dissenting.
This appeal presents the question whether Viezcas-Soto’s prior conviction for violating California’s statutory rape law qualifies as a “felony” and a “crime of violence” for purposes of a 16-level enhancement under § 2L1.2(b)(l)(A) of the advisory sentencing guidelines. Although the relevant offense carried a maximum sentence of three years’ imprisonment, the Court finds that Viezcas-Soto’s conviction was converted from a felony to a misdemeanor under California law. The Court goes on to hold that the district court’s erroneous application of § 2L1.2(b)(l)(A) requires a remand for resentencing. Because I would find that Viezcas-Soto’s pri- or conviction qualifies as a felony and a crime of violence and that his 24-month sentence is reasonable, I respectfully dissent.
At the outset, it is worth reiterating that a “felony” under § 2L1.2(b)(l)(A) is “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2 cmt. n. 2 (emphasis added). The Court asserts that our application of this “fairly straightforward definition” is “complicated” by the fact that California treats statutory rape as a so-called “wobbler” offense. Ante, at 906. In particular, section 261.5(c) of the California Penal Code provides that
[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.4 It is undisputed that Viezcas-Soto was
charged with two counts of committing a felony violation of section 261.5(c). But that does not necessarily signify that the specific characteristics of Viezcas-Soto’s offense made it too severe to qualify as a misdemeanor, for under California law a wobbler is “regarded as a felony for every purpose until judgment.” United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992) (citing People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102 (1959)). The sentencing court may convert a felony into a misdemeanor by taking certain actions enumerated by statute, such as “imposing a punishment other than imprisonment in the state prison,” Cal.Penal Code § 17(b)(1), or “granting] probation to a defendant without imposition of sentence and ... declaring] the offense to be a misdemeanor,” id. § 17(b)(3).
The only evidence about the disposition of Viezcas-Soto’s prior conviction is the following fragment contained in the PSR: “5 years probation, 365 days jail (credit for 6 days jail) suspended.” The Court correctly notes that an order granting probation and suspending the imposition of a sentence is not a “judgment” under California law and thus cannot automatically convert a felony into a misdemeanor. See Robinson, 967 F.2d at 293 (citing People v. Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5 (1963)). By contrast, an order granting probation after suspending the execution of a sentence that was actually imposed is a “judgment” under California law and can, therefore, automatically convert a felony into a misdemeanor. See id. (citing Arguello, 59 Cal.2d 475, 30 Cal.Rptr. 333, 381 P.2d 5). Based on the quoted language from the PSR, the Court finds that the state sentencing court sentenced Viezcas-Soto to 365 days in jail, suspended the execution of that sentence, and granted a five-year term of probation. Ante, at 5. Consequently, the Court concludes that the state court’s order qualified *910as a judgment and that the court’s imposition of a punishment other than imprisonment in the state prison automatically converted Viezcas-Soto’s conviction from a felony to a misdemeanor. Ante, at 5.
In my view, the Court gives short shrift to the threshold question whether California’s classification of Viezcas-Soto’s underlying conviction controls the meaning of the term felony under § 2L1.2(b)(l)(A). An alternative to the Court’s admittedly “complicated” approach would be to limit our inquiry to the maximum term of imprisonment that the state court was authorized to impose for the relevant offense. While section 261.5(c) does not specify a maximum term of incarceration in state prison, section 18 of the California Penal Code provides that the default maximum term of imprisonment for a felony offense is three years. Accordingly, section 261.5(c) would appear to qualify as a felony under § 2L1.2(b)(l)(A) because it is “punishable by imprisonment for a term exceeding one year.”
