries of the Commerce Clause.”), abrogated on other grounds by
Reynolds v. United States, 132 S. Ct. 975, 978 (2012); United States v.
Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009) (“Section 2250 is a proper
regulation falling under either of the first two Lopez categories because it
regulates both the use of channels of interstate commerce and the
instrumentalities of interstate commerce.”).
 UNITED STATES V. CABRERA-GUTIERREZ 11

constitutionality of SORNA under the Commerce Clause.3 In
at least two extant opinions, we have approvingly referenced
George.4 Moreover, the Supreme Court’s opinions in
Reynolds v. United States, 132 S. Ct. 975 (2012), and Carr v.
United States, 560 U.S. 428 (2010), affirming but limiting
SORNA, implicitly affirm SORNA’s constitutionality.

We recognize, as Cabrera observes, that only SORNA’s
penalty provision, 18 U.S.C. § 2250, and not its registration
provision, 42 U.S.C. § 16913, contains an interstate travel
requirement. But we reject the significance of the distinction
for several reasons. First, because Cabrera was charged and
convicted of failing to register after having traveled in
interstate commerce, it is questionable whether he may
properly challenge the duty to register without interstate
travel. More importantly, such a parsing of SORNA has been
rejected by the Supreme Court and the circuit courts that have
considered the issue. In Carr, the Court explained that
“Section 2250 is not a stand-alone response to the problem of
missing sex offenders; it is embedded in a broader statutory
scheme enacted to address the deficiencies in prior law that
had enabled sex offenders to slip through the cracks.”
560 U.S. at 455 (citation omitted). The Seventh Circuit
explained the symbiotic relationship between the two sections

3
See United States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010) (“We
have no difficulty concluding that § 2250(a) is a proper congressional
exercise of the commerce power under Lopez.”).
4
See United States v. Fernandes, 636 F.3d 1254, 1256 n.2 (9th Cir.
2011) (per curiam) (noting the argument that SORNA “is an invalid
exercise of Congress’ power under the Commerce Clause was rejected by
this court” in George); United States v. Valverde, 628 F.3d 1159, 1161
(9th Cir. 2010) (noting that George’s holding of constitutionality was
binding).
12 UNITED STATES V. CABRERA-GUTIERREZ

in United States v. Sanders, 622 F.3d 779, 783 (7th Cir.
2010), stating:

[S]ection 16913 cannot be divorced from
section 2250 in evaluating whether the
Commerce Clause gives Congress the
authority to require anyone convicted of a sex
offense to register. Imposing a duty to
register as a matter of federal law would do
little to solve the problem of sex offenders
slipping through the cracks absent the
enforcement mechanism supplied by section
2250. Interstate travel by a sex offender is not
merely a jurisdictional hook but a critical part
of the problem that Congress was attempting
to solve, for whenever sex offenders cross
state lines they tend to evade the ability of any
individual state to track them and thereby
“threaten the efficacy of the statutory scheme
. . . .” [Carr, 130 S. Ct.] at 2239; see also id.
at 2238 (it was reasonable for Congress to
give States primary responsibility to supervise
and ensure compliance among state sex
offenders and subject such offenders to
federal criminal liability only when “they use
the channels of interstate commerce in
evading a State’s reach”); id. at 2240 (act of
travel by sex offender is not merely a
jurisdictional predicate but is “the very
conduct at which Congress took aim”); id. at
2241 (section 2250 “subject[s] to federal
prosecution sex offenders who elude
SORNA’s registration requirements by
traveling in interstate commerce”).
 UNITED STATES V. CABRERA-GUTIERREZ 13

The Second, Fifth, Eighth, and Eleventh Circuits are in
accord.5 Because SORNA’s registration requirement is
necessary to the effectuation of the broader SORNA scheme,
we agree with our sister circuits6 in concluding that the

5
See Guzman, 591 F.3d at 90 (“Sections 2250 and 16913 were enacted
as part of the Adam Walsh Child Protection and Safety Act of 2006, and
are clearly complementary . . . .” (internal quotation mark omitted));
Whaley, 577 F.3d at 259 (same); United States v. Howell, 552 F.3d 709,
716 (8th Cir. 2009) (“[T]he statutory scheme Congress created to enforce
§ 16913 demonstrates Congress was focused on the interstate movement
of sex offenders, not the intrastate activity of sex offenders.”); Ambert,
561 F.3d at 1212 (commenting that “an examination of § 16913 and
§ 2250 makes the interstate focus abundantly clear,” and “the only federal
enforcement provision against individuals is found in § 2250, which
explicitly subjects state sex offenders to federal prosecution under
SORNA only if they travel in interstate or foreign commerce and fail to
register under § 16913” (internal quotation marks and emphasis omitted)).
6
See Guzman, 591 F.3d at 91 (stating “[t]o the extent that § 16913
regulates solely intrastate activity, its means are reasonably adapted to the
attainment of a legitimate end under the commerce power” (internal
quotation marks omitted)); United States v. Pendleton, 636 F.3d 78, 88 (3d
Cir. 2011) (holding that Ҥ 16913 is a law made in pursuance of the
constitution because it is necessary and proper for carrying into execution
Congress’s power under the Commerce Clause” (internal quotation marks
and citations omitted)); Gould, 568 F.3d at 475 (stating “[r]equiring all sex
offenders to register is an integral part of Congress’ regulatory effort and
the regulatory scheme could be undercut unless the intrastate activity were
regulated” (internal quotation marks omitted)); Whaley, 577 F.3d at 261
(concluding that “requiring sex offenders to register both before and after
they travel in interstate commerce . . . is ‘reasonably adapted’ to the goal
of ensuring that sex offenders register and update previous registrations
when moving among jurisdictions”); United States v. Vasquez, 611 F.3d
325, 331 (7th Cir. 2010) (holding that “[t]o the extent that § 16913
regulates solely intrastate activity, the regulatory means chosen are
reasonably adapted to the attainment of a legitimate end under the
commerce power” (internal quotation marks omitted)); Ambert, 561 F.3d
14 UNITED STATES V. CABRERA-GUTIERREZ

