NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 22 2015

MOLLY C. DWYER, CLERK

UNITED STATES OF AMERICA, No. 14-50460 U.S. COURT OF APPEALS

Plaintiff-Appellee, D.C. No. 3:13-cr-04313-BTM-GT-1

v.

MEMORANDUM*

JAVIER MORALES-LANDA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted June 5, 2015 Pasadena, California

Before: KOZINSKI and CALLAHAN, Circuit Judges, and KORMAN, Senior District Judge.**

The sole issue before us is whether the district court properly applied the

modified categorical approach to the intent element of the crime of sexual abuse of a

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation.

1 child, defined in Utah Code § 76-5-404.1(2), for the purpose of determining whether

the defendant had committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).

Because the statute criminalizes non-sexual conduct—such as kicking a boy’s

genitals—the statute is broader than generic sexual abuse of a minor. See United

States v. Tafoya-Montelongo, 659 F.3d 738, 743 (9th Cir. 2011). Thus, the district

court correctly recognized that Morales’s conviction did not categorically qualify as

an aggravated felony. The court then applied the modified categorical approach

because it erroneously found Utah’s statute to be divisible. A statute is only divisible

if it “sets out one or more elements of the offense in the alternative” instead of listing

multiple means of achieving the same element. Descamps v. United States, 133 S. Ct.

2276, 2281 (2013). In determining if a statute is divisible, we look to how the state

treats the statute. Rendon v. Holder, 764 F.3d 1077, 1088 (9th Cir. 2014).

The Utah Court of Appeals appears to treat the two prongs of the intent element

as alternative means of satisfying a single intent element. See, e.g., State v. Bair, 275

P.3d 1050, 1071–72 (Utah Ct. App. 2012). Thus, a jury does not need to agree on

whether a defendant had an intent to harm or an intent to arouse his sexual desire to

render a guilty verdict. This conclusion is bolstered by the charging information in

this case, which listed both prongs of the intent element.

2 Given that the intent element in Utah Code § 76-5-404.1(2) is not divisible, the

statute is not amenable to the modified categorical approach. Defendant has

“show[n] that the crime of which he was previously convicted was not . . . an

aggravated felony,” and has thus established that the entry of his removal order was

fundamentally unfair. United States v. Martinez, No. 12-30185, slip op. at 5 (9th Cir.

May 28, 2015). Because the two remaining prongs of 8 U.S.C. § 1326(d) were

uncontested, the district court’s denial of defendant’s motion to dismiss his indictment

for illegal reentry is REVERSED. The Clerk is directed to issue the mandate

forthwith. As the defendant only has two months to serve on his 24-month sentence,

the defendant is to be released immediately from incarceration. The foregoing does

not affect the validity of any immigration detainer that may be lodged.

REVERSED. MANDATE ISSUE FORTHWITH.

3

FILED

United States v. Javier Morales-Landa, 14-50460

JUN 22 2015

CALLAHAN, Circuit Judge, Concurring

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Because we are bound by our prior opinion in Rendon v. Holder, 764 F.3d 1077

(9th Cir. 2014), I concur.

1