FILED
NOT FOR PUBLICATION SEP 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50270
Plaintiff - Appellee, D.C. No. 3:12-cr-04867-CAB-1
v.
SUPPLEMENTAL
SILVIO ANTONIO CONTRERAS- MEMORANDUM*
MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted June 6, 2014**
Pasadena, California
Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
Over Contreras-Martinez’s objection, the district court enhanced by sixteen
levels his sentence for attempted reentry after removal. The district court applied
the enhancement because it concluded that Contreras-Martinez’s prior conviction
under Oregon’s third degree rape statute, Or. Rev. Stat. § 163.355, was a
categorical match for the generic federal definition of statutory rape and, therefore,
a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A).
While this appeal was pending, we clarified that the generic federal
definition of “statutory rape” includes as an element a four-year age difference
between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th
Cir. 2013), as amended United States v. Gomez, -- F.3d --, 2014 WL 1623725 (9th
Cir. Apr. 24, 2014). Because Oregon’s statutory rape law does not include this
element, it is broader than the federal definition.
The government has not shown that the use of the 16-level enhancement was
harmless error. Although the district court gave Contreras-Martinez a sentence
well below the sentencing guideline calculated using the 16-level enhancement,
and Contreras-Martinez has been released from custody and deported, the
government has not shown that on remand the district court could not modify the
period of supervised release or otherwise modify Contreras-Martinez’s sentence.
2
In its petition for rehearing, the government correctly points out that
because Contreras-Martinez has been released from custody and removed to
Mexico, he may not be resentenced in absentia under this Court’s precedent. See
United States v. Aguilar-Reyes, 723 F.3d 1014, 1017 (9th Cir. 2013). Therefore,
we affirm Contreras-Martinez’s sentence without prejudice with instructions that
upon his return to the United States or waiver of his right to be physically present
at resentencing, his previous sentence shall be vacated and that he shall be
resentenced in light of this decision. See id. at 1018.
Affirmed (with instructions).
3