FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-10000
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-00953-
DCB-HCE-1
OSCAR GALLEGOS-GALINDO , AKA
Oscar A. Gallegos-Galindo, AKA
Oscar Alsonso Gallegos-Galindo, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Ronald S.W. Lew,* Senior District Judge, Presiding
Argued and Submitted
November 5, 2012—San Francisco, California
Filed January 17, 2013
*
The Honorable Ronald S.W . Lew, United States District Judge for the
Central District of California, sitting by designation.
2 UNITED STATES V . GALLEGOS-GALINDO
Before: Robert D. Sack,** Ronald M Gould,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Sack
SUMMARY***
Criminal Law
The panel affirmed a sentence for illegal reentry in a case
in which the district court concluded that the defendant’s
2008 conviction for third-degree rape under Revised Code of
Washington § 9A.44.060(1)(a) qualified as a “forcible sex
offense” supporting a 16-level crime-of-violence
enhancement under U.S.S.G. § 2L1.2(a)(1)(A).
Applying the modified categorical approach, the panel
held that because the Guidelines were amended in 2008 to
include as a forcible sex offense any sex offense involving the
absence of the victim’s consent, and because the defendant
stated in his signed 2008 guilty plea that the victim did not
consent, the district court did not err – plainly or otherwise –
in concluding that the prior conviction was a crime of
violence.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the United
States Court of Appeals for the Second Circuit, sitting by designation.
***
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 . GALLEGOS-GALINDO 3
COUNSEL
Dan W. Montgomery (argued), Tucson, Arizona, for
Defendant-Appellant.
Erica L. Seger (argued), Tucson, Arizona, for Plaintiff-
Appellee.
OPINION
SACK, Circuit Judge:
The question before us on this appeal is whether the
district court, when sentencing the defendant-appellant Oscar
Gallegos-Galindo, properly included a crime of violence
enhancement based on the court’s conclusion that the
defendant’s prior Washington State third-degree rape
conviction qualified as a forcible sex offense under the
United States Sentencing Guidelines (“the Guidelines”). See
U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii).
Because the Guidelines were amended in 2008 to include as
a forcible sex offense any sex offense involving the absence
of the victim’s consent, we conclude that the district court did
not err in entering the crime of violence enhancement in these
circumstances and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2011, U.S. Border Patrol agents
observed a group of persons walking in the Arizona desert.
Suspecting that they had illegally entered the country, the
agents arrested the members of the group, including the
defendant-appellant Oscar Gallegos-Galindo.
4 UNITED STATES V . GALLEGOS-GALINDO
On March 16, 2011, a Tucson grand jury returned an
indictment charging Gallegos-Galindo with reentry as a
removed alien in violation of 8 U.S.C. § 1326, enhanced by
8 U.S.C. § 1326(b)(2). On July 15, 2011, he pled guilty to the
charges in the indictment without a plea agreement.
In preparing Gallegos-Galindo’s pre-sentence report, the
probation department considered his prior convictions. The
department concluded that his 2008 Washington conviction
for rape in the third degree was a “forcible sex offense” that
qualified as a “crime of violence” under the Guidelines,
U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, Gallegos-Galindo’s
recommended offense level was increased by 16 levels to 24.
The probation department then recommended a deduction of
two points for acceptance of responsibility, resulting in an
offense level of 22. Based on that offense level and his
criminal history category of II, Gallegos-Galindo’s
Guidelines range was calculated to be 46–57 months’
imprisonment.****
In 2008, Gallegos-Galindo was convicted in Washington
of Rape in the Third Degree, a felony, in violation of Revised
Code of Washington § 9A.44.060(1)(a). According to an
affidavit in support of the Motion for Warrant in that case, the
juvenile victim reported that she had been sexually assaulted
after, at Gallegos-Galindo’s demand, she entered his car from
the road along which she had been walking. She said that
****
The pre-sentence report also included information regarding
Gallegos-Galindo’s 2002 federal illegal entry conviction, for which he was
sentenced to 30 days’ incarceration. T he report indicated that he had
pending against him charges for driving under the influence in 2007 and
had been arrested for the possession of a controlled narcotic substance in
2002, driving under the influence in 2002, and theft in 2004.
UNITED STATES V . GALLEGOS-GALINDO 5
after stopping for coffee, Gallegos-Galindo drove her to a
secluded dirt road. He then assaulted her by “kissing her
mouth, biting her lips leaving a visible injury, sucking on
[her] breasts, and penetrating her ‘butt’ with his penis . . . .”
