concurring:
I wanted to add a few of my own thoughts concerning United States v. Granbois, 376 F.3d 993, 996 (9th Cir.2004). As I pointed out in my concurrence in United States v. Asberry, 394 F.3d 712, 720-21 (9th Cir.2005), I continue to think Granbois was incorrectly decided. I find the reasoning of our sister circuits in United States v. Thomas, 159 F.3d 296, 299 (7th Cir.1998) and United States v. Houston, 364 F.3d 243 (5th Cir.2004) to be more persuasive.
In Thomas, the court considered Illinois’ statutory rape law under a categorical approach and held that the government did not present sufficient evidence to prove the crime presents “a serious potential risk of physical injury to another”:
The government has not furnished us, nor did the district court cite, any studies or reasons that would support a conclusion that sex between a 16 year old girl (perhaps, as we said, a day short of 17) and a 22 year old man poses a potential risk of physical injury to the girl (or to her fetus, which we can assume is also “another” within the meaning of the statute, should the girl become pregnant). More than 40 percent of the 16 year old girls in our society have had sexual intercourse, Alan Guttmacher Institute, Sex and America’s Teenagers 18-20 (1994); 45 of the 50 states permit marriage at 16 — including Illinois (if the parents consent, as almost all the states require), 750 ILCS 5/203; and in a majority of states 16 is the age of consent, rather-than 17 as in Illinois. In light of these legal and sociological facts, it is difficult to, maintain on a priori grounds that sex is physically dangerous to 16 year old girls.
Id. at 299.
Similarly, in United States v. Houston, 364 F.3d 243 (5th Cir.2004), the Fifth Circuit concluded that “sexual intercourse between a 20 year old male and a female a day under 17, free of aggravating circumstances such as the victim’s lack of consent or the offender’s use of violence, does not present a serious potential risk of physical injury.” Id. at 248.1
.As noted in the majority opinion, under the “categorical approach” laid out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a violation of section 261.5(c) qualifies as a crime of violence and hence an aggravated felony, “if and only if the full range of conduct covered by it falls within the meaning of that term.” United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (citation omitted). There is no evidence in our case- that consensual sex between a man who just turned 21 years old and a girl who is one day short of being 18 years old5 would cause either “a serious poten*1160tial risk, of physical injury to another,” or “a'substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense.”
The court in Granbois arrived at its holding by incorporating the “crime of violence” definition of U.S.S.G. § 2L1.2 into U.S.S.G. § 4B1.2(a); since section 2L1.2 classifies “sexual abuse of a minor” as a “crime of violence,” the court held engaging in sexual contact with a minor was also a “crime of violence” for purposes of section 4B1.2(a). Id. Granbois noted the difference between the “crime of violence” definitions in U.S.S.G. §§ 2L1.2 and 4B1.2(a), but held it was immaterial. Id. (quoting United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th Cir.2003)). In holding there is no difference between the “crime of violence” definitions in U.S.S.G. §§ 4B1.2(a) and 2L1.2, Granbois ignores the inclusion of the “statutory rape” and “sexual abuse of a minor” terms in section 2L1-.2, and the exclusion of those terms in section 4B1.2(a). Nevertheless, Granbois is controlling here and we are bound by it.
. The courts in Thomas and Houston were looking at whether statutory rape presents “a serious potential risk of physical injury to another,” whereas we are concerned with whether it presents "a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense.” On the facts of this case, however, I do not think the difference in the statutes changes the analysis.
. Because under the categorical approach an offense is an aggravated felony only if the "full range of conduct covered by it falls within that term” we must evaluate whether a violation of section 261.5(c) is a crime of violence by using a hypothetical that involves the least culpable conduct possible that would still constitute a violation of section 261.5(c). Baron-Medina, 187 F.3d at 1146. Thus, we must assume that the sex was consensual. We must also assume the victim was one day short of 18 and the perpetrator had just turned 21.