Necessary and Proper Clause provided Congress ample
authority to enact § 16913 and to punish a state sex offender
who, like Cabrera, traveled interstate, for failing to register.
Cf. United States v. Kebodeaux, 133 S. Ct. 2496, 2502–05
(2013) (holding that the Necessary and Proper Clause enabled
SORNA’s application to a pre-enactment federal offender);
United States v. Elk Shoulder, 738 F.3d 948, 958–59 (9th Cir.
2013) (same).

Finally, unlike Sebelius, SORNA does not regulate
individuals “precisely because they are doing nothing.”
132 S. Ct. at 2587. SORNA applies only to individuals who
have been convicted of a sexual offense. Thus, registration
is required only of those individuals who, through being
criminally charged and convicted, have placed themselves in
a category of persons who pose a specific danger to society.
Moreover, SORNA’s application to Cabrera is based on his
further admitted activities of traveling in interstate commerce
and then failing to register. Thus, SORNA does not punish
the type of inactivity addressed in Sebelius.

In sum, agreeing with our sister circuits, we see no reason
to depart from our previously expressed reasoning in George.
We thus conclude that Congress had the authority to enact
SORNA and that SORNA’s application to Cabrera is
constitutional.

III.

In considering Cabrera’s challenge to his sentence, we
review a district court’s interpretation of the Sentencing

at 1212 (“Section 16913 is reasonably adapted to the attainment of a
legitimate end under the commerce clause.”).
 UNITED STATES V. CABRERA-GUTIERREZ 15

Guidelines de novo, and its factual findings for clear error.
United States v. Swank, 676 F.3d 919, 921 (9th Cir. 2012);
United States v. Laurienti, 611 F.3d 530, 551–52 (9th Cir.
2010).7

A.

As applied to Cabrera’s situation, 42 U.S.C. § 16911(4)
defines a “tier III sex offender” as “a sex offender whose
offense is punishable by imprisonment for more than 1 year
and . . . is comparable to or more severe than . . . aggravated
sexual abuse or sexual abuse (as described in sections 2241
and 2242 of Title 18).”8 Section 2242 defines the crime of

7
We have noted “an intracircuit conflict as to whether the standard of
review for application of the Guidelines to the facts is de novo or abuse of
discretion.” Swank, 676 F.3d at 921–22. As in those cases, however, we
need not resolve this conflict because our conclusion is the same under
either standard. See id. at 922; Laurienti, 611 F.3d at 552.
8
42 U.S.C. § 16911(4) defines a Tier III offender as follows:

The term “tier III sex offender” means a sex offender
whose offense is punishable by imprisonment for more
than 1 year and –

(A) is comparable to or more severe than the
following offenses, or an attempt or conspiracy to
commit such an offense:

(i) aggravated sexual abuse or sexual abuse
(as described in sections 2241 and 2242 of
Title 18); or

(ii) abusive sexual contact (as described in
section 2244 of Title 18) against a minor who
has not attained the age of 13 years;
16 UNITED STATES V. CABRERA-GUTIERREZ

sexual abuse to include knowingly (1) causing another to
engage in a sexual act “by threatening or placing that person
in fear,” or (2) engaging in a sexual act with another who is
“(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or
communicating unwillingness to engage in, that sexual act.”9

(B) involves kidnapping of a minor (unless
committed by a parent or guardian); or

(C) occurs after the offender becomes a tier II sex
offender.
9
18 U.S.C. § 2242 reads:

Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
or in any prison, institution, or facility in which persons
are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal
department or agency, knowingly –

(1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other
than by threatening or placing that other person in fear
that any person will be subjected to death, serious
bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that
other person is–

(A) incapable of appraising the nature of the
conduct; or

(B) physically incapable of declining participation
in, or communicating unwillingness to engage in,
that sexual act;
 UNITED STATES V. CABRERA-GUTIERREZ 17

The Oregon statute under which Cabrera was convicted
provided:

A person commits the crime of sexual abuse
in the second degree when that person
subjects another person to sexual intercourse,
deviate sexual intercourse or, [with certain
exceptions], penetration of the vagina, anus or
penis with any object not a part of the actor’s
body, and the victim does not consent thereto.

Or. Rev. Stat. § 163.425 (1998).

B.

Our task is to determine whether Cabrera’s prior state
conviction under § 163.425 may properly serve as a predicate
for his classification as a Tier III sex offender under
42 U.S.C. § 16911(4). That is, we must decide whether the
conviction is “comparable to or more severe than” the federal
crime of sexual abuse.