The victim “both told him ‘no’ and to stop, and tried to push
him away but was unable to do so.” The victim later used the
cell phone of a passing motorist to contact police.
Gallegos-Galindo pled guilty to Rape in the Third Degree.
In his February 28, 2008 statement accompanying his plea of
guilty to the offense (the “Statement”), he said: “On January
23, 2007, in Skagit County, Washington, I engaged in sexual
intercourse with K.A.T., to whom I wasn’t married and
K.A.T. did not consent to the sexual intercourse and clearly
expressed that with her words and conduct.” The state court
found that there was a factual basis for Gallegos-Galindo’s
plea and convicted him under Revised Code of Washington
§ 9A.44.060(1)(a). On May 8, 2008, he was sentenced to
twelve months in prison. After serving the sentence,
Gallegos-Galindo was ordered removed from the United
States by the Department of Justice, and was removed.
At his federal sentencing for the 2011 reentry now before
us, the effect of the 2008 third-degree rape conviction was
discussed. Defense counsel conceded that Gallegos-Galindo
was “categorically level 24,” implicitly acknowledging that
the 16-level “crime of violence” enhancement under
§ 2L1.2(b)(1)(A) of the Guidelines was correctly applied.
But counsel argued that factors under 18 U.S.C. § 3553(a),
including deterrence and family history, ought to be
considered. Counsel requested a sentence below the
applicable Guidelines range. The government argued for a
sentence at the high end of the range, in part because of the
6 UNITED STATES V . GALLEGOS-GALINDO
seriousness of the circumstances surrounding the third-degree
rape conviction.
Following argument, the district court declined Gallegos-
Galindo’s request for a downward departure and sentenced
him to 52 months’ imprisonment, in the middle of the
Guidelines range. The court acknowledged that Gallegos-
Galindo’s criminal history category was II, but noted his
many criminal convictions and other contacts with law
enforcement officers over the previous decade. In arriving at
its sentence, the court stated that it had considered the factors
it was required to consider under 18 U.S.C. § 3553(a), the
entire record, including judicially noticeable documents, the
defendant’s sentencing memorandum, and the pre-sentence
report.
JURISDICTION AND STANDARD OF REVIEW
Ordinarily, this Court reviews de novo a district court’s
determination that a defendant’s prior conviction qualifies as
a “crime of violence” for a 16-level enhancement pursuant to
Guidelines § 2L1.2(b)(1)(A). United States v. Grajeda,
581 F.3d 1186, 1188 (9th Cir. 2009), cert. denied, 131 S. Ct.
583 (2010); United States v. Esparza-Herrera, 557 F.3d
1019, 1021–22 (9th Cir. 2009) (per curiam). Where a
defendant fails to raise an issue before the district court,
however, we review for plain error, so long as it has been
forfeited rather than deliberately waived, in which case we
will decline to review it at all. See United States v. Ross,
511 F.3d 1233, 1235 (9th Cir. 2008); United States v. Perez,
116 F.3d 840, 845 (9th Cir. 1997) (en banc).
Here, defense counsel agreed with the district court that
Gallegos-Galindo was “categorically level 24,” essentially
UNITED STATES V . GALLEGOS-GALINDO 7
admitting to the 16-level enhancement. There is no reason to
think that the defendant considered objecting but did not do
so for tactical reasons. The defendant thus did not
deliberately waive the objection. He may therefore raise the
issue on appeal, albeit subject to plain error review. See
United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.
2001).
Plain error is “(1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Cotton, 535 U.S.
625, 631 (2002) (citation and quotation marks omitted). If
these three conditions are met, we may exercise our discretion
to notice a forfeited error that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(citation omitted).
DISCUSSION
The principal issue on appeal is thus whether the district
court plainly erred in imposing upon Gallegos-Galindo in
2011 a crime of violence enhancement pursuant to Guidelines
§ 2L1.2(b)(1)(A) for his 2008 Washington State third-degree
rape conviction. The district court arrived at its conclusion
that the enhancement was justified by reference to the
Guidelines, as amended in 2008. Before then, Application
Note 1(B)(iii) to Guidelines § 2L1.2 had characterized a
“crime of violence” as including three types of sexual
offenses: forcible sex offenses, statutory rape, and sexual
abuse of a minor. We had interpreted “forcible sex offenses”
in cases such as this one as requiring the use of some physical
force above and beyond that required for penetration. See
United States v. Bolanos-Hernandez, 492 F.3d 1140, 1144
(9th Cir. 2007).
