United States v. Alfredo Lopez-Solis, AKA Alfredo Lopez

Appellant Alfredo Lopez-Solis, a citizen of Mexico, was indicted for entering the United States illegally in violation of 8 U.S.C. § 1326 , with a sentencing enhancement pursuant to 8 U.S.C. § 1326 (b)(2). The sentencing court subjected him to a sixteen-level sentencing enhancement under § 2L1.2 of the United States Sentencing Guidelines (“USSG”) based on his prior conviction for statutory rape, a conviction the court deemed “sexual abuse of a minor,” a “crime of violence” under the guideline. 1 On appeal, Lopez-Solis argues that his conviction for statutory rape was not for “sexual abuse of a minor,” and therefore not a “crime of violence.” For *1204 the reasons discussed below, we agree. Accordingly, we vacate Lopez-Solis’s sentence and remand to the district court for resentencing.

BACKGROUND

In August 2002, a grand jury indicted Lopez-Solis for illegal entry into the United States after deportation, in violation of 8 U.S.C. § 1326 , with an enhancement pursuant to 8 U.S.C. § 1326 (b)(2) because of his 2001 conviction for statutory rape under title 39, chapter 13, section 506 of the Tennessee Code (“section 39-13-506”). 2 Section 39-13-506 criminalizes sexual penetration of a…

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…

447 F.3d 1201 UNITED STATES of America, Plaintiff-Appellee, v. Alfredo LOPEZ-SOLIS, aka Alfredo Lopez, Defendant-Appellant. No. 03-10059. United States Court of Appeals, Ninth Circuit. Argued March 11, 2004. Submitted May 12, 2006. Filed May 19, 2006. COPYRIGHT MATERIAL OMITTED Alfred Islas, Tucson, AZ, for the defendant-appellant. Paul K. Charlton, United States Attorney, Christina Cabanillas, Deputy Chief, Appellate Section, and Jeffrey H. Jacobson, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-02-01265-RCC. Before THOMAS G. NELSON, SUSAN P. GRABER, and WILLIAM A. FLETCHER, Circuit Judges. T.G. NELSON, Circuit Judge. 1 Appellant Alfredo Lopez-Solis, a citizen of Mexico, was indicted for entering the United States illegally in violation of 8 U.S.C. § 1326 , with a sentencing enhancement pursuant to 8 U.S.C. § 1326 (b)(2). The sentencing court subjected him to a sixteen-level sentencing enhancement under § 2L1.2 of the United States Sentencing Guidelines ("USSG") based on his prior conviction for statutory…