United States v. Silvio Contreras-Martinez

MEMORANDUM

Over Contreras-Martinez’s objection, the district court enhanced by sixteen levels his sentence for attempted reentry after removal. The district court applied the enhancement because it concluded that Contreras-Martinez’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, we 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. Apr.24, 2014). Because Oregon’s statutory rape law does not include this element, it is broader than the federal definition.

The government has not shown that the use of the 16-level enhancement was harmless error. Although the district court gave Contreras-Martinez a sentence well below the sentencing guideline calculated using the 16-level enhancement, and Contreras-Martinez has been released from custody and…