United States v. Gonzales-Monterroso

Delaware’s attempted rape in the fourth degree statute does not categorically qualify as a “crime of violence” to warrant a sixteen-level sentencing enhancement because the statute’s definition of “substantial step” is broader than the generic federal analogue.

In January 2010, Alvaro Gonzalez-Monterroso (“Gonzales”) pled guilty to Delaware’s charge of attempted rape in the fourth degree and was removed from the country. In July 2010, he reentered illegally, was arrested in Arizona by border patrol agents, and subsequently pled guilty to one count of illegal reentry. The Presentence Investigation Report (“PSR”) imposed a 16–level enhancement because of Gonzalez’s attempted fourth degree rape conviction in Delaware, which the PSR determined was a “crime of violence.” The PSR concluded that Delaware’s offense qualified as “sexual abuse of a minor,” which is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). Despite objections, the district court adopted the PSR's calculation for the sentencing enhancement. Gonzalez appealed. The Ninth Circuit reversed and remanded, holding that Delaware’s attempt statute is broader than the federal generic attempt offense because Delaware's definition of “substantial step” is materially different and encompasses more conduct than the federal definition. Thus, Gonzalez’s prior conviction was not a felony crime of violence for sentence enhancing purposes. Additionally, the panel held that they could not apply a modified categorical approach under Descamps v. United States because the Delaware Illinois statute is not divisible. REVERSED and REMANDED.