In making this comparison, we follow the categorical
approach established in Taylor v. United States, 495 U.S. 575
(1990), as recently refined in Descamps.10 Under that
approach, a sentencing court must begin by comparing the
statutory definition of the prior offense with the elements of

or attempts to do so, shall be fined under this title and
imprisoned for any term of years or for life.
10
Descamps applies to this case because the Supreme Court issued its
opinion while this case was still “pending direct review [and] not yet
final.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
18 UNITED STATES V. CABRERA-GUTIERREZ

the “generic” federal offense specified as a sentencing
predicate. Descamps, 133 S. Ct. at 2283 (quoting Taylor,
495 U.S. at 599–600). The prior conviction may operate as
a predicate if it is defined more narrowly than, or has the
same elements as, the generic federal crime. Id. If, however,
the statute defining the prior offense “sweeps more broadly
than the generic crime,” the prior offense cannot serve as a
statutory predicate. Id. Descamps affirms that the “key” to
this comparison is “elements, not facts.” Id. A sentencing
court may not consult “extra-statutory materials,” id. at 2287,
“even if [the materials show that] the defendant actually
committed the [predicate] offense in its generic form,” id. at
2283. The crime’s elements are all that is relevant. Id.

Applying the categorical approach, we conclude that the
statute of Cabrera’s conviction, Or. Rev. Stat. § 163.425, is
broader than the federal crime of sexual abuse.11 The Oregon
statute requires the subjection of another to certain types of
sexual activity and “the victim does not consent thereto.” Or.
Rev. Stat. § 163.425(1). The statute’s non-consent element
applies broadly, both where a victim does not actually
consent and where the victim lacks capacity to consent. See
State v. Ofodrinwa, 300 P.3d 154, 167 (Or. 2013) (en banc).

By contrast, the generic federal crime of sexual abuse
requires that a defendant cause another to engage in a sexual
act by certain types of threat or fear or to engage in a sexual
act with a victim who is mentally or physically incapable.
18 U.S.C. § 2242. The Oregon statute, therefore, penalizes a
broader class of behavior than the federal statute. Non-
consensual intercourse with a mentally and physically

11
The government concedes as much in its briefing, as does the partial
dissent. See Partial Dissent at 31.
 UNITED STATES V. CABRERA-GUTIERREZ 19

capable individual not involving a threat or the use of fear
might violate Or. Rev. Stat. § 163.425, but it would not
violate 18 U.S.C. § 2242.

Oregon and federal law also diverge on the age at which
an individual gains legal capacity to consent to a sexual act.
Compare Or. Rev. Stat. § 163.315 (stating that anyone under
eighteen years of age is legally incapable of consent), with
United States v. Acosta-Chavez, 727 F.3d 903, 908–09 (9th
Cir. 2013) (recognizing that federal law defines a minor as
someone under sixteen years of age). Thus, sexual
intercourse with a person under eighteen, but not under
sixteen, would violate Or. Rev. Stat. § 163.425, but not
necessarily 18 U.S.C. § 2242. In this respect also, § 163.425
sweeps more broadly than § 2242.

Because Or. Rev. Stat. § 163.425 “sweeps more broadly”
than 18 U.S.C. § 2242, Cabrera’s statute of conviction is not
a categorical match to the federal crime of sexual abuse.
Absent an exception to this categorical rule, Cabrera’s prior
conviction cannot serve as a predicate for his classification as
a Tier III sex offender under 42 U.S.C. § 16911(4).

C.

The government contends that such an exception applies
in this case. Taylor and Descamps recognize that, in a
“narrow range of cases,” courts may look beyond the
statutory definition of a prior offense to certain other
documents, including a defendant’s plea agreement.
Descamps, 133 S. Ct. at 2283–84 (quoting Taylor, 495 U.S.
at 602). Cabrera admitted in his plea statement that the
victim of his crime was both intoxicated and a minor. The
district court relied on those admissions in determining that
20 UNITED STATES V. CABRERA-GUTIERREZ

Cabrera committed a crime “comparable to or more severe
than” sexual abuse and that Cabrera qualified as a Tier III
offender.

While our previous case law might have permitted the
district court’s approach – known as the “modified
categorical approach” – in this case, we conclude that
Descamps now forecloses it. Descamps clarifies that the
modified categorical approach is available only when a
defendant is convicted of violating a statute that sets out
multiple, “divisible” elements. Id. at 2281, 2285. In such
cases, the statute “effectively creates ‘several different . . .
crimes’” pertaining to the possible combinations of
alternative elements. Id. (quoting Nijhawan v. Holder,
557 U.S. 29, 41 (2009)). Thus, a sentencing court may
consult certain extra-statutory materials to identify the
defendant’s actual crime of conviction and to compare the
elements of that crime with the generic crime. Id. at
2284–85. Where, however, a statute states a single,
indivisible set of elements, the modified categorical approach
“has no role to play.” Id. In such cases, the sentencing court
need not – indeed, cannot – consult extra-statutory materials
to determine “which crime formed the basis of the
defendant’s conviction,” id. at 2284, because only the single
set of indivisible elements could apply.

We hold that Or. Rev. Stat. § 163.425 is not divisible
within the meaning of Descamps. The statute, by its terms,
states only two elements: (1) the subjection of another to
certain types of sexual activity and (2) non-consent. These
elements are indivisible, not alternative; a conviction under
§ 163.425 requires that both elements are satisfied. As in
Descamps, then, “[w]e know [Cabrera’s] crime of
conviction” – the subjection of another to intercourse without
 UNITED STATES V. CABRERA-GUTIERREZ 21

that person’s consent – and the modified approach has “no
role to play.” Descamps, 133 S. Ct. at 2285–86.

In support of its position that § 163.425 states divisible
elements, the government points to Or. Rev. Stat. § 163.315,
which lists four types of legal incapacity to consent. Or. Rev.
Stat. § 163.315 (1998) (stating that a person is incapable of
consenting if that person is under eighteen years of age,
mentally defective, mentally incapacitated, or physically
helpless); see also United States v. Beltran-Munguia,
489 F.3d 1042, 1045 (9th Cir. 2007). The government
contends that the listing of “several alternative modes” of
non-consent in Or. Rev. Stat. § 163.315 renders Or. Rev. Stat.
§ 163.425 divisible.

