dissenting:
Today the majority announces a new and startling method of selecting a standard of review, one in which the panel, at its sole option, selects which standard of review to apply. Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established standard of review, it would be required to reverse and remand for resentencing.
I.
This is a sentencing case. As in all sentencings, the district court was first required to calculate the correct advisory guidelines sentencing range. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). It did not do so. Defendant-appellant Gonzalez-Aparicio (“Gonzalez”) pled guilty to one count of illegal entry under 8 U.S.C. § 1326(b)(2). The sentencing court applied a 16-point “crime of violence” enhancement, U.S.S.G. § 2L1.2(b)(l)(A)(ii), that raised Gonzalez’s total offense level from 6 to 22.1 At Criminal History Category III, this raised his corresponding Guidelines range from 2-8 months to 51-63 months. The district court imposed a sentence of 51 months. As the majority acknowledges, the correctness of that sentence turns on the following issue: does the generic definition of statutory rape contain an age difference element? See Maj. Op. at 756.
II.
The majority invokes plain error review to avoid answering this key question, even though the question is a pure question of law. If the generic definition includes an age difference element, then Gonzalez’s state conviction cannot constitute statutory rape, because, as the majority concedes, see Maj. Op. at 754, the Arizona statute under which he was convicted, Ariz.Rev. Stat. § 13-1405, does not include an age difference element. Rivera-Cuartas v. Holder, 605 F.3d 699, 702 (9th Cir.2010) ( “ ‘[Wjhen the crime of conviction is missing an element of the generic crime altogether,’ the modified categorical approach is inapposite because the court ‘can never find that a jury was actually required to find all the elements of the generic crime.”) (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007)). Because we must analyze the statute un*764der the Taylot2 categorical analysis, the underlying facts do not matter.
The majority’s application of plain error review is contrary to our well-established rule that a pure question of law, even if unpreserved, is reviewed de novo absent prejudice to the opposing party. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.2009) (holding that “whether California’s definition of ‘attempt’ is broader than the common law definition, such that attempted robbery is not a ‘crime of violence’ ” is a purely legal question to which plain error review does not apply); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.2003) (declining to apply plain error review to the purely legal question of whether a conviction constitutes an “aggravated felony” under the categorical approach); United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001) (declining to apply plain error review where the defendant “argue[d] for the first time on appeal that the sentence imposed for his Nevada state theft offense [could not] constitute an aggravated felony for purposes of enhancing his [ ] sentence ....”).3
The majority contends that plain error review applies because Gonzalez’s failure to object caused the government prejudice by depriving it of the opportunity to submit “further documentation of the state court proceeding that could clearly be considered in any modified categorical analysis.” Maj. Op. at 764. But, as the majority itself recognizes, “the modified categorical approach does not apply at all when the statute of conviction lacks an element of the generic crime.” Maj. Op. at 755. Again, the issue is whether generic statutory rape contains an age difference element. If the answer is yes, then Gonzalez’s conviction does not qualify as a matter of law under the categorical approach, and he must be resentenced according to the correct advisory range of 2-8 months. “Further documentation of the state court proceeding” could not affect the analysis. Gonzalez’s failure to object did not prejudice the government.
Most perplexingly, however, the majority also justifies its application of plain error review as an exercise of its purported “discretion” to select the appropriate standard of review. Maj. Op. at 756. The idea that we have discretion to choose between standards of review is antithetical to the very concept of a standard of review. If we can pick whatever standard suits us, free from the direction of binding principles, then there is no standard at all. Our cases that apply the “pure question of law” exception to plain error review do not engage in any such discretionary selection. Rather, the cases limit themselves to asking whether the relevant issue is purely legal and whether the opposing party suffers no prejudice. If the answer to both questions is yes, our cases invariably have applied de novo review. See Evans-Martinez, 611 F.3d at 642; Saavedra-Velazquez, 578 F.3d at 1106; Huerta-Guevara, 321 F.3d at 886; Echavarria-Escobar, 270 F.3d at 1267-68.
*765Rather than recognizing these cases as binding, the majority comes up with a newly-minted rule under which it grants itself discretion over which standard of review to apply. It does this by seizing upon the slender reed of a one-sentence footnote that contains no analysis of the “pure question of law” exception to plain error review. See United States v. Burgum, 633 F.3d 810, 812 n. 2 (9th Cir.2011) (“To the extent we have discretion not to apply plain error review, we decline to exercise that discretion in this instance.”). As is plainly clear from its language, the footnote does not actually state that appellate courts have discretion to choose between standards of review. And the footnote certainly does not overrule our earlier decisions by granting courts discretion to apply anything other than de novo review where an unpreserved question is purely legal and there is no prejudice to the opposing party. The majority overrides this clear line of precedent by simple fiat, “finding] that it is not appropriate to exercise this discretion in light of the specific circumstances of the current appeal.” Maj. Op. at 756.
