United States v. David Lopez-Montanez

This case presents the question of whether a prior felony conviction under California’s sexual battery statute, Cal.Penal Code, § 243.4(a), constitutes a “crime of violence” under the federal Sentencing Guidelines’ provision governing sentences for unlawful reentry into the United States, U.S.S.G. § 2L1.2. The district court found that a conviction under the California statute was a “forcible sex offense” and thus a “crime of violence” for purposes of § 2L1.2. We disagree, and hold that a conviction under the California sexual battery statute is not a categorical crime of violence under § 2L1.2(b)(l)(A). Applying this circuit’s modified categorical approach, we also hold that the government did not adequately prove that the appellant’s California conviction in fact qualified as a crime of violence. Accordingly, we reverse the district court’s judgment, vacate the sentence and remand for resentencing.

I.

In February 2004, a jury found the appellant, David Lopez-Montanez, guilty of illegally reentering the United States after having been previously removed, a violation of 8 U.S.C. § 1326 . Prior to sentencing, Lopez-Montanez filed objections to the Presentence Report (“PSR”).…