Castro
United States v. Castro
Opinion
Opinion
Goodwin, J.
AMENDED OPINION
The opinion filed March 26, 2010, and appearing at 599 F.3d 1050 (9th Cir.2010), is ordered amended and filed herewith.
Eduardo Castro, convicted of attempted reentry into the United States after removal in violation of 8 U.S.C. § 1326 , appeals his forty-six month sentence. Castro’s sentence includes a sixteen-level increase in offense level for a prior conviction under California Penal Code section 288(c)(1), which criminalizes lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child. Cal.Penal Code § 288(c)(1). Castro argues that a conviction under section 288(c)(1) does not constitute a “crime of violence” warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(l)(A). U.S. Sentencing Guidelines Manual “U.S.S.G.” § 2L1.2(b)(l)(A) (2009). We have jurisdiction under 28 U.S.C. § 1291 . We hold that a conviction under California Penal Code section 288(c)(1) categorically does not constitute “sexual abuse of a minor” and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro’s sentence and remand for resentencing.