The Court reaches a contrary conclusion by accepting the proposition that when a wobbler is converted from a felony to a misdemeanor it is thereafter treated as a misdemeanor “for all purposes.” See Cal.Penal Code § 17(b). Indeed, the Court gives this proposition retroactive force, declaring that section 261.5(c) is either “a misdemeanor punishable by imprisonment in the county jail for a term not exceeding one year” or “a felony punishable by imprisonment in the state prison for up to three years.” Ante, at 4 (emphasis added). The Court’s construction of section 261.5(c) begs the question. The fact that a wobbler is ultimately converted from a felony to a misdemeanor does not prove that the offense was never punishable by imprisonment for a term exceeding one year, but only that the offense was not actually punished as severely as it might have been if it were treated as a felony. Notwithstanding the final classification of Viezcas-Soto’s prior conviction under California law, the state court clearly possessed the authority at the time of sentencing to impose a term of imprisonment that exceeded one year. The Court does not convincingly explain why the maximum term of imprisonment is not controlling as a matter of federal law.5
To be sure, the Court can claim support for its approach from a line of cases in which we have examined state law to determine whether a defendant is eligible for an enhanced sentence by virtue of a prior conviction. See, e.g., United States v. Gomez-Hernandez, 300 F.3d 974, 977-78 (8th Cir.2002) (examining California law to determine whether the defendant’s prior conviction for violating California’s statutory rape law qualified as a “felony” and a “crime of violence” under § 2L1.2(b)(1)(A)); United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994) (examining California law to determine whether the defendant’s prior drug conviction triggered a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)). On the other hand, there is a line of cases involving an analogous provision of the guidelines in which we have held that the maximum term of imprisonment is controlling, regardless of how an offense is treated under state law. See, e.g., United States v. Hester, 917 F.2d 1083, 1084-85 (8th Cir.1990) (holding that the defendant’s prior conviction qualified as a felony under § 4B1.1 of the then-mandatory sentencing guidelines, *911even though the relevant offense was classified as a misdemeanor under California law). Likewise, at least two of our sister circuits have held that the maximum term of imprisonment, rather than the state-law classification, determines whether an underlying conviction qualifies as a felony under § 2L1.2(b)(l)(A). See United States v. Cordova-Arevalo, 456 F.3d 1229, 1234 (10th Cir.2006); United States v. Amaya-Portillo, 423 F.3d 427, 433 (4th Cir.2005); see also United States v. Reinoso, 350 F.3d 51, 55 (2d Cir.2003) (“Section 2L1.2’s failure to mandate that the [federal] sentencing court accord a defendant’s conviction the status that New York law ascribes to it indicates Congress’s intent not to so limit the definition of ‘conviction.’ ”).
Focusing exclusively on the maximum term of imprisonment has several clear advantages over the Court’s approach. Most importantly, it permits the federal courts to “avoid the vagaries of sentencing defendants on the basis of idiosyncratic or unusual felony/misdemeanor classifications.” United States v. Jones, 235 F.3d 342, 346 (7th Cir.2000) (holding that the maximum term of imprisonment rather than the state-law classification determines whether an underlying conviction qualifies as a felony under § 4B1.1 of the guidelines). In the mine run of cases, the maximum term of imprisonment is likely to “more accurately and equitably reflect, for cross-jurisdictional purposes, the seriousness of [a] crime than will the crime’s felony/ misdemeanor classification.” Id. Allowing defendants like Viezcas-Soto to benefit from California’s idiosyncratic classification of statutory rape and other wobbler offenses is fundamentally inconsistent with the goal of preserving some modicum of uniformity in federal sentencing. See id. Because Viezcas-Soto’s prior conviction for violating section 261.5(c) was punishable by up to three years’ imprisonment, I would find that it qualifies as a felony under § 2L1.2(b)(1)(A).
Assuming, for the sake of argument, that California’s classification scheme is controlling, I would still find that ViezcasSoto’s underlying conviction qualifies as a felony. The dispositive question is whether the state court converted Viezcas-Soto’s conviction from a felony to a misdemeanor by “imposing a punishment other than imprisonment in the state prison.” See CaLPenal Code § 17(b)(1). The Court answers this question in the affirmative, finding that the state court sentenced ViezcasSoto to 365 days in jail, suspended the execution of that sentence, and granted a five-year term of probation. Ante, at 5. I disagree for two reasons.
First, the Court’s description of the state court’s sentencing order is premised on conjecture. Recall that an order granting probation and suspending the imposition of a sentence is not a judgment under California law, while an order granting probation after suspending the execution of a sentence that was actually imposed is a judgment and can, therefore, automatically convert a felony into a misdemeanor. As I noted above, the only evidence in the record regarding the disposition of Viezcas-Soto’s prior conviction is a fragment contained in the PSR that merely records a bare-bones summary of the outcome: “5 years probation, 365 days jail (credit for 6 days jail) suspended.” In this context, “suspended” could mean that the state court sentenced Viezcas-Soto to 365 days in jail, suspended the execution of that sentence, and granted a five-year term of probation. Alternatively, “suspended” could mean that the state court suspended the imposition of a sentence, granted Viezcas-Soto a five-year term of probation, and ordered Viezcas-Soto to spend 365 days in jail as a condition of his probation. See CaLPenal Code § 1203.1(a) (providing that *912a sentencing court may, “in [an] order granting probation and as a condition thereof, ... imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case”); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002) (finding that a wobbler was not converted from a felony to a misdemeanor where “the California court suspended imposition of [the defendant’s] sentence, granted him five years probation, and sentenced him to serve 365 days in county jail with 180 days suspended”). Given the ambiguity in the record, I cannot accept the Court’s conclusion that the state court suspended the execution, rather than the imposition, of ViezcasSoto’s sentence.
