Cabrera-Gutierrez

concurring and dissenting:

I agree with my brethren that Congress had the authority to enact the Sex Offender Registration and Notification Act (“SORNA”) and that SORNA’s application to Pedro Cabrera-Gutierrez (“Cabrera”) is constitutional. We part' company, however, in our reading of the Supreme Court’s opinion in Descamps v. United States, — U.S.-, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013), and its application to Cabrera’s state conviction. Because I read the relevant Oregon statutes to be “divisible” as that term is defined by the Supreme Court in Descamps , I would affirm Cabrera’s conviction and his sentence as a Tier III sex offender.

I

The federal statute that concerns Cabrera’s situation is 42 U.S.C. § 16911 (4) which defines a “tier III sex offender” as “a sex offender whose offense is punishable by imprisonment for more than 1 year and ... is comparable to or more severe than ... aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18).” 1 Section 2242 defines the crime of sexual abuse to include knowingly engaging “in a sexual act with another person if that other person is — (A) incapable of appraising the nature of the conduct; or…

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

ORDER

Defendanh-Appellant’s petition for panel rehearing is granted. The Opinion, filed June 3, 2013, and reported at 718 F.3d 873 , is withdrawn and replaced by the Amended Opinion and concurring and dissenting opinion filed concurrently with this Order. The petition for rehearing en banc is denied as moot. Further petitions for panel rehearing and/or rehearing en banc may be filed with respect to the Amended Opinion.

OPINION

Our original Opinion was filed on June 3, 2013. See United States v. Cabrera-Gutierrez, 718 F.3d 873 (9th Cir.2013). Shortly thereafter, on June 20, 2013, the Supreme Court decided Descamps v. United States, — U.S. -, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013), which worked a substantial change in sentencing law. We therefore granted the petition for panel rehearing and withdrew our Opinion. We now affirm the conviction, but vacate the sentence and remand for resentencing.

Pedro Cabrera-Gutierrez (“Cabrera”) appeals his conviction and sentence for failing to register under the Sex Offender Registration and Notification Act (“SOR-NA”). On appeal he advances two arguments.…