We reject the government’s argument for the simple
reason that Cabrera was convicted of violating § 163.425, not
§ 163.315. Even if § 163.315 establishes four “alternative
modes” of proving lack of consent, none of these four modes
need be proven in order to convict a defendant of second
degree sexual abuse. A statute cannot state elements of a
crime if none of those “elements” need apply to secure a
conviction. See Beltran, 489 F.3d at 1045 (“To constitute an
element of a crime, the particular factor in question needs to
be ‘a ‘constituent part’ of the offense [that] must be proved
by the prosecution in every case to sustain a conviction under
a given statute.’” (alteration and emphasis in original) (citing
United States v. Hasan, 983 F.2d 150, 151 (9th Cir. 1992)
(per curiam))).

Neither the text of the statute nor Oregon case law
supports the position that the phrase “does not consent” in
§ 163.425 is limited to the forms of non-consent delineated in
§ 163.315. Section 163.425 does not reference § 163.315,
22 UNITED STATES V. CABRERA-GUTIERREZ

and no provision of the Oregon criminal code purports to
define the phrase “does not consent.” Contrary to the
government’s contention, § 163.315 is not a “definitional
provision.”12 As we have recognized elsewhere, § 163.315,
entitled “Incapacity to consent,” merely “delineates four
types of legal incapacity that apply to all sexual offenses
listed in the Oregon criminal code.” Beltran, 489 F.3d at
1045. The “four types” are alternative avenues of proving
non-consent in all cases. But they are not the exclusive
means of doing so, including in cases of victims who do not
lack capacity to consent.13 Indeed, it would be odd for the

12
This fact distinguishes this case from Ganzhi v. Holder, 624 F.3d 23
(2d Cir. 2010), on which the government relies. Ganzhi held, as the
government observes, that an otherwise indivisible statute could be
rendered divisible by a “separate definitional provision” setting out
alternative means of accomplishing an element of the indivisible crime.
Id. at 29–30. But in both examples at play in Ganzhi, the language of the
definitional provisions indicated that the provisions exhaustively defined,
in all cases, the meaning of the indivisible element. See id. at 29 (citing
N.Y. Penal Law § 135.00 (stating that “[r]estrain” – an element of the
relevant crime – “means” certain acts (emphasis added))); id. at 30 (citing
N.Y. Penal Law § 130.05 (stating that “lack of consent” – an element of
the relevant crime – “results from” certain acts (emphasis added))). Here,
no language in Or. Rev. Stat. § 163.315 purports to define the phrase
“does not consent” in § 163.425. Section 163.315 merely lists four
possible ways of demonstrating a lack of consent – those involving legal
incapacity. In any case, Ganzhi predated Descamps, limiting its relevance
to our analysis.
13
Thus, for example, intercourse perpetrated by the use of force – the
subject of Beltran’s analysis – might not implicate any of the “four types”
listed in § 163.315. We doubt that Oregon would be unable to convict a
defendant of second degree sexual abuse if the defendant forcibly raped
another person but that person was not a minor, mentally defective,
mentally incapacitated, or physically helpless. Or. Rev. Stat. § 163.315;
id. § 163.305(5) (defining “physically helpless” as “unconscious or for
 UNITED STATES V. CABRERA-GUTIERREZ 23

Oregon legislature to have defined § 163.425’s non-consent
requirement in § 163.315 without having so much as
referenced § 163.315 or employed the same terminology in
each.

Further, the government cites no support for its position
that § 163.315 defines the non-consent element of § 163.425.
To the contrary, Oregon appears routinely to charge and
convict defendants of second degree sexual abuse without
reference to any one of the four “alternative modes”
contained in § 163.315.14 Oregon’s model jury instructions
listing the “elements” of second degree sexual abuse reflect
that practice. See Or. Uniform Crim. Jury Instr. No. 1613
(omitting mention of § 163.315 or its four modes).

A recent decision of the Oregon Supreme Court further
reinforces our reading of §163.425. In Ofodrinwa, 300 P.3d
154, the court was confronted with the question of whether
the phrase “does not consent” in § 163.425 refers “only to
those instances in which [a] victim does not actually consent”
or whether it also “includes instances in which the victim
lacks the capacity to consent.” Id. at 155. The fact that the
Supreme Court had to ask whether legal incapacity can

any other reason . . . physically unable to communicate”). We understand
“does not consent” in § 163.425 to encompass such abuses.
14
A quick search of second degree sexual abuse convictions and the
underlying indictments yields, e.g., State v. Steltz, 313 P.3d 312, 313–16
(Or. App. 2013), State v. Roquez, 308 P.3d 250, 252–53 (Or. App. 2013),
State v. Calhoun, 280 P.3d 1045 (Or. App. 2012), and State v. Jackson,
36 P.3d 500, 500–01 (Or. App. 2001). None of the convictions in these
cases – all reversed on unrelated grounds – involved victims who were
argued to be minors, mentally defective, mentally incapacitated, or
physically helpless.
24 UNITED STATES V. CABRERA-GUTIERREZ

satisfy the “does not consent” requirement strongly suggests
that that requirement neither naturally refers to nor is limited
to legal incapacity. It would be odd, again, for the Oregon
legislature to have defined “does not consent” by a provision
entitled “Incapacity to consent,” especially where nothing in
§ 163.315 clearly encompasses actual non-consent. We do
not attribute to the Oregon legislature such an oddity. The
most logical reading of the statute is that non-consent under
§ 163.425 is broader than the forms of non-consent specified
in § 163.315. Thus, § 163.315 cannot state elements of
second degree sexual abuse, because none needs to apply to
sustain a conviction.