Second, the Court’s determination that the state court converted Viezcas-Soto’s conviction from a felony to a misdemeanor assumes that the state court violated state law. As the Court concedes, ViezcasSoto’s five-year term of probation exceeds the maximum term of probation authorized for two counts of committing a misdemean- or violation of section 261.5(c). Ante, at 6; see Cal.Penal Code § 1203a. Meanwhile, Viezcas-Soto’s five-year term of probation is entirely consistent with the maximum term of probation authorized for two counts of committing a felony violation of section 261.5(c). See Cal.Penal Code §§ 1203(a), 1203.1(a). The Court does not reconcile its finding that the state court treated Viezcas-Soto’s conviction as a misdemeanor with the inconvenient fact that Viezcas-Soto received a term of probation that could only be lawfully imposed on a felony offender. I would avoid this incongruity by applying the well-established “presumption that state courts know and follow the law.” Woodford, v. Visciotti 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). Here, that means presuming the state court knew that it could only lawfully impose a five-year term of probation if Viezcas-Soto was a felony offender. Since the state court imposed a five-year term of probation, I would conclude that it must not have converted Viezcas-Soto’s conviction from a felony to a misdemeanor.
Having determined that Viezcas-Soto’s prior conviction for violating section 261.5(c) of the California Penal Code qualifies as a felony, I would go on to find that the conviction also qualifies as a crime of violence under § 2L1.2(b)(l)(A)(ii). At the time of Viezcas-Soto’s federal sentencing proceeding, the commentary to § 2L1.2 defined “crime of violence” as
murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (2007) (emphasis added).6 We have previously held that a prior conviction for any of the enumerated crimes qualifies as a per se crime of violence under § 2L1.2(b)(1)(A)(ii), regardless of whether the crime has as an element the use, attempted use, or threatened use of physical force against the person of another. See Gomez-Hernandez, 300 F.3d at 979. In turn, we employ the categorical approach announced by the Supreme Court in Tay*913lor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a prior conviction fits the “generic” definition of an enumerated crime. See United States v. Medina-Valencia, 538 F.3d 831, 833 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 749, 172 L.Ed.2d 744 (2008). Under this approach, we “look only to the fact of conviction and statutory definition of the [underlying] offense.” United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.2006) (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). If a statute is overly inclusive — “criminalizing] both conduct that would qualify a defendant for an enhancement and conduct that would not do so” — we may then “refer to the ‘terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant ..., or to some comparable judicial record of this information,’ in order to determine whether the [conviction] ‘ “necessarily” rested’ on facts equating to the qualifying offense.” Id. (quoting Shepard v. United States, 544 U.S. 13, 21, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
Although section 261.5(c) is a subsection of California’s statutory rape law, ViezcasSoto contends that section 261.5(c) does not comport with the generic definition of statutory rape because California sets the age of consent at eighteen rather than sixteen. Viezcas-Soto’s principal authority for this contention is United States v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir.2007), in which the Ninth Circuit determined that the generic definition of statutory rape is unlawful sexual intercourse with a person under sixteen years of age, id. at 744-46. The Fifth Circuit has likewise decided that the “the ordinary, contemporary, and common meaning of minor, or age of consent for purposes of a statutory rape analysis, is sixteen.” United States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 128 S.Ct. 2916, 171 L.Ed.2d 851 (2008). Both courts arrived at the generic definition of statutory rape by adopting the age of consent used in the Model Penal Code and a majority of state criminal codes. Rodriguez-Guzman, 506 F.3d at 745-46; Lopez-DeLeon, 513 F.3d at 474-75. According to the Fifth Circuit’s more recent survey, thirty-three states plus the District of Columbia set the age of consent at sixteen; six states set the age of consent at seventeen; and eleven states, including California, set the age of consent at eighteen.7 Lopez-DeLeon, 513 F.3d at 474 n. 3. The Ninth Circuit and the Fifth Circuit therefore held that section 261.5(c) is overly inclusive compared to the generic definition of statutory rape. Rodriguez-Guzman, 506 F.3d at 746; Lopez-DeLeon, 513 F.3d at 475.
