United States v. Argimiro Solano

MEMORANDUM

Defendant Argimiro Solano appeals his conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326 . On appeal, he challenges the district court’s denial of his motion to dismiss his indictment. We have jurisdiction under 28 U.S.C. § 1291 .

We have previously held that unlawful sexual penetration under section 289(a)(1) of the California Penal Code is a crime of violence for purposes of 18 U.S.C. § 16 (b) because it “is precisely the type of felony that by its nature” raises “a substantial risk that physical force will be used during the course of the crime.” United States v. Sandoval-Orellana, 714 F.3d 1174, 1179 (9th Cir.2013) (internal quotation marks omitted). Because section 289(a)(1) is identical in material respects to section 261(a)(2), that conclusion applies here as well, and we hold that Solano’s prior rape conviction under section 261(a)(2) of the California Penal Code constitutes a “crime of violence” as defined by § 16(b).

Because the crime of rape under section 261(a)(2) is a crime of violence for purposes of § 16(b), it meets the definition of “aggravated felony” under 8 U.S.C. § 1101 (a)(43). Accordingly, Solano’s collateral…