dissenting.
The sole issue in this appeal is whether Gomez’s prior conviction for third-degree criminal sexual conduct under Michigan Compiled Laws § 750.520d(l)(a) is a conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). This depends upon our application of the categorical approach.
Michigan law provides that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and ... [t]hat other person is at least 13 years of age and under 16 years of age.” Mich. Comp. L. § 750.520d(l)(a). Under U.S.S.G. § 2L1.2(b)(l)(A)(ii), a sixteen-level enhancement applies “[if] the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence.” Pursuant to the Sentencing Commission’s application notes, a “crime of violence” includes “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), statutory rape, [and] sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii).
To determine whether Gomez’s conviction for third-degree criminal sexual conduct is a conviction for a crime of violence, we apply the categorical approach, “comparing] the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime— ie., the offense as commonly understood.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In deciding what are the elements of the generic crimes of statutory rape and sexual abuse of a minor, I would follow the approach of the U.S. Court of Appeals for the Ninth Circuit as outlined in United States v. Gomez, 757 F.3d 885 (9th Cir. 2014). Evaluating the Model Penal Code, federal law, and state laws, the Ninth Circuit concluded that the generic crimes of statutory rape and sexual abuse of a minor include a requirement of an age difference between the minor and the defendant of at least four years. Because the Michigan offense of third-degree criminal sexual conduct does not include a four-year age difference as a required element, the Michigan statute § 750.520d(l)(a) does not constitute the generic crimes of statutory rape or sexual abuse of a minor and thus does not qualify as a crime of violence under U.S.S.G. § 2L1.2.
The Ninth Circuit’s approach comports with the preferred approach to analyze the generic definition of a crime as set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 598 & n. 8, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and by this court, see, e.g., United States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir.2012). Although the majority suggests that it fa*410vors an alternative, the so-called “plain meaning approach” of the Fifth Circuit, see United States v. Rodriguez, 711 F.3d 541 (5th Cir.2013) (en banc), the majority explicitly states that it does not base its holding on such an approach.
The majority holds instead that violation of § 750.520d(l)(a) constitutes a “forcible sex offense[ ]” and therefore a crime of violence under U.S.S.G. § 2L1.2. The government did not present this contention in the district court, but first raised the argument in its appellate brief. The government now points to Amendments 658 and 722 which broadened the commentary to § 2L1.2. As the government and the majority observe, “crime of violence” includes “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), statutory rape, [and] sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt. n. l(B)(Hi).
The purpose of the addition of the parenthetical after “forcible sex offenses” was to clarify that the use of force was not required in cases such as where assent was based on threats to reveal embarrassing secrets or exploitation of weakened victims. See U.S.S.G.App. C., Vol. Ill, Amd. 722, p. 302-03. The expanded definition of “forcible sex offenses” does not eliminate or subsume the separate role for statutory rape: where there is no valid legal consent because victim is under the age of sixteen, the elements of the generic crime of statutory rape must be present in order for the state statute to qualify as a crime of violence. Otherwise, the explicit listing of statutory rape would be mere surplusage, The Ninth and Fourth Circuits agree. See, e.g., United States v. Caceres-Olla, 738 F.3d 1051, 1055-56 (9th Cir.2013); United States v. Rangel-Castaneda, 709 F.3d 373, 380 (4th Cir.2013).
Under the majority’s approach, a state statute that labels consensual sexual intercourse between two fifteen-year olds as “statutory rape” would qualify as a crime of violence under the commentary to § 2L1.2. That does not comply with my understanding of the Supreme Court’s categorical approach, see Taylor, 495 U.S. at 598 & n. 8, 110 S.Ct. 2143, or with our approach, see Rede-Mendez, 680 F.3d at 556.
I would vacate the sentence that incorrectly applied § 2L1.2(b)(l)(A)(ii) and would remand for resentencing with the correct eight-level enhancement under U.S.S.G. § .2L1.2(b)(l)(C).