WASHINGTON — A federal appeals court ordered a new sentencing Friday for an illegal Guatemalan immigrant, saying a lower court incorrectly classified the man’s earlier attempted rape conviction as a “crime of violence.”
A three-judge panel of the 9th U.S. Circuit Court of Appeals said Alvaro Gonzalez-Monterroso’s conviction of attempted fourth-degree rape was not a crime of violence under federal sentencing guidelines, and thus should not have led to a 16-level enhancement in his sentence.
Gonzalez, who pleaded guilty after he was caught illegally re-entering the U.S. in 2010, was subsequently sentenced to 51 months in prison in 2011. The appeals court reversed that sentence and ordered him back to U.S. District Court for a new sentencing.
A spokesman for the U.S. Attorney’s Office in Phoenix said the office would not comment on the decision, which it was still reviewing Friday. A call to Gonzalez’s attorney, Roger Sigal, was not immediately returned Friday.
Gonzalez first illegally entered the U.S. about 15 years ago, according to the opinion, and settled in Delaware where he lived for almost a decade.
Gonzalez was living there when he was convicted of attempted fourth-degree rape of a 14-year-old girl. Gonzalez, who was 28 at the time, was driving the girl home from church when pulled over “began rubbing on her thigh, tried to kiss her and asked her to have sex with him,” the court said.
He was convicted in early 2010 and deported, but was back in the U.S. after only “several months.” He was arrested in Arizona on July 26, 2010, and charged with one count of illegal re-entry.
Gonzalez pleaded guilty in 2011 to illegal re-entry, which called for sentencing guidelines at level 8. But a presentence report said the Delaware crime was a “sexual abuse of a minor,” which is considered a violent crime. That called for a 16-level increase in the sentencing guidelines, to a sentence ranging from 51 to 63 months.
Gonzalez argued that he was only convicted of an “attempt” crime on the state level, which – compared to the generic federal attempt offense – did not qualify his conviction as crime of violence.
The court agreed. Judge Sandra Ikuta, writing for the appeals panel, said that Delaware’s definition of an attempt “criminalized more conduct than the federal generic attempt offense.” Because of that, she wrote, Gonzalez’s attempt crime did not qualify as a crime of violence and justified a resentencing.
“Whatever the underlying facts of the evidence presented, Gonzalez still would not have been convicted of an offense with the same elements as an attempt crime of violence,” Ikuta wrote. “His sentence was procedurally and substantively unreasonable.”
In a concurring opinion, Judge J. Clifford Wallace said the panel did not even need to go that far, since the underlying crime Gonzalez was convicted of attempting did not meet the definition of a crime of violence.
“There is nothing in the record … to indicate that Gonzalez actually compelled his victim. The government has instead consistently argued his crime was a forcible sex offense solely because of the victim’s age,” he wrote. “Gonzalez was not convicted of a generic ‘forcible sex offense.'”
- 6 energy saving hacks for your home
- 5 tips for choosing a company to end your timeshare
- Water tips to save money, help save the Earth
- 5 of the most adored gentlemen in professional sports today
- The real danger of sitting at your desk
- Most surprising NBA playoff performances of the last 40 years
- 11 classic baseball movies you must see again
- Finally getting rid of fat: 3 methods that actually work
- 4 reasons cancer survivors should focus on food
- 5 spring cleaning spots everyone forgets
- 5 reasons to look forward to watching the D-backs this season
- Common virus attributed to spike in head and neck cancers
- 5 signs it’s time to end your timeshare ownership
- 3 most overlooked ways to keep your home healthy
- 6 ways the air in your home could be making you sick
- CrossFit dangers: 5 common injuries and how to deal with them
- Today's radiation treatments offer better success, fewer side effects
- Tips to make watching TV on the patio even better
- What really happens when you donate to a community college?
- Sun and skin cancer: Separating fact from fiction
- 5 critical lifestyle changes for a healthy colon
- What you need to know about Alzheimer's disease in Arizona
- Spring clean your windows like a pro with these 8 tips
- 7 films that should have won best-picture Oscars
- New plumbing technology saves money and improves your home
- Survey shows Arizona CFOs optimistic about 2016
- How chronic pain can affect your love life
- 5 potential warning signs about your child's development