Finally, our dissenting colleague argues that § 163.425 is
divisible because – as Ofodrinwa makes clear – the statute
“covers the offense of sexual intercourse where the victim,
although capable of consenting, does not consent, as well as
the offense of sexual intercourse where the victim is
incapable of consenting.” Partial Dissent at 36–37. But the
fact that § 163.425 “covers” multiple means of commission,
and that a separate provision of the Oregon code specifies one
of those means (legal incapacity), does not render § 163.425
divisible. Indeed, Descamps rejects our dissenting
colleague’s approach almost exactly. Like the partial dissent,
the lower court in Descamps defended application of the
modified categorical approach based on the court’s
conclusion that the statute at issue in that case “create[d] an
implied list of every means of commission,” even though the
statute did not explicitly state those means. Descamps, 133 S.
Ct. at 2289 (alterations in original) (quoting United States v.
Aguila-Montes de Oca, 655 F.3d 915, 927 (9th Cir. 2011) (en
 UNITED STATES V. CABRERA-GUTIERREZ 25

banc)) (internal quotation marks omitted).15 Similarly, the
dissent here argues that the phrase “does not consent” in
§ 163.425 is divisible because the phrase implicitly covers
both actual non-consent and incapacity to consent.
Descamps, however, rejects that approach because it would
not “enable a sentencing court to conclude that a jury (or
judge at a plea hearing) has convicted the defendant of every
element of the generic crime.” Id. at 2290. In other words,
implied means of commission cannot render a statute
divisible because, unlike with an explicitly divisible statute,
they do not allow the sentencing court to home in on the
defendant’s actual crime of conviction; “[a]s long as the
statute itself requires only an indeterminate [element],” like
non-consent, “that is all the indictment must (or is likely to)
allege and all the jury instructions must (or are likely to)
mention.” Id. To use this case’s example, to convict a
defendant under § 163.425, the state need prove only that a
defendant has engaged in intercourse with another and that
the other “does not consent thereto.” In the general run of
cases, then, a sentencing court cannot tell whether the jury or
judge convicted a defendant of intercourse with a victim who
did not actually consent or a victim who lacked capacity to
consent. The partial dissent’s approach thus creates just the
problem that Descamps identified and that motivated the
Court specifically to reject it. We also note that our
dissenting colleague’s approach would render every criminal
statute divisible in which a separate provision of the criminal
code specified one or more means of commission. We would
hesitate before adopting a rule with such sweeping

15
Aguila-Montes de Oca was abrogated by Descamps, as recognized in
United States v. Flores-Cordero, 723 F.3d 1085, 1089 (9th Cir. 2013).
26 UNITED STATES V. CABRERA-GUTIERREZ

implications, even if Descamps did not already squarely
foreclose it.16

In short, Cabrera’s statute of conviction, Or. Rev. Stat.
§ 163.425, is not divisible. The statute states “a single,
indivisible set of elements,” and the modified categorical
approach does not apply. Descamps, 133 S. Ct. at 2282; see
also Acosta-Chavez, 727 F.3d at 909 (holding that where the
state statute’s age element is broader than the federal
definition and “is not divisible . . . we may not apply the
modified categorical approach”).

IV.

Cabrera, having been convicted in Oregon of the crime of
second degree sexual abuse and having been ordered to
register as a sex offender, chose to travel interstate and failed
to register under SORNA. We conclude, as have our sister
circuits, that Congress has the authority under the Commerce
Clause to enact SORNA and to require Cabrera to register
under SORNA as a sex offender.

16
The partial dissent’s divisibility argument loses sight of the fact that,
under Descamps, what must be divisible are the elements of the crime, not
the mode or means of proving an element. See Descamps, 133 S. Ct. at
2293 (noting that we “may use the modified approach only to determine
which alternative element in a divisible statute formed the basis of the
defendant’s conviction”); id. at 2283 (“The key, we emphasized, is
elements, not facts.”). All of the partial dissent’s arguments focus on one
of the means of proving the element of “does not consent.” See Partial
Dissent at 36 n.4 (Ҥ 163.315 sets forth divisible definitions of legal
incapacity”); id. at 38 (§ 163.315 is a “divisible state statute [] as that term
is defined . . . in Descamps”). Moreover, Cabrera’s crime of conviction
was under § 163.425 – not § 163.315 – and the partial dissent does not
respond to our discussion that a violation of § 163.425 can be proved
without resort to § 163.315. See Maj. Op., supra, at 21–24.
 UNITED STATES V. CABRERA-GUTIERREZ 27

The district court erred, however, in applying the
modified categorical approach to determine that Cabrera
qualified as a Tier III sex offender. Cabrera’s prior
conviction under Or. Rev. Stat. § 163.425 is categorically
overbroad and cannot serve as a sentencing predicate under
42 U.S.C. § 16911(4). The government has made an
inadequate showing of harmlessness.17 See Acosta-Chavez,
727 F.3d at 909 (recognizing that the government bears the
burden of establishing harmlessness). Therefore, we vacate
Cabrera’s sentence and remand to the district court pursuant
to 18 U.S.C. § 3742(f)(1) for resentencing proceedings
consistent with this opinion.

CONVICTION AFFIRMED, SENTENCE VACATED
and REMANDED FOR RESENTENCING.

