Earlier this week, the Fifth Circuit released a decision in which it considered whether the defendant’s sentence for illegal reentry, 8 USC § 1326, was properly enhanced due to his earlier state conviction in California for oral copulation with a minor child, California Penal § 288a(b)(1). In United States v. Muñoz-Ortenza, No. 07-51344, slip. op. 6 (5th Cir. Apr. 13, 2009), the 5th Circuit held that a California state conviction for oral copulation with a minor child is not necessarily a crime of violence. The Court discussed the meaning of “minor” as used in crimes of sexual abuse of a minor:
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.
This might help attorneys argue who need to argue that California Penal § 288a(b)(1) is not a crime of violence for purposes of the aggravated felony definition of INA § 101(a)(43)(F).