United States v. Diaz-Turcios

SUMMARY ORDER Defendant Jose de Jesus Diaz-Turcios stands convicted after. a guilty plea of reentering the United States without consent of the Attorney General after removal, see 8 U.S.C. § 1326(a), (b)(2), and failing to register as a sex offender, see 18 U.S.C. § 2250. On appeal, he challenges the application of a sixteen-level U.S.S.G. § 2L1.2(b)(l)(A) sentencing enhancement for his second-degree rape conviction. See N.Y. Penal Law § 130.30(1) (providing that person is guilty of second-degree rape when, being at least eighteen years old, he or she engages in sexual intercourse with person less than fifteen years old); U.S.S.G. § 2L1.2(b)(l)(A) (providing for sixteen-level enhancement if defendant was previously deported after being convicted of felony that constitutes “crime of violence”); id. § 2L1.2 n. l(B)(iii) (defining crime of violence as, among other offenses, “statutory rape”). Specifically, he argues that the district court failed to employ a categorical approach to determine if the elements of that crime “are the same as, or narrower than, those of the generic offense” of statutory rape. Descamps v. United States, —U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). As an initial matter, we note that, at sentencing, Diaz-Turcios did not object to the applicability of a § 2L1.2(b)(l)(A) enhancement or raise the argument he here advances, i.e., that N.Y. Penal Law § 130.30(1) is broader than the generic definition of statutory rape because it does not include an element requiring a four-year age difference between the defendant and victim. 1 In fact, Diaz-Turcios effectively conceded before the district court that his second-degree rape conviction constituted statutory rape for purposes of the § 2L1.2(b)(l)(A) enhancement. See Appellant App’x 27 (describing prior crime as “statutory rape”). His concession is hardly surprising given that the underlying facts of his conviction indicate that he was some sixteen years older than his victim. The government does not urge us to view this conduct as a true waiver of Diaz-Turcios’s challenge on appeal, and thus we need not pursue that point here. See United States v. Spruill, 808 F.3d 585, 596, 599 (2d Cir.2015) (explaining that court lacks discretion to correct waived errors, and concluding that defendant waived challenge to inquiry and removal of juror where counsel “actively engaged in the matter and agreed to every action taken by the district court”). Nevertheless, *28 Diaz-Turcios’s failure to raise a § 2L1.2(b)(l)(A) challenge in the district court means we review only for plain error, which is not present here. See United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (explaining that plain error requires showing of (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) calling into question fairness, integrity, or public reputation of judicial proceedings); United States v. Gamez, 577 F.3d 394, 397 (2d Cir.2009). Even if Diaz-Turcios could show error, his argument fails at the second step of analysis because this court has never held that N.Y. Penal Law § 130.30 is not categorically statutory rape. Nor have we held that a four-year age gap is a requisite element of the generic offense of statutory rape — an issue on which our sister circuits are split. Compare United States v. Gomez, 757 F.3d 885, 906 (9th Cir.2014) (concluding that four-year age difference is element of generic statutory rape), with United States v. Gomez, 628 Fed.Appx. 400, 407 (6th Cir.2015) (explaining that “there is ho general consensus among courts about the generic elements of statutory rape,” and identifying “flaws” in Ninth Circuit’s definition in Gomez), and United States v. Rodriguez, 711 F.3d 541, 561 (5th Cir.2013) (defining generic meaning of statutory rape as sexual intercourse with a person below statutory age of consent, without age-differential requirement). Thus, no binding precedent compels the conclusion that a § 2L1.2(b)(l)(A) enhancement is inapplicable to § 130.30 convictions because that offense is broader than the generic offense of statutory rape. See United States v. Whab, 355 F.3d 155, 158 (2d Cir.2004) (holding that, in absence of binding precedent, “genuine dispute among the other circuits” precludes conclusion that any error is “plain”); see also United States v. Gamez, 577 F.3d at 400 (explaining that we will not identify plain error where “operative legal question is unsettled” (internal quotation marks omitted)); cf. United States v. Folkes, 622 F.3d 152, 158 (2d Cir.2010) (identifying plain error in district court’s conclusion that U.S.S.G. § 2L1.2(b) erime-of-violence enhancement applied for convictions under N.Y. Penal Law §§ 140.20 and 265.02(4) where prior Second Circuit cases rendered it “obvious that neither [conviction] could qualify as a crime of violence for purposes of sentencing under” § 2L1.2(b)). We therefore identify no plain error in the district court’s conclusion that Diaz-Turcios’s prior conviction warranted a sixteen-level U.S.S.G. § 2L1.2(b)(l)(A) statutory-rape enhancement because that ruling was not “contrary to law that was clearly established” either at the time of sentencing or at the time of appeal. United States v. Irving, 554. F.3d 64, 78 (2d Cir.2009). 2 Insofar as Diaz-Turcios characterizes the district court’s error as applying the sentencing enhancement based on the facts of his prior conviction, rather than the elements of § 130.30, we see no such error on our review of the transcript. We have considered Diaz-Turcios’s remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the district court’s judgment. Footnotes [1] N.Y. Penal Law § 130.30(1) requires a three-year difference as an element and provides an affirmative defense if the age difference is less than four years. [2] United States v. Banos-Mejia, 588 Fed.Appx. 522 (9th Cir.2014), on which Diaz-Turcios relies, warrants no different conclusion be-cause it is not binding precedent in this circuit.