CALLAHAN, Circuit Judge, concurring and dissenting:

I agree with my brethren that Congress had the authority
to enact the Sex Offender Registration and Notification Act
(“SORNA”) and that SORNA’s application to Pedro Cabrera-
Gutierrez (“Cabrera”) is constitutional. We part company,
however, in our reading of the Supreme Court’s opinion in
Descamps v. United States, 133 S. Ct. 2276 (2013), and its

17
The government states conclusorily that even if Cabrera were
classified as a Tier I offender, his actual sentence (17 months) would fall
within the adjusted Guideline range, properly construed (15–21 months,
instead of 27–33 months as a Tier III offender). This argument ignores
that the district court gave Cabrera a 16-month downward variance for
time served. Assuming the district court would have applied the same or
a similar variance, Cabrera’s sentence would have fallen well below the
17 months to which the court sentenced him.
28 UNITED STATES V. CABRERA-GUTIERREZ

application to Cabrera’s state conviction. Because I read the
relevant Oregon statutes to be “divisible” as that term is
defined by the Supreme Court in Descamps, I would affirm
Cabrera’s conviction and his sentence as a Tier III sex
offender.

I

The federal statute that concerns Cabrera’s situation is
42 U.S.C. § 16911(4) which defines a “tier III sex offender”
as “a sex offender whose offense is punishable by
imprisonment for more than 1 year and . . . is comparable to
or more severe than . . . aggravated sexual abuse or sexual
abuse (as described in sections 2241 and 2242 of Title 18).”1

1
42 U.S.C. § 16911(4) defines a Tier III offender as follows:

The term “tier III sex offender” means a sex offender
whose offense is punishable by imprisonment for more
than 1 year and–

(A) is comparable to or more severe than the following
offenses, or an attempt or conspiracy to commit such an
offense:

(i) aggravated sexual abuse or sexual abuse (as
described in sections 2241 and 2242 of Title 18);
or

(ii) abusive sexual contact (as described in section
2244 of Title 18) against a minor who has not
attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed
by a parent or guardian); or
 UNITED STATES V. CABRERA-GUTIERREZ 29

Section 2242 defines the crime of sexual abuse to include
knowingly engaging “in a sexual act with another person if
that other person is – (A) incapable of appraising the nature
of the conduct; or (B) physically incapable of declining
participation in, or communicating unwillingness to engage
in, that sexual act.”2

(C) occurs after the offender becomes a tier II sex
offender.
2
18 U.S.C. § 2242 reads:

Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
or in any prison, institution, or facility in which persons
are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal
department or agency, knowingly–

(1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other
than by threatening or placing that other person in fear
that any person will be subjected to death, serious
bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that
other person is–

(A) incapable of appraising the nature of the
conduct; or

(B) physically incapable of declining participation
in, or communicating unwillingness to engage in,
that sexual act;

or attempts to do so, shall be fined under this title and
imprisoned for any term of years or for life.
30 UNITED STATES V. CABRERA-GUTIERREZ

Two Oregon statutes govern Cabrera’s prior conviction.
He was convicted under Or. Rev. Stat. § 163.425 (1998),
which states: “(1) A person commits the crime of sexual
abuse in the second degree when that person subjects another
person to sexual intercourse, deviate sexual intercourse . . .
and the victim does not consent thereto.” Or. Rev. Stat.
§ 163.425 (1998). In addition, Or. Rev. Stat. § 163.315
provides that “does not consent thereto” includes instances
where “(1) A person is considered incapable of consenting to
a sexual act if the person is: (a) Under 18 years of age;
(b) Mentally defective; (c) Mentally incapacitated; or
(d) Physically helpless.” See State v. Ofodrinwa, 300 P.3d
154 (Or. 2013) (en banc).

A careful reading of Ofodrinwa and the Oregon statutes
reveals that the Oregon scheme is divisible and that Cabrera
pled guilty to sexual assault as that term is defined in
18 U.S.C. § 2242.

II

Our task, as refined by the Supreme Court’s opinion in
Descamps, is to determine whether Cabrera’s state conviction
is a crime of sexual abuse as that term is defined in 18 U.S.C.
§ 2242. Following Taylor v. United States, 495 U.S. 575
(1990), we first determine whether the state statute has the
same elements as the generic federal crime or defines the
crime more narrowly. Descamps, 133 S. Ct. at 2283. The
Supreme Court held: “But if the statute sweeps more broadly
than the generic crime, a conviction under that law cannot
count as a[] . . . predicate [for the enhancement], even if the
defendant actually committed the offense in its generic form.
The key, we emphasized, is elements, not facts.” Id.
 UNITED STATES V. CABRERA-GUTIERREZ 31

Here, the Oregon statutory statute is broader than the
federal crime of sexual abuse. The federal statute requires
that the victim be incapable of appraising the nature of the
conduct, of declining to participate, or communicating
unwillingness. See 18 U.S.C. § 2242. But Or. Rev. Stat.
§ 163.315 requires only that the victim “does not consent.”
In addition, the Or. Rev. Stat. § 163.315 provides that anyone
under 18 years of age is considered incapable of consenting
to a sexual act. However, we have held that under federal law
a minor is someone under the age of 16. See United States v.
Acosta-Chavez, 727 F.3d 903, 908–09 (9th Cir. 2013).
Because Or. Rev. Stat. §§ 163.315 and 163.425 are broader
than the definition of sexual abuse in 18 U.S.C. § 2242, we
turn to the modified categorical approach.

