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, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and its 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 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
*1139Two 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, 353 Or. 507, 300 P.3d 154 (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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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.
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, *1140144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (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 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 [129 S.Ct. 2294, 174 L.Ed.2d 22 (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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), Johnson, 559 U.S. 133, 130 S.Ct. 1265, and Taylor, 495 U.S. 575, 110 S.Ct. 2143, suggest a generous definition of divisible. He commented:
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. [actually and intentionally touches or strikes another person against the will of the other; or 2. [i]n-tentionally causes bodily harm to another person.” Fla. Stat. § 784.03(l)(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 *1141victim. 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 “con-tainted] statutory phrases that cover several different ... crimes,” not several different methods of committing one offense. Johnson, 559 U.S. at 144 [180 S.Ct. 1265] (citing Nijhawan, 557 U.S. at 41 [129 S.Ct. 2294]).
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 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 Des-camps4 Section 163.425 covers the of*1142fense 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. 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, 125 S.Ct. 1254, 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.
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(l)(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(l)(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
*1143Because: (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(l)(e); 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 18 U.S.C. § 2242, I would hold that the district court properly sentenced Cabrera as a Tier III sex offender.
. 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
(C) occurs after the offender becomes a tier II sex offender.
. 18 U.S.C. § 2242 reads:
*1139Whoever, 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
(1) 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.
. 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.
. 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 *1142could 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)(l)(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.
. 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).
. 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."