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Ninth Circuit: Statutory Rape is a 'Crime of Violence'

By Robyn Hagan Cain | Last updated on

Mens rea doesn’t necessarily factor into a court’s “crime of violence” analysis when applying a Sentencing Guidelines enhancement.

In 2003, Raul Zamorano-Ponce pleaded guilty in state court to “rape of a child in the third degree,” a Washington statutory rape violation. The state court sentenced him to a 12-month term of imprisonment. After serving just over half of the sentence, he was released from prison and removed from the U.S.

In 2011, U.S. Border Patrol apprehended Zamorano-Ponce a few miles from the United States-Mexico border, near Lukeville, Arizona. He admitted to being a Mexican citizen without documentation to establish legal presence in the United States.

A federal grand jury indicted Zamorano-Ponce for reentry after removal. He pleaded guilty pursuant to a written plea agreement. The main issue at sentencing was whether the court should apply a 16-level enhancement for a prior "crime of violence."

The Presentence Investigation Report and the government recommended that the court apply the enhancement because Zamorano-Ponce's prior conviction qualified categorically as a "crime of violence" that fell squarely within the generic federal definition of "statutory rape." Zamorano-Ponce objected to the enhancement, arguing, among other things, that the statute was broader than the federal definition because it does not require a mens rea of "knowingly."

The district court agreed that Zamorano-Ponce's Washington conviction qualified categorically as a crime of violence, applied the enhancement, and sentenced him to 33 months' imprisonment.

He appealed.

The Ninth Circuit Court of Appeals affirmed Zamorano-Ponce's conviction and sentence last week, noting that he had misinterpreted the court's 2008 decision in Estrada-Espinoza v. Mukasey when he argued that the federal generic definition of "statutory rape" includes a mens rea element of "knowingly."

The appellate court noted the Estrada-Espinoza defined the term "sexual abuse of a minor" for the purpose of considering whether a prior conviction constituted an "aggravated felony" under the Immigration and Nationality Act. Nothing in the decision purported to require that "statutory rape," within the meaning of the commentary to the Guidelines, contain a mens rea element.

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