In Descamps, the Supreme Court clarified that under the
modified categorical approach, the focus is not on what the
defendant did, but on “which statutory phrase was the basis
for the conviction.” Descamps, 133 S. Ct. at 2285 (quoting
Johnson v. United States, 559 U.S. 133, 144 (2010)). The
Court explained:

Applied in that way—which is the only way
we have ever allowed—the modified
approach merely helps implement the
categorical approach when a defendant was
convicted of violating a divisible statute. The
modified approach thus acts not as an
exception, but instead as a tool. It retains the
categorical approach’s central feature: a focus
on the elements, rather than the facts, of a
crime. And it preserves the categorical
approach’s basic method: comparing those
elements with the generic offense’s. All the
32 UNITED STATES V. CABRERA-GUTIERREZ

modified approach adds is a mechanism for
making that comparison when a statute lists
multiple, alternative elements, and so
effectively creates “several different . . .
crimes.” Nijhawan [v. Holder], 557 U.S. [29],
at 41 [(2009)]. If at least one, but not all of
those crimes matches the generic version, a
court needs a way to find out which the
defendant was convicted of. That is the job,
as we have always understood it, of the
modified approach: to identify, from among
several alternatives, the crime of conviction so
that the court can compare it to the generic
offense.

Id. (parallel citation omitted).

The Court’s definition of divisible is shaped by its
response to Justice Alito’s dissent. Justice Alito wrote:

My understanding is that a statute is divisible,
in the sense used by the Court, only if the
offense in question includes as separate
elements all of the elements of the generic
offense. By an element, I understand the
Court to mean something on which a jury
must agree by the vote required to convict
under the law of the applicable jurisdiction.

Id. at 2296. He then goes on to observe that the Court’s
decisions in Shepard v. United States, 544 U.S. 13 (2005),
Johnson, 559 U.S. 133, and Taylor, 495 U.S. 575, suggest a
generous definition of divisible. He commented:
 UNITED STATES V. CABRERA-GUTIERREZ 33

Shepard concerned prior convictions under
two Massachusetts burglary statutes that
applied not only to the entry of a “building”
(as is the case with generic burglary) but also
to the entry of a “ship, vessel, or vehicle.”
Mass. Gen. Laws Ann., ch. 266, § 16 (West
2000). See also § 18; 544 U.S. at 17, 125 S.
Ct. 1254. And the Shepard Court did not
think that this feature of the Massachusetts
statutes precluded the application of the
modified categorical approach. See id., at
25–26, 125 S. Ct. 1254; ante, at 2283 – 2284.
See also Nijhawan, 557 U.S. at 35, 129 S. Ct.
2294 (discussing Shepard).

In today’s decision, the Court assumes that
“building” and the other locations enumerated
in the Massachusetts statutes, such as
“vessel,” were alternative elements, but that is
questionable. It is quite likely that the entry
of a building and the entry of a vessel were
simply alternative means of satisfying an
element.

Id. at 2297. Justice Alito continued:

Johnson, like Shepard, involved a statute that
may have set out alternative means, rather
than alternative elements. Under the Florida
statute involved in that case, a battery occurs
when a person either “1. [a]ctually and
intentionally touches or strikes another person
against the will of the other; or 2.
[i]ntentionally causes bodily harm to another
34 UNITED STATES V. CABRERA-GUTIERREZ

person.” Fla. Stat. § 784.03(1)(a) (2010). It
is a distinct possibility (one not foreclosed by
any Florida decision of which I am aware)
that a conviction under this provision does not
require juror agreement as to whether a
defendant firmly touched or lightly struck the
victim. Nevertheless, in Johnson, we had no
difficulty concluding that the modified
categorical approach could be applied.

Id. at 2298.3

The Court responded to Justice Alito’s concerns in its
footnote 2.

But if, as the dissent claims, the state laws at
issue in those cases set out “merely alternative
means, not alternative elements” of an
offense, post, at 2298, that is news to us. And
more important, it would have been news to
the Taylor, Shepard, and Johnson Courts: All
those decisions rested on the explicit premise
that the laws “contain[ed] statutory phrases
that cover several different . . . crimes,” not

3
Justice Alito further noted that Taylor “may also have involved a
statute that was not divisible, but the situation is less clear.” Id. at 2298
n.2. The Missouri burglary provisions “applied not only to buildings but
also to ‘any booth or tent,’ ‘any boat or vessel,’ or a ‘railroad car.’” Id.
Justice Alito notes that “[i]t is not entirely clear whether a Missouri court
would have required jurors to agree on a particular choice from this list.”
Id.
 UNITED STATES V. CABRERA-GUTIERREZ 35

several different methods of committing one
offense. Johnson, 559 U.S. at 144 (citing
Nijhawan, 557 U.S. at 41).

Id. at 2298 n.2 (parallel citations omitted).

Thus, in determining whether a state statute is divisible,
we may take as our mark the Supreme Court’s indication that
the statutes in Shepard, which defined burglary to include
entry of a building or a ship, and in Johnson, which defined
battery as either a touching of a person against his will or
intentionally causing bodily harm, were divisible.

III

Applying Descamps to Cabrera’s case, we learn that
although Or. Rev. Stat. § 163.425 is broader than 18 U.S.C.
§ 2242, the Oregon Supreme Court has interpreted § 163.425
as covering convictions based either on the victim’s lack of
consent or on the victim’s incapacity to consent.

