United States v. Javier Morales-Landa

MEMORANDUM **

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 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, - *475 U.S. - — , 133 S.Ct. 2276, 2281 , 186 L.Ed.2d 438 (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…

Concurring.

Because we are bound by our prior opinion in Rendon v. Holder, 764 F.3d 1077 (9th Cir.2014), I concur.

NOT FOR PUBLICATION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-

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…