FILED
UNITED STATES COURT OF APPEALS SEP 16 2014
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10483
Plaintiff - Appellee, D.C. No. 4:11-cr-01229-DCB-
JCG-1
v. District of Arizona,
Tucson
DANILO BANOS-MEJIA,
Defendant - Appellant. ORDER
Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.
Danilo Banos-Mejia’s motion to recall the mandate is granted in light of our
recent decision in U.S. v. Gomez, —F.3d—, 2014 WL 1623725 (9th Cir. Apr. 24,
2014), which held that the generic definition of “statutory rape” includes a
four-year age differential as an element of the offense. Id. at *17.
The memorandum disposition filed on August 28, 2013 is withdrawn and a
memorandum disposition is filed concurrently with this order. Banos’s motion for
leave to file an untimely petition for rehearing en banc is denied as moot.
FILED
NOT FOR PUBLICATION SEP 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10483
Plaintiff - Appellee, D.C. No. 4:11-cr-01229-DCB-
JCG-1
v.
DANILO BANOS-MEJIA, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 15, 2013
San Francisco, California
Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.
Danilo Banos-Mejia appeals his conviction and sentence following a guilty
plea to one count of illegal reentry following deportation, in violation of 8 U.S.C.
§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part,
vacate in part, and remand the case for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Banos contends that the district court abused its discretion by denying
his request to withdraw his guilty plea. A defendant may withdraw a guilty plea
prior to sentencing if he “can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant cannot withdraw his
plea because he realizes that his sentence will be higher than he had expected.”
United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003); see also Shah v.
United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“Nor do we believe that fear of
receiving a harsh sentence, standing alone, constitutes a ‘fair and just’ reason to
withdraw a plea, even if counsel’s initial advice as to length of plea turned out to
be inaccurate.”). Here, Banos requested to withdraw his guilty plea only after
realizing that the district court would enhance his sentence based on a prior
conviction. The record does not reveal any other basis for his request. Therefore,
we affirm the district court’s denial of Banos’s request to withdraw his guilty plea.
2. Banos signed a plea agreement containing a waiver of his right to appeal,
upon which the government now relies. We find that the waiver provision is
unclear as to whether Banos could appeal the district court’s determination of
whether his prior conviction qualifies as a “crime of violence.” Specifically,
pursuant to the plea agreement, Banos waived his right to appeal the “imposition of
sentence upon [him] providing the sentence is consistent with this agreement.”
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(emphasis added). However, the agreement fails to explain what is meant by this
provision.1 “Because a plea agreement is, at bottom, a contract between the
government and a criminal defendant,” we construe any ambiguity in its language
against the drafter of the agreement—here, the government. United States v.
Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006). Accordingly, we conclude
that Banos did not knowingly and intelligently waive his right to appeal the district
court’s finding that his prior conviction qualifies as a “crime of violence.”
3. Banos challenges the district court’s imposition of a 16-level
enhancement based on his 2008 conviction under New York Penal Law
§ 130.30(1). The district court applied the enhancement after concluding that
Banos’s prior conviction qualified as a “crime of violence” because it constituted
“statutory rape,” as that term was “generically defined” in United States v.
1
Indeed, another panel of this court found an identical appeal waiver
provision to be ambiguous. See United States v. Aguilar-Balbuena, 475 Fed.
Appx. 222, 223 (9th Cir. 2012).
3
Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007), and United States v.
Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).2
On appeal, Banos argues that his sentence must be reversed because under
Estrada-Espinoza v. Mukasey, 546 F.3d 1147(9th Cir. 2008)(en banc), the generic
definition of statutory rape includes a mens rea element, whereas § 130.30(1) does
not. Therefore, Banos’s argument goes, § 130.30(1) does not meet the generic
definition of “statutory rape” under Taylor’s categorical approach. Taylor v.
United States, 495 U.S. 575 (1990). Banos misreads Estrada-Espinoza. As we
explained in United States v. Zamorano-Ponce, “[n]othing in Estrada-Espinoza
purports to require that ‘statutory rape,’ within the meaning of the commentary to
the Guidelines, contain a mens rea element.” 699 F.3d 1117, 1120 (9th Cir. 2012).
Nevertheless, we reverse and remand for resentencing. Under
Gomez-Mendez and Rodriguez-Guzman, “the generic federal definition of
‘statutory rape’ is unlawful sexual intercourse with a person under the age of 16.”
Zamorano-Ponce, 699 F.3d at 1119. Recently, in U.S. v. Gomez, —F.3d—, 2014
U.S. App. LEXIS 7810, at *65, 2014 WL 1623725, at *17 (9th Cir. Apr. 24, 2014),
2
The United States Sentencing Guidelines (“Guidelines”) define a “crime of
violence” to include (1) “forcible sex offenses (including 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)”; (2) “statutory rape”; and (3) “sexual abuse
of a minor.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2011).
4
we held that the generic federal definition of “statutory rape” also includes a
four-year-age-difference element.
The statute under which Banos was convicted, New York Penal Law §
130.30(1), provides that a person is guilty of second-degree rape when “being
eighteen years old or more, he or she engages in sexual intercourse with another
person less than fifteen years old.” Thus, a defendant could be convicted under §
130.30(1) even if there is less than four years age difference between the defendant
and the victim. Because § 130.30(1) sweeps more broadly than the generic federal
offense, a conviction under § 130.30(1) does not qualify as “statutory rape” under
the generic federal definition of that crime. See Descamps v. United States, 133 S.
Ct. 2276, 2292 (2013) (“Because of the mismatch in elements, a person convicted
under that statute is never convicted of the generic crime.”). Further, because
§ 130.30(1) contains a “single, ‘indivisible’ set of elements,” the modified
categorical approach is not applicable. Descamps, 133 S. Ct. at 2283.
Accordingly, we vacate Banos’ sentence and remand for resentencing.
We need not and do not reach the remaining issues raised on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
5