FILED
NOT FOR PUBLICATION MAY 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10321
Plaintiff - Appellee, D.C. No. 4:12-cr-01941-JGZ-
LAB-1
v.
FERMIN TOVAR-JIMENEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted May 14, 2014
San Francisco, California
Before: McKEOWN and M. SMITH, Circuit Judges, and ROBART, District
Judge.**
On appeal, Fermin Tovar-Jimenez challenges the 41-month sentence
imposed by the district court following his guilty plea to illegal reentry after
deportation in violation of 8 U.S.C. § 1326. Because the parties are familiar with
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James L. Robart, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
the facts and procedural history of this case, we repeat only those facts necessary to
resolve the issues raised on appeal. We vacate and remand for resentencing.
The district court erred in applying a 16-level sentencing enhancement after
concluding that Tovar-Jimenez’s prior conviction for rape of a child in the third
degree in violation of Revised Code of Washington § 9A.44.079 qualified as
statutory rape, and was thus a crime of violence under U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(ii).
Section 9A.44.079 includes as an element that the defendant had “sexual
intercourse” with the victim. Wash. Rev. Code § 9A.44.079. Sexual intercourse is
defined disjunctively in three ways under Washington law. Wash. Rev. Code §
9A.44.010(1). Only two of the three alternatives require penetration, whereas one
requires only “sexual contact . . . involving the sex organs of one person and the
mouth or anus of another . . . .” Id. The generic definition of sexual intercourse,
however, does not encompass oral sexual contact. See United States v. Gomez, —
F.3d —, No. 11-30262, 2014 WL 1623725, at *17 n.33 (9th Cir. Apr. 24, 2014).
Therefore, § 9A.44.079 sweeps more broadly than the generic crime of statutory
2
rape.1 The district court applied the 16-level sentencing enhancement without
considering whether Tovar-Jimenez was convicted of the elements of generic
statutory rape, including the generic definition of sexual intercourse. Therefore,
we vacate the sentence and remand to the district court to reapply the framework
from Taylor v. United States, 495 U.S. 575 (1990), to determine whether Tovar-
Jimenez was convicted of the elements of generic statutory rape. See also
Descamps v. United States, 133 S. Ct. 2276 (2013).
Additionally, the government concedes that Tovar-Jimenez’s judgment of
conviction should be amended to reflect a sentencing enhancement pursuant to 8
U.S.C. § 1326(b)(1), rather than § 1326(b)(2), because Tovar-Jimenez did not
admit to having a prior conviction that qualified as an aggravated felony.
Finally, because we remand for resentencing, we need not address the
remainder of Tovar-Jimenez’s arguments.
VACATED AND REMANDED.
1
Although we held in United States v. Zamorano-Ponce, 699 F.3d 1117 (9th
Cir. 2012), that a conviction under § 9A.44.079 qualifies categorically as generic
statutory rape, we did not consider whether sexual intercourse as defined in §
9A.44.010(1) was a categorical match for the generic definition of sexual
intercourse.
3