Argued and Submitted, Seattle, Washington: March 8,
Resubmitted: May 8, 2015.
Submission Withdrawn and Deferred March 14, 2013.
Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:11-cr-06071-FVS-1. Fred L. Van Sickle, Senior District Judge, Presiding.
The panel reversed the district court's denial of the defendant's motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326, and remanded.
The panel held that the defendant was not removable based on an aggravated felony because a conviction for third-degree child molestation under Wash. Rev. Code § 9A.44.089 (2001) does not categorically meet the generic definition of sexual abuse of a minor due to missing elements in the statute.
The panel was unable to resort to the modified categorical approach because the Washington statute is indivisible and is missing elements of the generic definition of sexual abuse of a minor: " abuse" based on " physical or psychological harm in light of the age of the victim in question," and a " sexual act" involving skin-to-skin contact.
Rebecca L. Pennell (argued), Federal Defenders of Eastern Washington & Idaho, Yakima, Washington, for Defendant-Appellant.
Michael C. Ormsby, United States Attorney, and Alison L. Gregoire (argued), Assistant United States Attorney, Yakima, Washington, for Plaintiff-Appellee.
Before: William A. Fletcher, Johnnie B. Rawlinson, and David M. Ebel,[*] Circuit Judges. Opinion by Judge Rawlinson.
RAWLINSON, Circuit Judge:
Appellant Francisco Salgado Martinez (Martinez) challenges the district court's denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326. Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev. Code § 9A.44.089 (2001) was not an aggravated felony. Because recent developments ...