United States v. Hector Ceballos-Castillo

MEMORANDUM

Over Ceballos-Castillo’s objection, the district court enhanced by sixteen levels Ceballos-Castillo’s sentence for attempted reentry after removal. The district court applied the enhancement because it concluded that Ceballos-Castillo’s prior conviction under Oregon’s third degree rape statute, Or.Rev.Stat. § 163.355, was a categorical match for the generic federal definition of statutory rape and, therefore, a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A).

While this appeal was pending, this court clarified that the generic federal definition of “statutory rape” includes as an element a four-year age difference between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th Cir.2013), as amended United States v. Gomez, 757 F.3d 885 , 2014 WL 1623725 (9th Cir. April 24, 2014). Because Oregon’s statutory rape law does not include this element, it is broader than the federal definition. Therefore, we vacate Ceballos-Castillo’s sentence and remand for resen-tencing.

Vacated and Remanded.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.