Toledo-Castillo

MEMORANDUM ***

Marcos Williams Toledo-Castillo argues that his conviction under California Penal Code § 261.5(a) for unlawful sexual intercourse with a minor is not an “aggravated felony.” 1 8 U.S.C. § 1101 (a)(43) defines an aggravated felony offense to include “sexual abuse of a minor.” In US v. Baron-Medina, we concluded that a conviction under Cal.Penal Code § 288(a), which prohibits lewd or lascivious acts on children under age 14, qualified as “sexual abuse of a minor” and, hence, an “aggravated felony” within the meaning of the INA. 2 We interpreted the undefined term “sexual abuse of a minor” by employing the ordinary, contemporary, and common meaning of the words that Congress used, and then determining whether or not Section 288(a) fell within it.

The elements of a Section 261.5 offense are: (1) a person 21 years of age or older; (2) engaged in an act of sexual intercourse; (3) with a person under the age of 16; and (4) these persons were not married to each other at the time of the act of sexual intercourse. 4 The conduct reached by Section 261.5 indisputably falls within the common, everyday meanings of the words “sexual” and “minor.” Toledo-Castillo’s act…