In announcing its newly-minted rule giving itself the discretionary option of which standard of review to apply, the majority simply ignores our long-established case law that pure questions of law are an exception to plain error review. Because our case law so dictates, I would review de novo the purely legal question on which this appeal turns.
III.
Turning to that question of law, although we have never squarely decided whether generic statutory rape includes an age difference element, we have come close. Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), held that “sexual abuse of a minor” requires an age difference element. Id. at 1152 (“[T]he generic offense of ‘sexual abuse of a minor’ requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.”). The court relied on sources that defined “statutory rape,” id. at 1153, because it determined that offenses titled “sexual abuse of a minor” in state and federal criminal codes “define what would, in more common parlance, be referred to as statutory rape.” Id. at 1156. In other words, Estradar-ESpinoza’s holding that “sexual abuse of a minor” contains an age difference element is based on the conclusion that generic statutory rape contains an age difference element.4 We subsequently emphasized this point by declaring that Estradar-Espinoza “was intended to define statutory rape laws only,” and that a separate generic definition of “sexual abuse of a minor” *766applies to laws that require abuse. United States v. Medina-Villa, 567 F.3d 507, 515 (9th Cir.2009); see also United States v. Valencia-Barragan, 608 F.3d 1103, 1107 n. 2 (9th Cir.2010) (“Although Estrada-Espinoza [purported to] defin[e] ‘sexual abuse of a minor’ generally, we subsequently clarified that the Estrada-Espinoza definition ‘encompassed statutory rape crimes only.’ ”) (citation omitted).
Although it refuses to decide the issue, the majority suggests that the generic crime of statutory rape might not contain an age difference requirement, EstradarEspinoza notwithstanding, because the Sentencing Guidelines enumerate “sexual abuse of a minor” and “statutory rape” separately. Maj. Op. at 760; see Medina-Villa, 567 F.3d at 515(“When interpreting the Guidelines, we must give meaning to all its words and render none superfluous.”). The implication is that because Estrada-Espinoza defines “sexual abuse of a minor” to mean “statutory rape,” we should define “statutory rape” to mean something other than “statutory rape” to avoid rendering the term superfluous. That reasoning is backwards. Moreover, Medinar-Villa recognizes that the existence of the second definition of “sexual abuse of a minor” — covering laws that require abuse-avoids rendering the term “statutory rape” redundant. See 567 F.3d at 515(“/7//we were to define ‘sexual abuse of a minor’ in U.S.S.G. § 2L1.2 as limited to [the Estrada-Espinoza definition], we would eliminate the need for the separate and independent example of ‘statutory rape’ as a ‘crime of violence.’ ”) (emphasis added). In other words, in the context of U.S.S.G. § 2L1.2 — which, in contrast to the immigration provision that Estrada-Espinoza interprets, enumerates the terms “sexual abuse of a minor” and “statutory rape” separately — the two generic definitions of “sexual abuse of a minor” correspond to separate terms. The Medinar-Villa definition corresponds to “sexual abuse of a minor” and the Estrada-ESpinoza definition corresponds to “statutory rape.” There is no overlap.5
The majority also implies that United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir.2007), which predates Estrada-Espinoza, suggests that generic statutory rape does not contain an age difference element. See Maj. Op. at 757-58. But Gomez-Mendez did not address the age difference issue. The case concerned a state law prohibiting anyone 21 or older from having sexual intercourse with anyone under 16. Although the court declared that statutory rape is “ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse *767with a minor under the age of consent,” it clearly did not have to consider whether the generic definition included an age difference element, because the state law satisfied that requirement. See Gomez-Mendez, 486 F.3d at 603. In Estrada-Espinoza, on the other hand, the age difference element was dispositive. 546 F.3d at 1159.
In sum, under Estrada-E spinoza, § 13-1405 does not meet the generic definition of statutory rape because it does not contain an age difference requirement. This case should be remanded for resentencing under the correct Guidelines range of 2-8 months.
IV.
Although it is unnecessary to reach the issue under my analysis, I note that I also disagree with the majority’s application of the modified categorical approach. The Arizona statute is over-inclusive: it defines minors as persons under 18, while the generic crime defines minors as persons under 16. Compare Ariz.Rev.Stat. § 13-1405, with United States v. Rodriguez-Guzman, 506 F.3d 738, 745 (9th Cir.2007) (“[T]he term ‘minor’ in the context of a statutory rape law means a person under sixteen years of age.”). The majority holds that Gonzalez’s conviction qualifies despite the statute’s overinclusiveness because he pled guilty to a crime involving a 14 year-old victim. But the only factual support for this conclusion comes from the Presentence Investigation Report (“PSR”), which reads as follows: “Court records show [Gonzalez] pleaded guilty to Count 1 of an indictment charging that in November 1998 he ‘engaged in sexual intercourse or oral sexual contact with [victim] a minor under the age of fifteen years....’” The government submitted no other documentation of the conviction.
