Argued and Submitted June 13, 2013 —San Francisco, California
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding D.C. No. 4:11-cr-04125-CKJ-DTF-1
David W. Basham, Law Office of David W. Basham, Tucson, Arizona, for Defendant-Appellant.
Erica L. Seger, Assistant United States Attorney, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.
Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and Kimba M. Wood, Senior District Judge. [*]
The panel vacated a sentence and remanded for resentencing in a case in which the district court applied a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the defendant's prior Illinois conviction for Aggravated Criminal Sexual Abuse.
The panel held that because the Illinois statute's definition of a minor is broader than that contained in its generic federal analogue, a violation of 720 Ill. Comp. Stat. 5/11-0.1 cannot qualify under the categorical approach as a "forcible sex offense" supporting a crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). Applying Descamps v. United States, 133 S.Ct. .2276 (2013), the panel held that because the age element in the Illinois statute is not divisible, the panel may not apply the modified categorical approach.
The panel held that the error was not harmless, and declined to remand the case to a different judge for resentencing.
Wood Senior District Judge
Facundo Acosta-Chavez appeals his thirty-month sentence of imprisonment for illegal reentry after deportation. Acosta-Chavez contends that the district court erred in deeming his 2005 Illinois conviction for Aggravated Criminal Sexual Abuse a "crime of violence" under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii), which mandates a sixteen-level enhancement of his Sentencing Guidelines level. Acosta-Chavez contends that the alleged error was not harmless. He also seeks remand to a different district judge for resentencing.
Applying the Supreme Court's recent decision in Descamps v. United States, 133 S.Ct. 2276 (2013), we conclude that the district court erred in holding Acosta-Chavez's crime to be a "crime of violence, " an error that resulted from the district court's application of the modified categorical approach when it compared the elements of Acosta-Chavez's offense with the elements of its federal analogue. This error was not harmless. We vacate Acosta-Chavez's sentence, and remand to the original district judge for resentencing.
Following his 2005 guilty plea to Illinois Aggravated Criminal Sexual Abuse, Acosta-Chavez was removed from the country. He reentered illegally in 2011 and was arrested in Arizona. On December 14, 2011, Acosta-Chavez was indicted for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). On March 28, 2012, he pled guilty without a plea agreement.
At sentencing, the district court calculated the applicable United States Sentencing Guidelines ("Guidelines") range to be forty-six to fifty-seven months. The court based this determination on its conclusion that Acosta-Chavez's 2005 Illinois conviction qualified as a "crime of violence, " resulting in a sixteen-level enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The court held, however, that despite the seriousness of Acosta-Chavez's 2005 Illinois conviction, the forty-six to fifty-seven month Guidelines range "overstate[d] the nature of that particular conviction, " making a below-Guidelines sentence ...