dissenting:

I respectfully dissent.

Our task in this case is to interpret United States Sentencing Guideline § 2L1.2. In United States v. Asberry, 394 F.3d 712, 716 (9th Cir.), cert. denied, — U.S.-, 126 S.Ct. 198 , 163 L.Ed.2d 187 (2005), we held that the 2003 amendment to Guideline § 2L1.2 “to list specifically ‘forcible sex offenses, statutory rape,[and] sexual abuse of a minor’ ” as three separate kinds of “crimes of violence” was a “merely” clarifying amendment. (Alteration in original.) That holding accords with the Sentencing Commission’s own interpretation of its 2003 amendment. See U.S. Sentencing Guidelines Manual app. C, amend. 658, Reason for Amendment 401-02 (2003) (noting that the 2003 amendment “clarifies the meaning of the term ‘crime of violence’ ” and that the enumerated offenses, including statutory rape and sexual abuse of a minor, “are always classified as ‘crimes of violence,’ regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another”). We are bound by that interpretation because “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative” except in certain situations that do not apply here. Stinson v. United States, 508 U.S. 36, 38 , 113 S.Ct. 1913 , 123 L.Ed.2d 598 (1993).

A clarifying amendment is to be applied retroactively where, as here, the sentencing took place before the clarifying amendment was made. United States v. Garcia-Cruz, 40 F.3d 986, 990 (9th Cir.1994). Accordingly, the majority’s careful attention to what type of sexual contact with a minor constituted sexual “abuse” of the minor under the former Guidelines is, in my view, beside the point. The question we should be 5505 answering is what constitutes “statutory rape,” which is an independently sufficient kind of crime of violence under the Guidelines. See Valencia v. Gonzales, 439 F.3d 1046, 1053 (9th Cir.2006) (distinguishing Asberry on the ground that “the Commentary to section 2L1.2 of the Guidelines lists statutory rape as per se a crime of violence”).

The majority contends that we cannot apply the 2003 Sentencing Guidelines to Petitioner because an ex post facto violation would result. I disagree. A clarifying amendment, by definition, creates no new law, but instead merely explains an already existing guideline. See United States v. Chea, 231 F.3d 531, 539 (9th Cir.2000) (noting that there is no ex post *1212 facto violation if an amendment to the Guidelines merely clarifies its substance). As we held in Asberry , and as the Sentencing Commission made clear in 2003, statutory rape and sexual abuse of a minor always fell within the general classification of a “crime of violence,” so any cases holding to the contrary were erroneous interpretations of the Guidelines.

The majority’s reliance on United States v. Alfaro, 336 F.3d 876, 883 (9th Cir.2003), is misplaced because Alfaro involved a substantive amendment to the Sentencing Guidelines. We have held, however, that the 2003 amendment that we consider here was “clarifying” because the Commission was just explaining its meaning in more detail. Asberry, 394 F.3d at 716 . Indeed, the Alfaro court reaffirmed that a clarifying amendment — like this one — applies retroactively without resulting in an ex post facto violation. 336 F.3d at 883 .

Tennessee Code Annotated section 39-13-506(a) defines the crime of “statutory rape,” which is a felony, as “sexual penetration of a victim by the defendant ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four (4) years older than the victim.” Were it to matter whether that felony categorically poses potential risks of physical injury, pregnancy, sexually transmitted disease, or psychological harm, I would hold that it does, notwithstanding the generous definition of “sexual penetration” in Tennessee Code Annotated section 39-13-501(7). In part those potential harms arise from the statutorily required minimum age difference between the defendant and the victim.

As the majority properly notes, Defendant Alfredo Lopez-Solis pleaded guilty in Tennessee to the felony of “statutory rape.” The Guidelines require no more to demonstrate that he stands convicted of a “crime of violence.”

Additionally, even if we had to reach the modified categorical approach, the majority’s interpretation of the judgment of conviction is incomplete whether “sexual abuse of a minor” or “statutory rape” is the appropriate category to consider. On its face the judgment shows that the indictment charged the Class B felony of “rape,” but that Defendant instead pleaded guilty to “statutory rape,” a Class E felony. In Tennessee, the Class B felony of “rape” requires the “unlawful sexual penetration of a victim by the defendant” to be accompanied by “[floree or coercion ... to accomplish the act,” or a known lack of consent, or mental or physical incapacity, or fraud. Tenn.Code Ann. § 39-13-503; see Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1077 (9th Cir.2006) (concluding that “all felony rape — whatever the methodology of the offender — appears to us to fall above the line that might separate aggravated from non-aggravated rape felonies-— if there is such a thing”). From the judgment we know, at a minimum, that the potential for violence or harm to the victim actually was present, in the eyes of a Tennessee grand jury. Accordingly, I would affirm the sentence.