8 UNITED STATES V . GALLEGOS-GALINDO
In 2008, however, the Sentencing Commission
promulgated Amendment 722 (the “2008 Amendment”),
which modified the definition of Application Note 1(B)(iii)
to include within the definition of “forcible sex offenses”
those offenses “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.” U.S. Sentencing
Guidelines Manual § 2L1.2, cmt. n.1(B)(iii). Thus, under the
2008 Amendment, indicia of additional force or violence
were no longer required for the enhancement so long as
consent to the sex offense was shown to be lacking.
Despite these changes, there lingered some uncertainty as
to whether force above and beyond that required for
penetration was still necessary for a sex offense to be
forcible. Indeed, that is the argument that the defendant
makes here. He argues that in United States v. Espinoza-
Morales, 621 F.3d 1141 (9th Cir. 2010), a case involving a
sex offense for which the defendant was sentenced after the
effective date of the 2008 Amendment, we did not explicitly
abrogate United States v. Lopez-Montanez, 421 F.3d 926 (9th
Cir. 2005), a case in which the sex offense sentence occurred
prior to the 2008 Amendment and where, unlike here, we
decided that the pre-2008 additional force standard was
required to be applied.
The result in Espinoza-Morales, however, was driven by
the fact that the defendant had committed the federal re-entry
offense immediately before changes to the Guidelines became
effective, but was sentenced after they became effective,
arguably subjecting him to a higher sentence. Espinoza-
Morales, 621 F.3d at 1146. Although a district court usually
applies the version of the Sentencing Guidelines in effect on
the date of a defendant’s sentencing, U.S. Sentencing
UNITED STATES V . GALLEGOS-GALINDO 9
Guidelines Manual § 1B1.11, the Ex Post Facto Clause of the
United States Constitution requires that if the Guidelines have
undergone substantive changes that would disadvantage the
defendant, then the defendant is to be sentenced under the
Guidelines in effect at the time of the offense, rather then at
sentencing. See United States v. Alfaro, 336 F.3d 876, 882
(9th Cir. 2003). It was for just that reason that we declined to
apply the 2008 Guidelines in Espinoza-Morales. We
reasoned that “if the 2008 amendment to § 2L1.2’s crime of
violence definition abrogated Lopez-Montanez, it was
substantive and therefore cannot be applied to [the
defendant].” Espinoza-Morales, 621 F.3d at 1146. In light
of this change, we followed Lopez-Montanez because it
offered an analysis of how to treat the issues prior to the 2008
Amendment to the Guidelines. Id.
The case at bar is critically different. The Ex Post Facto
Clause would require Gallegos-Galindo to be sentenced under
the Guidelines in effect at the time of his “current offense” –
the offense of re-entry, not the state sex offense – rather than
at the time of sentencing only if in the intervening period
there was an amendment that substantively disadvantaged
him. Id. The current offense took place on February 15,
2011, long after the 2008 Amendment to the Guidelines
became effective. There was no intervening change between
the offense and sentencing that would disadvantage Gallegos-
Galindo, and, unlike in Espinoza-Morales, we would not be
required to use the pre-2008 definition of a forcible sex
offense and engage in a determination of whether the crime
involved the use or attempted use of additional force. We can
therefore rely upon the further enumeration of which forcible
sex offenses constitute crimes of violence under the 2008
Amendment.
10 UNITED STATES V . GALLEGOS-GALINDO
In light of this fact, for those like Gallegos-Galindo who
are properly sentenced pursuant to the Guidelines after the
2008 Amendment, Lopez-Montanez is simply inapplicable to
the extent that it required, for a crime of violence
enhancement, force beyond penetration in the case of sex
offenses where “consent to the conduct is not given or is not
legally valid.” U.S. Sentencing Guidelines Manual § 2L1.2,
cmt n.1(B)(iii).
To decide whether Gallegos-Galindo’s sex offense was
properly characterized as a crime of violence, we ordinarily
follow the categorical and modified categorical approaches
outlined in Taylor v. United States, 495 U.S. 575 (1990); see
also Grajeda, 581 F.3d at 1189.
Under the categorical approach, we first consider whether
a prior offense “is categorically a crime of violence by
assessing whether the full range of conduct covered by the
statute falls within the meaning of that term.” Grajeda,
581 F.3d at 1189 (quotation marks, alterations, and citation
omitted). “If the statute of conviction is overbroad – that is,
if it punishes some conduct that qualifies as a crime of
violence and some conduct that does not – it does not
categorically constitute a crime of violence.”
