United States v. Ruben Baza-Martinez, AKA Ruben Baza-Martines, Ruben Baza Martinex

481 F.3d 690 UNITED STATES of America, Plaintiff-Appellee, v. Ruben BAZA-MARTINEZ, aka Ruben Baza-Martines, Ruben Baza Martinex, Defendant-Appellant. No. 05-10282. United States Court of Appeals, Ninth Circuit. March 6, 2007. Elizabeth R. Berenguer, Esq., USTU — Office of the U.S. Attorney Evo A. Deconcini U.S. Courthouse, Tucson, AZ, for Plaintiff-Appellee. Brian I. Rademacher, Esq., Michaela Portillo, Esq., Fpdaz — Federal Public Defender's Office, Tucson, AZ, for Defendant-Appellant. Before BETTY B. FLETCHER, ROBERT R. BEEZER, and RAYMOND C. FISHER, Circuit Judges. ORDER 1 The panel has voted to deny the petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc and Judges B. Fletcher and Beezer so recommend. 2 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. 3 The petition for panel rehearing and the petition for rehearing en banc are denied. 4 GRABER, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, GOULD, TALLMAN,…

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc and Judges B. Fletcher and Beezer so recommend.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

with whom

I respectfully dissent from the court’s decision not to rehear this case en banc. The test that the panel adopted in order to decide whether a crime constitutes “sexual abuse of a minor” fails to apply Supreme Court precedent and directly contradicts the law of this circuit. By applying an incorrect test, the panel also reached a conclusion contrary to the holdings of other circuits that have addressed the same issue applied to the very same North Carolina criminal statute.

Defendant Baza-Martinez was convicted of a felony under North Carolina General Statute § 14-202.1, which criminalizes “taking indecent liberties with children.” In determining whether this conviction categorically constituted “sexual abuse of a minor” under U.S.S.G. § 2L1.2(b)(l)(A), application note l(B)(iii), the panel stated that “the Ninth Circuit’s definition of ‘sexual abuse of a minor,’ ... requires psychological or physical injury to the victim.” United States v. Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir.2006). The panel contrasted that victim-centered requirement with the focus of the North Carolina statute on the perpetrator’s mens rea. Id. at 1016 . The panel relied in particular on…