United States v. Acosta-Chavez

Illinois’s Aggravated Criminal Sexual Abuse statute does not categorically qualify as a “forcible sex offense” to warrant a sixteen-level sentencing enhancement because the statute’s definition of a minor is broader than the generic federal analogue.

In 2005, Facundo Acosta–Chavez pled guilty to Illinois Aggravated Criminal Sexual Abuse with a minor and was removed from the country. In 2011, he reentered illegally and was arrested in Arizona. Acosta–Chavez was indicted for illegal reentry after deportation and later pled guilty without a plea agreement. During sentencing, the district court calculated the applicable sentencing range to be forty-six to fifty-seven months imprisonment because Acosta–Chavez's 2005 Illinois conviction qualified as a “crime of violence,” which added a sixteen-level sentencing enhancement. However, the district court imposed only thirty months, saying the United States Sentencing Guidelines (“Guidelines”) “overstate[d] the nature of that particular conviction.” Acosta–Chavez appealed to the Ninth Circuit. First, the panel held that the district court erred in enhancing Acosta–Chavez’s sentence because his 2005 conviction did not categorically qualify as a “forcible sex offense” since the Illinois statute’s definition of a minor is broader than the generic federal analogue. Further, the panel applied the decision in Descamps v. United States and stated that it could not apply a modified categorical approach because the age element in the Illinois statute is not divisible. Second, the error was not harmless because the district court’s statement that it would have imposed the same sentence failed to explain the extent of the variance under the Guidelines. Finally, the panel did not remand to a different judge because there were no allegations of bias or unusual circumstances to warrant a different judge. REVERSED and REMANDED.