Opinion
No. 11-10579 D.C. No. 4:11-cr-01097-DCB-GEE-1
01-24-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN DAVID RIVERA-REYES, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted January 14, 2014
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District Judge.
The Honorable Raymond J. Dearie, Senior United States District Judge for the Eastern District of New York, sitting by designation.
Juan David Rivera-Reyes appeals his sentence following a plea of guilty to a violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Reviewing de novo, United States v. Johnson, 581 F.3d 994, 1001 (9th Cir. 2009), we vacate and remand for resentencing.
1. The district court improperly imposed a sixteen-level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2 based on Rivera-Reyes's conviction of Nebraska Revised Statutes section 28-319(1)(c), which does not require as an element a four-year age differential. Therefore, for purposes of section 2L1.2, Nebraska Revised Statutes section 28-319(1)(c) does not categorically qualify as a forcible sex offense, statutory rape, sexual abuse of a minor, or otherwise as a crime of violence. See Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Caceres-Olla, No. 12-10132, -- F.3d --, 2013 WL 6847127, at *5 (9th Cir. Dec. 23, 2013); United States v. Gomez, 732 F.3d 971, 989 n.18 (9th Cir. 2013) ("[T]he generic definition of 'statutory rape' does . . . include the element of a four-year age differential."); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008) (en banc). The district court's error was not harmless. See Gomez, 732 F.3d at 990.
Because the parties agree that Rivera-Reyes was convicted of subsection (c) of Nebraska Revised Statutes section 28-319(1), we need not conduct a modified categorical analysis. See Descamps v. United States, -- U.S. --, 133 S. Ct. 2276 (2013).
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2. In light of the November 2013 amendment to U.S.S.G. § 3E1.1, and because the government declined to move for a third-level reduction based on Rivera-Reyes's failure to waive his right to appeal, the government concedes that Rivera-Reyes must be resentenced with respect to his acceptance of responsibility.
VACATED and REMANDED.