Espinoza-Morales, 621 F.3d at 1144.
The Washington statute under which Gallegos-Galindo
was convicted states in relevant part:
(1) A person is guilty of rape in the third
degree when, under circumstances not
constituting rape in the first or second
degrees, such person engages in sexual
UNITED STATES V . GALLEGOS-GALINDO 11
intercourse with another person, not married
to the perpetrator:
(a) Where the victim did not consent as
defined in RCW 9A.44.010(7), to sexual
intercourse with the perpetrator and such lack
of consent was clearly expressed by the
victim’s words or conduct, or
(b) Where there is threat of substantial
unlawful harm to property rights of the
victim.
Wash. Rev. Code § 9A.44.060.
We need not decide whether Gallegos-Galindo’s crime
was categorically a crime of violence under these provisions.
The government does not argue that it was. Although we
have the technical power to reach a categorical analysis issue
embedded in the facts, we are not required to reach an issue
that is not briefed and not necessary for our decision. See
Lopez v. Smith, 203 F.3d 1122, 1125 n.5 (9th Cir. 2000) (en
banc). The government argues to us only that the Revised
Code of Washington § 9A.44.060(1) was a crime of violence
under the “modified categorical approach.” Because we
agree that it was a crime of violence under the modified
categorical analysis, we need not and do not decide the issue
not raised by the government as to whether it was
categorically a crime of violence.
Pursuant to the modified categorical approach, Gallegos-
Galindo’s record of conviction reflects the fact that he “was
convicted of the elements of the generically defined crime.”
United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir. 2007)
12 UNITED STATES V . GALLEGOS-GALINDO
(en banc). We have explained that the modified categorical
approach “requires us to determine – if we can – whether the
conduct for which the defendant was convicted fits within the
federal definition of the offense [detailed here in the
Guidelines note].” United States v. Snellenberger, 548 F.3d
699, 701 (9th Cir. 2008) (en banc) (per curiam), abrogated on
other grounds by Young v. Holder, 697 F.3d 976 (9th Cir.
2012) (en banc). That is, we are required to find that the
conviction is indeed a “predicate conviction for enhancement
purposes.” United States v. Bonat, 106 F.3d 1472, 1476 (9th
Cir. 1997) (quoting United States v. Sweeten, 933 F.2d 765,
769-70 (9th Cir. 1991)), cert. denied, 522 U.S. 874 (1997).
We can conclude that a conviction qualified as a crime of
violence under the modified categorical approach “only if the
record of conviction shows the jury [or district court, if there
is no jury trial] ‘necessarily’ found all of the generic
elements, or the defendant ‘necessarily’ admitted all of the
generic elements in a plea.” Sandoval-Lua v. Gonzales,
499 F.3d 1121, 1131 (9th Cir. 2007) (citing Taylor, 495 U.S.
at 599–602 and Shepard v. United States, 544 U.S. 13, 19–21
(2005)), overruled on other grounds by Young, 697 F.3d at
980.
Under the modified categorical approach, we may
appropriately consider certain kinds of documentation and
judicially noticeable facts when determining whether a
conviction is a predicate conviction for enhancement
purposes, including “the indictment, the judgment of
conviction, jury instructions, a signed guilty plea, or the
transcript from the plea proceedings.” United States v.
Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)
(quoting United States v. Casarez-Bravo, 181 F.3d 1074,
1077 (9th Cir. 1999)).
UNITED STATES V . GALLEGOS-GALINDO 13
The government offers Gallegos-Galindo’s Statement as
evidence that the sexual assault was committed without the
consent of the victim. The Statement is contained in a
judicially noticeable document – a signed guilty plea – and
indeed states that the victim did not consent to the offense.
Gallegos-Galindo’s conviction can thus be said to fall within
the Guidelines’ definition of “forcible sex offenses,” which
includes offenses “where consent to the conduct is not
given . . . .” U.S. Sentencing Guidelines Manual § 2L1.1,
cmt. n.1(B)(iii). Under the modified categorical approach,
the district court therefore did not err – plainly or otherwise
– when it concluded that Gallegos-Galindo’s conviction for
rape in the third degree was a crime of violence. The conduct
for which he was convicted does “fit[] within the . . .
definition” of a crime of violence, Snellenberger, 548 F.3d
at 701, and he indeed did “‘necessarily’ admit[] all of the
generic elements in [his] plea,” Sandoval-Lua, 499 F.3d at
1131.
AFFIRMED.