17 Year-Old not a "Minor" for Purposes of Generic "Sexual Abuse of a Minor" & How Specific Must COV Objection Be to Avoid Plain Error Review?

United States v. Munoz-Ortenza, No. 07-51344 (5th Cir. Mar. 18, 2009) (Davis, Clement, Elrod)

Recall that in United States v. Lopez-DeLeon the Fifth Circuit held that California's statutory rape provision---which sets the age of consent at eighteeen---is broader than generic "statutory rape," an enumerated COV for purposes of guideline §2L1.2's 16-level enhancement. Why? Because 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code set the age of consent at sixteen.

Okay, change the facts a little bit. This time the prior offense is oral copulation of a minor, in violation of Cal. Penal Code § 288a(b)(1). Like California statutory rape, it also criminalizes certain sexual acts with anyone under age eighteen. Is it "sexual abuse of a minor," also one of §2L1.2's enumerated COV's?

Munoz-Ortenza holds that § 288a(b)(1) is broader than generic sexual abuse of a minor. As in Lopez-DeLeon, the court canvasses state and federal statutes to come up with a generic definition of "minor." It finds that only six states plus D.C. define a minor as a person under eighteen when it comes to criminalizing oral copulation. A large majority require the minor to be under age sixteen, with a handful of others saying "under seventeen." Because the California statute includes some conduct---oral copulation with a seventeen-year-old---that would not be illegal under the majority view, it is broader than generic sexual abuse of a minor and not categorically a COV.

So what about a person with a prior conviction for such an offense in a state that defines a "minor" as a person under age seventeen? Most states require the minor to be under age sixteen, so that offense wouldn't be generic sexual abuse of a minor would it? Sayeth Munoz-Ortenza:

Elsewhere we have held that “minor” in this context includes those under seventeen. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008), cert. denied, 2009 WL 166492 (U.S. Feb. 23, 2009); Najera-Najera, 519 F.3d at 511; United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). We need not decide here whether “minor” as used in the enumerated category of “sexual abuse of a minor” means those under sixteen versus those under seventeen. We can say that “minor” in this context does not include all persons under eighteen—namely, seventeen-year olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Black’s Law Dictionary 997 (6th ed. 1990) (“In most states, a person is no long a minor after reaching the age of 18 . . . .”). However, in the unique crime-of-violence context, we must follow the Taylor common-sense approach.

Of course, under the Taylor approach, a sixteen-year-old is not a "minor." But that's not the way the court saw things in Ayala or Najera-Najera. As you can see, there's some inconsistency in this line of cases.

Another thing worth mentioning: error preservation. Munoz objected to the 16-level COV enhancement in the district court, but the court of appeals applied plain error review. Why? In the district court, Munoz "argued that the California statute improperly criminalizes consensual conduct." He didn't make the age-related argument until he got to the court of appeals. Consequently, plain error review. (It worked out in the end, because the court found application of the 16-level enhancement to be plain error.)

This isn't the first time that the Fifth Circuit has applied plain error review when a defendant raised an issue below, but made a different argument on appeal than in the district court. So keep in mind that a general objection to a COV enhancement may not be sufficient to preserve the issue for appeal. And even a specific objection arguing that the enhancement doesn't apply because of A will apparently not preserve the issue if your argue on appeal that the enhancement doesn't apply because of B.

"Circuit Split Over Elements of Generic 'Sexual Abuse of a Minor'", or "When Does 5=17 and 9=16?"

As you're aware, the question of whether a prior conviction was for "sexual abuse of a minor" can have huge immigration and sentencing consequences. Sexual abuse of a minor is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(A). It's also an enumerated "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. But what is a "minor"?

Although the Fifth Circuit has recognized that the "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" it has nevertheless held that a person under age seventeen is "clearly a 'minor'" for purposes of "sexual abuse of a minor."

Turns out one of our neighbors to the west sees things differently. Yesterday, the (mini) en banc Ninth Circuit held, in Estrada-Mendoza v. Mukasey, No. 05-75850, that the elements of "sexual abuse of a minor," for purposes of the aggravated felony definition, are found in 18 U.S.C. § 2243(a). That statute effectively defines a minor as a person under age sixteen. (The Nines also pointed out that a majority of U.S. states define a minor as a person under age sixteen for purposes of sex laws, although the court considered that point irrelevant for reasons of interest only to those who have spent entirely too much time immersed in the intracacies of the Taylor/Shepard categorical approach. You know who you are.)

Given the current state of Fifth Circuit case law, this circuit split matters chiefly when it comes to Texas age-related sex offenses, which don't employ the same age-of-consent as most states. Indecency with a child under Penal Code § 21.11, and sexual assault under Penal Code § 22.011(a)(2), both prohibit various kinds of sexual activity with a "child," which they define as a person under seventeen. Under the Fifth Circuit's view, those offenses are categorically "sexual abuse of a minor." But not under the Ninth Circuit's view.

So ladies and gentlemen, start your cert petitions.

UPDATE: The Ninth Circuit blog has additional analysis here.