United States v. Candelario Silvestre Beltran-Munguia

489 F.3d 1042 UNITED STATES of America, Plaintiff-Appellee, v. Candelario Silvestre BELTRAN-MUNGUIA, Defendant-Appellant. No. 06-30118. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 14, 2006. Filed June 7, 2007. Kathleen Moran, Federal Defenders of Eastern Washington & Idaho, Spokane, WA, for the defendant-appellant. James A. McDevitt, Acting United States Attorney for the Eastern District of Washington, Spokane, WA; Pamela J. Byerly, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee. Before PAMELA ANN RYMER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges. OPINION BERZON, Circuit Judge: 1 Candelario Silvestre Beltran-Munguia pleaded guilty, under 8 U.S.C. § 1326 , to unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. This case presents the question whether a prior felony conviction under Oregon Revised Statute (ORS) section 163.425 for sexual abuse in the second degree qualifies as a "crime of violence" for purposes of that guideline. We hold that it does not, both because the state statute does not make force — be it…

Candelario Silvestre Beltran-Munguia pleaded guilty, under 8 U.S.C. § 1326 , to unlawful reentry into the United States. Sentences for that offense are governed by United States Sentencing Guideline § 2L1.2. This case presents the question whether a prior felony conviction under Oregon Revised Statute (ORS) section 163.425 for sexual abuse in the second degree qualifies as a “crime of violence” for purposes of that guideline. We hold that it does not, both because the state statute does not make force — be it used, attempted, or threatened — an element of the crime and because the crime does not constitute a “forcible sex offense” within the meaning of the applicable guideline. Because the district court concluded otherwise, we vacate Beltran-Munguia’s sentence and remand for resentencing.

Beltran-Munguia also contends that his sentence violates his Fifth and Sixth Amendment rights because the district judge found facts about his prior conviction that allowed him to increase his sentence beyond the two-year maximum allowed under 8 U.S.C. § 1326 (a). This argument is foreclosed by Supreme Court and Ninth Circuit precedents.

I

The base offense level for a violation of §…

concurring.

If we were writing on a clean slate, I would hold that non-consensual penetration falls within the plain meaning of “physical force.” See United States v. Ivory, 475 F.3d 1232 (11th Cir.2007).

concurring.

I am bound by precedent to concur. I write separately, however, because of the injustice resulting from our precedents. In our zeal to be good legal technicians, we are abandoning the role of common sense in fashioning appropriate punishment for repeat offenders like Beltran-Munguia. Our current case law yields a result that minimizes a crime effected by exploiting a victim’s helplessness. For purposes of a “crime of violence” enhancement, I have conceptual difficulties characterizing the “force” of physical penetration imposed on an unwilling victim as different in kind from the physical force imposed to overcome the victim’s unwillingness. From the victim’s perspective, both acts are “violent” and surely non-consensual. Nevertheless, I cannot say that the Oregon offense requires the prosecution to prove the use, attempted use, or threatened use of physical force to sustain a conviction. See United States v. Hasan, 983 F.2d 150, 151 (9th Cir.1992).

Were I writing on a clean slate, I would hold that the Oregon conviction categorically qualifies as a “crime of violence” because it is a specifically enumerated offense — namely,, a “forcible sex offense.” In my view, a…