I am not persuaded that this court should follow the approach taken by the Ninth Circuit and the Fifth Circuit, which mistakes majority support for general consensus. In my view, our objective is to determine the “uniform definition” of statutory rape based on the “core, or common denominator, of the contemporary usage of the term.” Taylor, 495 U.S. at 592, 110 S.Ct. 2143 (emphasis added). Consider, in this regard, the Supreme Court’s description of “generic burglary” as a crime containing at least three elements: “an unlaw*914ful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id. at 598, 110 S.Ct. 2143. The Court recognized that “exact formulations vary,” id., and that some burglary statutes were “narrower than the generic view,” id. at 599. Notably, the Court did not restrict the generic definition of burglary to the lowest common denominator: “a breaking and entering of a dwelling [as opposed to any “building” or “structure”] at night [as opposed to any time].” Id. at 592, 110 S.Ct. 2143 (emphasis added). Instead, the Court adopted a definition that was broad enough to encompass the burglary statutes on the books in all but “[a] few” states. Id. at 599, 110 S.Ct. 2143.
In light of the governing principles set forth by the Supreme Court in Taylor, the generic definition of statutory rape adopted by our sister circuits in Rodriguez-Guzman and Lopez-DeLeon is almost certainly too narrow. While Taylor settled on a definition of generic burglary that excluded the burglary statutes of a few states, it did not countenance the articulation of a generic definition based merely on majority rule. It seems to me that a definition of “statutory rape” that excludes the statutory rape laws of seventeen states, including the most populous state in the Union, along with Texas (which sets the age of consent at seventeen), New York (seventeen), Florida (eighteen), and Illinois (seventeen), cannot reasonably be classified as “generic.” Thus, I would hold that the generic, contemporary definition of statutory rape is unlawful sexual intercourse with a person under eighteen years of age. This definition is “uniform” in the sense that it encompasses the variable ages of consent used in the Model Penal Code and the criminal codes of all fifty states plus the District of Columbia. Moreover, this definition is based on the “common denominator” shared by all statutory rape laws — the criminalization of sexual intercourse with a person below an age set by legislative fiat at eighteen years or younger.8
Applying the categorical approach, I would find that California’s statutory rape law, section 261.5(c), comports with the generic definition of statutory rape. Accordingly, I would find that Viezcas-Soto’s prior conviction for violating section 261.5(c) qualifies as a per se crime of violence under § 2L1.2(b)(l)(A)(ii).9
Viezcas-Soto argues, in the alternative, that his sentence of 24 months’ imprisonment is substantively unreasonable because it is greater than necessary to comply with the purposes of sentencing under 18 U.S.C. § 3553(a). I disagree.
*915Viezcas-Soto was convicted of illegal reentry after being deported in violation of 8 U.S.C. § 1326(a), which carries a base offense level of 8. After applying the disputed 16-level enhancement under § 2L1.2(b)(l)(A) and a 3-level reduction for acceptance of responsibility under § 3El.l(b), the district court correctly determined that Viezcas-Soto’s total offense level under the advisory sentencing guidelines was 21. Since Viezcas-Soto’s criminal history placed him in category II, the applicable guideline range was 41 to 51 months. Nevertheless, the district court imposed a substantially lower sentence based on its erroneous determination that Viezcas-Soto was subject to a maximum sentence of 24 months.
Although Viezcas-Soto pled guilty to violating subsection (a) of § 1326, which standing alone carries a maximum sentence of 24 months, he was still eligible for a higher maximum sentence under subsection (b) of § 1326, which the Supreme Court has held is a “penalty provision” rather than a “separate crime.” See Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In particular, subsection (b)(1) provides that an offender who violates subsection (a) is subject to a maximum sentence of ten years if he was previously deported “subsequent to a conviction for [committing] ... a felony”; and subsection (b)(2) provides that an offender who violates subsection (a) is subject to a maximum sentence of twenty years if he was previously deported “subsequent to a conviction for [committing] ... an aggravated felony.” See id. at 232, 118 S.Ct. 1219. The district court found that ViezcasSoto’s prior conviction qualified as a felony and a crime of violence-a category that includes the most serious aggravated felonies, see United States v. Reyes-Solano, 543 F.3d 474, 476 (8th Cir.2008); Gomez-Hernandez, 300 F.3d at 976. Provided that these findings were correct — as I suggest in the preceding portion of this opinion — then Viezcas-Soto was subject to a maximum sentence of 240 months and the correct guideline range was 41 to 51 months.
