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U.S. v. Acosta-Chavez

In the first of two decisions this week applying the Supreme Court’s decision in Descamps v. United States, the Ninth Circuit held that the petitioner’s conviction for aggravated criminal sexual abuse under Illinois law was not a crime of violence for purposes of an enhancement under the federal sentencing guidelines.

The petitioner was convicted under an Illinois law penalizing sexual conduct with a victim “who was at least 13 years of age but under 17 years of age” and at least five years younger than the perpetrator. In seeking an enhancement of the petitioner’s subsequent sentence for illegal reentry, the government asserted that his conviction was a crime of violence because it qualified as a “forcible sex offense”; the sentencing judge agreed.

The Ninth Circuit reversed. The court held that, even assuming sex offenses involving minors are inherently forcible, the Illinois statute under which the petitioner was convicted was not a categorical match with the generic federal definition of a “forcible sex offense” because the Illinois statute includes as minors persons up to 17 years old whereas the federal definition of a minor is someone under 16. The court next held that the age element in the Illinois statute is not divisible because it is stated as a range—“at least 13 years of age but under 17 years of age”—and not as a list of alternative elements, as required to be categorized as a divisible statute under Descamps. Having found that the statute is not divisible, the court held that it was constrained by Descamps from applying the modified categorical approach. The petitioner’s conviction therefore did not qualify as a crime of violence for purposes of the enhancement, regardless whether he did in fact commit a forcible sex offense in its generic form.