United States v. Fermin Tovar-Jimenez

MEMORANDUM

On appeal, Fermin Tovar-Jimenez challenges the 41-month sentence imposed by the district court following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326 . Because the parties are familiar with the facts and procedural history of this case, we repeat only those facts necessary to resolve the issues raised on appeal. We vacate and remand for resentencing.

The district court erred in applying a 16-level sentencing enhancement after concluding that Tovar-Jimenez’s prior conviction for rape of a child in the third degree in violation of Revised Code of Washington § 9A.44.079 qualified as statutory rape, and was thus a crime of violence under U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A)(ii).

Section 9A.44.079 includes as an element that the defendant had “sexual intercourse” with the victim. Wash. Rev.Code § 9A.44.079. Sexual intercourse is defined disjunctively in three ways under Washington law. Wash. Rev.Code § 9A.44.010(1). Only two of the three alternatives require penetration, whereas one requires only “sexual contact ... involving the sex organs of one person and the mouth or anus of another....” Id. The generic definition…