Needless to say, Viezcas-Soto was not prejudiced by the district court’s erroneous determination of the maximum sentence; after all, the district court’s error resulted in its imposition of a sentence below the presumptively reasonable guideline range.10 The record shows that the district court adequately considered the sentencing factors set out in 18 U.S.C. § 3553(a), particularly “the history and characteristics of the defendant,” id. § 3553(a)(1), and “the need for the sentence imposed to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C). Specifically, the district court discussed Viezcas-Soto’s previous conviction for illegal reentry after being deported — the same offense to which he pled guilty in this case. The district court reported that Viezcas-Soto’s first illegal reentry conviction resulted in a sentence of 24 months’ imprisonment. Noting that the previous sentence did not deter ViezcasSoto from repeating the same crime, the district court announced that it would impose “the same sentence as [Viezcas-Soto] got before ... [in the] hope that he figures out he’s not supposed to come back here unless he does so legally.”
Viezcas-Soto asserts that the district court committed a clear error of judgment in weighing the relevant sentencing factors. Given Viezcas-Soto’s history of re*916cidivism, however, I cannot say that the district court’s choice of sentence was unreasonable. Cf United States v. Hill, 513 F.3d 894, 899 (8th Cir.2008) (holding that the district court did not abuse its discretion- by varying upward from the applicable guideline range to account for the defendant’s high risk of recidivism).
In summary, I would find that ViezcasSoto’s prior conviction for violating California’s statutory rape law qualifies as a felony and a crime of violence for purposes of the 16-level enhancement under § 2L1.2(b)(l)(A) and that his sentence is reasonable. Accordingly, I would affirm Viezcas-Soto’s 24-month sentence.11 Because the Court concludes otherwise, I respectfully dissent.
. Section 261.5(a) defines “minor” as "a person under the age of 18 years.”
. Incidentally, the Court’s approach contradicts Viezcas-Soto’s argument that "California’s label is irrelevant” and ”[w]hat matters [under § 2L1.2(b)(1)(A) ] is the maximum punishment authorized for the offense for which Viezcas-Soto was convicted.” (Appellant's Br. 10.)
. The commentary to § 2L1.2 has since been amended to clarify that the term "forcible sex offenses” includes 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.” See U.S.S.G. amend. 722.
. This survey of statutory rape laws fails to account for age-differential requirements and other circumstances that may raise or lower the pertinent age of consent. See Rodriguez-Guzman, 506 F.3d at 748 (Siler, J., concurring in part and dissenting in part) (noting that many “states which ordinarily consider 16 as the age of consent ... raise the age of consent to 18 if the [alleged perpetrator] is a parent, guardian, teacher, person in a position of authority, or [a] relative”).
. The generic definition of statutory rape is, of course, subject to change. For example, if California was left as the only state that set the age of consent at eighteen, then the "uniform” age of consent might be lowered to seventeen.
. Viezcas-Soto’s prior conviction also fits the generic definition of "sexual abuse of a minor,” another enumerated crime of violence under § 2L1.2(b)(l)(A)(ii). We have suggested that sexual abuse of a minor has at least three elements: (1) sexual conduct; (2) engaged in with a person under eighteen years old; (3) engaged in by a person who is older (but how much older?) than the victim. See United States v. Medina-Valencia, 538 F.3d 831, 834-35 (8th Cir.), cert. denied, - U.S. -, 129 S.Ct. 749, 172 L.Ed.2d 744 (2008); United States v. Montenegro-Recinos, 424 F.3d 715, 717-18 (8th Cir.2005). These elements are satisfied in this case because the charging document showed that Viezcas-Soto was convicted of engaging in sexual conduct with a person who was sixteen years old and Viezcas-Soto effectively admitted that he was twenty-eight years old at the time of the offense by failing to object to his age and date of birth identified in the PSR. See Medina-Valencia, 538 F.3d at 835.
. Any prejudice that the Government suffered is irrelevant to the present analysis because the Government failed to cross-appeal.
. With respect to the scope of the resentencing proceeding that the Court has ordered, I note that the district court is free to consider additional evidence that may conclusively resolve the question whether Viezcas-Soto's pri- or conviction for violating California’s statutory rape law qualifies as a felony. See United States v. Dunlap, 452 F.3d 747, 749-50 (8th Cir.2006) ("[WJhere a court of appeals vacates a sentence or reverses a finding related to sentencing and remands the case for resentencing without placing any limitations on the district court, the court 'can hear any relevant evidence ... that it could have heard at the first hearing.' " (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992))).