In Ofodrinwa, 300 P.3d 154, the Oregon Supreme Court
ruled that “does not consent” as used in § 163.425 covers
both lack of capacity to consent and lack of actual consent.
Id. at 166. In Ofodrinwa, the defendant argued that “does not
consent” in § 163.425 referred only to instances in which the
victim does not actually consent. He asserted that there was
no evidence that his victim had not consented, and that the
victim’s lack of capacity to consent was not sufficient to
prove a violation of the statute. Id. at 155. The Oregon
Supreme Court rejected that interpretation holding that the
state could prove sexual abuse under § 163.425 either by
showing the victim’s lack of actual consent or by showing
36 UNITED STATES V. CABRERA-GUTIERREZ

that the victim lacked the capacity to consent pursuant to Or.
Rev. Stat. § 163.315. Id. at 167.

Thus, the Oregon statutory scheme is divisible as that
term is defined in Descamps.4 Section 163.425 covers the
offense of sexual intercourse where the victim, although
capable of consenting, does not consent, as well as the

4
This conclusion is consistent with our opinion in United States v.
Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007). In Beltran, the issue
was whether a conviction under § 163.425 qualifies as a crime of violence
under United States Sentencing Guideline § 2L1.2. Id. at 1043. In
determining that the conviction did not qualify as a crime of violence, we
noted that Oregon Rev. Stat. § 165.315 “delineates four types of legal
incapacity that apply to all sexual offenses listed in the Oregon criminal
code, including second-degree sexual abuse.” Id. at 1045. We wrote:

Given the applicability of ORS section 163.315 to ORS
section 163.425, a perpetrator could commit second-
degree sexual abuse by surreptitiously adding to his
victim’s drink a drug that affects one’s judgment,
thereby rendering her “mentally incapacitated.” She
would then be legally incapable of consent even if she
participated fully in the sex act. Similarly, the victim
could be “mentally defective,” yet fully physically
cooperative. Under both those circumstances, a
perpetrator would not necessarily have to use, attempt
to use, or threaten to use any force above and beyond
the force inherent in the act of penetration, see infra p.
1047, to commit second-degree sexual abuse. In other
words, under such circumstances, a perpetrator would
not have categorically committed a “crime of violence,”
as the term is defined for purposes of
§ 2L1.2(b)(1)(A)(ii).

489 F.3d at 1046. Of course, Beltran concerned a different feature of the
Oregon statute than the question raised by Cabrera, but our opinion
recognized both the relationship between § 163.425 and § 163.315 and
that § 163.315 sets forth divisible definitions of legal incapacity.
 UNITED STATES V. CABRERA-GUTIERREZ 37

offense of sexual intercourse where the victim is incapable of
consenting. Furthermore, Or. Rev. Stat. § 163.315 provides
for distinct definitions of incapable. The victim may be
shown to be incapable because she is under the age of 18,
mentally defective, mentally incapacitated, or physically
helpless. Although under 18 years of age would not qualify
for incapacity under 18 U.S.C. § 2242, the other grounds of
incapacity are covered by § 2242.

In Shepard, 544 U.S. at 26, the Supreme Court held that
in determining whether a plea of guilty to a nongeneric statute
necessarily admitted elements of the generic offense, a
court’s review “is limited to the terms of the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” See also
Young v. Holder, 697 F.3d 976, 983 (9th Cir. 2012) (en banc)
(“we may review only the charging instrument, transcript of
the plea colloquy, plea agreement, and comparable judicial
record of this information”).

Here, the district court had Cabrera’s handwritten
“Petition to Enter Plea of Guilty” to sexual abuse in the
second degree. The petition states:

I on May 2, 1998 did knowingly have sexual
intercourse with [redacted] and she was
unable to legally consent to having sexual
intercourse with me because she was under
the influence of alcohol at the time of the
sexual intercourse. Further [redacted] was 15
years old on May 2, 1998.
38 UNITED STATES V. CABRERA-GUTIERREZ

Thus, Cabrera freely admitted to violating Or. Rev. Stat.
§ 163.425 by having sexual intercourse with a victim who
was mentally incapacitated as the term is defined in Or. Rev.
Stat. § 163.315(1) (c).5

It is true that Cabrera also stated that his victim was a
minor, and perhaps a conviction based solely on his violation
of Or. Rev. Stat. § 163.315(1)(a) (lack of consent because
victim was under 18 years of age), would not fit within the
generic definition of sexual assault. However, Cabrera chose
to first admit to his victim’s actual incapacity to consent, a
violation of a divisible portion of the state statutes that fall
well within the federal definition of sexual abuse.6

Because: (1) Or. Rev. Stat. §§ 163.425 and 163.315 are
divisible state statutes as that term is defined by the Supreme
Court in Descamps; (2) Cabrera’s guilty plea unquestionably
shows that he pled guilty to sexual intercourse with a person
who was mentally incapacitated, as that term is defined in Or.
Rev. Stat. 163.315(1)(c); and (3) sexual intercourse with a
person who was mentally incapacitated falls well within the
generic definition of the crime of sexual abuse set forth in

5
Intoxication can be the cause of a victim’s incapacity to consent. See
United States v. Smith, 606 F.3d 1270, 1281–82 (10th Cir. 2010) (noting
that victim was heavily intoxicated before the assault); United States v.
Carter, 410 F.3d 1017, 1027 (8th Cir. 2005) (holding that evidence the
victim smoked marijuana and drank alcohol, and felt drowsy and really
tired, was sufficient to conclude that the victim was unable to appraise the
nature of the perpetrator’s conduct).
6
Our opinion in Young, 697 F.3d 976, is not to the contrary. There we
were concerned with a plea that implied a conviction for “A” or “B.” Id.
at 986–87. Here, Cabrera pled guilty to “A” and “B.”
 UNITED STATES V. CABRERA-GUTIERREZ 39

18 U.S.C. § 2242, I would hold that the district court properly
sentenced Cabrera as a Tier III sex offender.