United States of America v. Hector Ceballos-Castillo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR CEBALLOS-CASTILLO,
Defendant - Appellant.
No. 13-50407
D.C. No. 3:13-cr-01821-W-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Submitted June 6, 2014**
Pasadena, California
Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.***
Over Ceballos-Castillo’s objection, the district court enhanced by sixteen
levels Ceballos-Castillo’s sentence for attempted reentry after removal. The
FILED
JUN 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.

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district court applied the enhancement because it concluded that Ceballos-
Castillo’s prior conviction under Oregon’s third degree rape statute, Or. Rev. Stat.
§ 163.355, was a categorical match for the generic federal definition of statutory
rape and, therefore, a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A).
While this appeal was pending, this court clarified that the generic federal
definition of “statutory rape” includes as an element a four-year age difference
between the victim and the defendant. United States v. Gomez, 732 F.3d 971 (9th
Cir. 2013), as amended United States v. Gomez, -- F.3d --, 2014 WL 1623725 (9th
Cir. April 24, 2014). Because Oregon’s statutory rape law does not include this
element, it is broader than the federal definition. Therefore, we vacate Ceballos-
Castillo’s sentence and remand for resentencing.
Vacated and Remanded.
2

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