The majority’s reliance on the PSR, again, contravenes clear precedent. In United States v. Corona-Sanchez, we held that a PSR stating that the defendant had pleaded guilty to facts contained in charging papers did not suffice to establish the elements of the defendant’s conviction for purposes of the modified categorical approach. 291 F.3d 1201, 1212 (9th Cir.2002) (en banc) (“Corona-Sanchez’s presentence report is insufficient evidence because all it does is recite the facts of the crimes as alleged in the charging papers. That it also notes that he ‘P/G as charged’ does not remedy the situation, because it does not indicate the source of this information.”), superseded on other grounds by U.S.S.G. § 2L1.2, cmt. n. 4 (2002). Similarly, in United States v. PimenteUFlores, we held that a district court committed plain error by relying solely on the PSR to find that the defendant’s conviction constituted a “crime of violence” under the modified categorical approach. 339 F.3d 959, 968 (9th Cir.2003).
The majority recognizes that “a presentence report reciting the facts of the crime is insufficient evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime....” Maj. Op. at 762 (quoting Corona-Sanchez, 291 F.3d at 1212). But it nonetheless affirms Gonzalez’s sentence because the PSR here, unlike the PSR in Corona-Sanchez, states that its information comes from “court records.” I find this distinction perplexing. While our case law suggests (without holding) that a PSR might support application of the modified categorical approach if it makes clear that it draws its information from an “identified, acceptable source,” such as “a signed plea agreement, a transcript of the plea hearing, or a judgment of conviction,” Corona-Sanchez, 291 F.3d at 1212, the cryptic reference to “court records” in Gonzalez’s PSR obviously does not fit that bill. One cannot discern the pre*768cise source of the information. The district court committed plain error by relying on the PSR exclusively. Id. (“The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generieally defined crime....”) (emphasis added); Pimentel-Flores, 339 F.3d at 968 (“We can understand the frustration of district judges who sentence a defendant on a record to which no objection was made only to have to later revisit the matter.... Relying solely on the factual description in the PSR, however, was plain error.”).
V.
For all of the reasons discussed above, I respectfully dissent.
. The 16-point enhancement was based on an Arizona state conviction for sexual conduct with a minor under Ariz.Rev.Stat. § 13-1405.
. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
. In United States v. Charles, 581 F.3d 927, 933 (9th Cir.2009), upon which the majority relies, the court applied plain error review to the legal question of whether the defendant's state conviction was “categorically a controlled substance offense.” But Charles never considered the "pure question of law” exception to plain error review, apparently because the defendant did not raise it. See id. at 932-33. Charles therefore does not conflict with the above authority.
. This conclusion about generic statutory rape comports with the prevailing definition of the crime. See United States v. Osborne, 551 F.3d 718, 719-720 (7th Cir.2009) (“Many criminal laws, of which statutory rape is the best-known example, rest on a belief that a combination of youth and age difference prevents an effective consent to sexual conduct.”) (emphasis added); Model Penal Code § 213.3 (2001) (defining "Corruption of Minors and Seduction” to require that the "actor is at least [four] years older than the other person”); "Statutory Rape: A Guide to State Laws and Reporting Requirements,” The Lewin Group, prepared for the Department of Health and Human Services (Dec. 15, 2004), http://www.lewin.com/conten1/publications/ 3068.pdf ("In 27 states, the legality of engaging in sexual intercourse with minors is, at least in some circumstances, based on the difference in age between the two parties.”); Charles A. Phillips, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Legis. J. 1, 62 (1997) (“An element present in most states is an age difference between the parties.”).
. The government argues briefly that even if § 13-1405 does not constitute statutory rape, it is still a "crime of violence” because it meets the definition of "forcible sex offense,” which the Guidelines commentary lists as a separate qualifying offense. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (2009) (" 'Crime of violence' means any of the following ... 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, sexual abuse of a minor.... ”). But this reading would render the term “statutory rape” superfluous: if statutory rape crimes are "forcible sex offenses” simply because the minor’s consent is invalid under state law, then why does the commentary list statutory rape separately? Moreover, when the Sentencing Commission added the parenthetical language defining "forcible sex offenses” to include crimes involving legally invalid consent, it did so to overrule cases that had excluded from the generic definition rapes of mentally impaired or intoxicated persons and rapes accomplished by coercive non-violent threats (e.g., an employer's threat "to fire a subordinate”). See Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2008, 73 Fed.Reg. 26924, 26935 (May 9, 2008). The parenthetical language does not target statutory rape.