This Ninth Circuit criminal sentencing case is significant for its holding that divisibility must be explicit in the statute, not implied. The defendant had appealed his federal conviction under 18 U.S.C. § 2250 for traveling in interstate commerce and failing to register with the federal authorities as a sex offender. He was subject to registration because he had a previous Oregon conviction for ORS § 163.425. One of his arguments on appeal was that he should not have received an enhanced sentence as a Tier III offender because ORS § 163.425 is broader than the Tier III generic offense and it is not divisible. The court agreed.
Tier III defines "sexual abuse" as a sexual act accomplished by means of certain types of threat or fear or with a victim who is mentally or physically incapable of consenting. It does not include non-consent due merely to the victim being under the age of consent. A conviction under ORS § 163.425, on the other hand, requires only a sexual act with a person who does not consent. The statute does not specify the types of non-consent that would qualify, but, according to the Oregon Supreme Court, it includes at least actual non-consent and legal incapacity to consent, such as being under the age of 18, mental incapacitation, etc.
The government conceded that ORS § 163.425 is overbroad, but argued it is divisible pursuant to the Supreme Court's decision in Descamps. It argued the court therefore could look to the conviction documents under the modified categorical approach to find a match to the Tier III definition. It asserted § 163.425 is divisible because Oregon also has a definitional statute at § 163.315, which lists persons who are legally incapable of consenting to sex, including minors, mental defectives, mental incapacitated persons, and physically helpless persons. The Oregon conviction documents included the defendant's guilty plea statement that he had sex with a girl who was legally incapable of consenting because she was intoxicated and 15 years old. Non-consent due to intoxication would meet the Tier III definition, so the government argued the enhanced sentence was proper.
The majority of the panel rejected the government's argument and found ORS § 163.425 is not divisible because it does not explicitly list the alternative types of non-consent. It held the definitional statute at § 163.315 did not make § 163.425 divisible because § 163.425 does not reference § 163.315 or even use the same terminology (§ 163.425 requires non-consent, while § 163.315 defines legal incapacity to consent). In other words, § 163.425 defines non-consent broadly to include all types of non-consent and § 163.315 defines only a sub-group of non-consent--legal incapacity. Since § 163.315 does not provide an exclusive list of alternative elements for § 163.425, it does not make § 163.425 divisible into those elements for purposes of the modified categorical approach.
Judge Callahan partially dissented, finding that ORS § 163.425 is divisible. She noted the Oregon Supreme Court had recognized § 163.425 covers two types of non-consent: actual non-consent and legal incapacity, as defined by § 163.315. She maintained that this (implicitly) made the offense divisible into the alternative elements of: actual non-consent, minority, mental incapacitation, helplessness, etc. Since the defendant's guilty plea thus admitted the "element" of intoxication under this logic, the conviction would satisfy the federal definition under the modified categorical approach.
The majority rejected Judge Callahan's approach because it would be a partial return to the means-based analysis of Aguila-Montes de Oca that the Supreme Court repudiated in Descamps. It held the element was "non-consent" and the "means" were actual non-consent, minority, mental incapacitation, and perhaps others, since § 163.425 did not explicitly define a limited universe of modes of commission. I.e., it is the explicit, limited universe that transforms a means into an element, and that was not present here.