FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS QUINTERO-CISNEROS, No. 13-72632 Petitioner, Agency No. v. A027-934-447 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 7, 2017 Seattle, Washington Filed June 11, 2018 Before: Diarmuid F. O’Scannlain, Richard C. Tallman, and Paul J. Watford, Circuit Judges. Opinion by Judge Watford 2 QUINTERO-CISNEROS V. SESSIONS SUMMARY* Immigration The panel denied Carlos Quintero-Cisneros’ petition for review of the Board of Immigration Appeals’ denial of his application for cancellation of removal, holding that he was ineligible for relief because his conviction by guilty plea to the charge of “Assault of a Child in the Third Degree – Criminal Negligence and Substantial Pain – With Sexual Motivation” is a categorical match for sexual abuse of a minor, an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Employing the categorical approach, the panel noted that the relevant definition of the federal offense of sexual abuse of a minor requires proof of three elements: (1) sexual conduct, (2) with a minor, (3) that constitutes abuse. Quintero’s base offense was assault of a child in the third degree under Wash. Rev. Code §§ 9A.36.140(1), 9A.36.031(1)(f), which does not include an element of sexual motivation. However, the information included a special allegation that Quintero committed the crime “with sexual motivation.” Wash. Rev. Code § 9.94A.835(2). As a result, the first issue for the panel was whether the sexual motivation allegation is an element of Quintero’s conviction. The panel observed that it could look to state law to decide what counts as an element of the offense. Alternatively, it could look to the line of Supreme Court * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. QUINTERO-CISNEROS V. SESSIONS 3 precedent beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), interpreting the Sixth Amendment’s right to jury trial. If a sentencing enhancement would be treated as an element of the offense for Sixth Amendment purposes, the government argued, it should be considered an element of the offense for purposes of the categorical analysis as well. The panel concluded it was unnecessary to decide which approach is the correct one, for in this case the sexual motivation allegation constitutes an element under either approach. Considering the question under Washington law, the panel concluded that the sexual motivation allegation is an element of Quintero’s offense, observing that, under Washington’s sentencing scheme, the sexual motivation allegation is a sentencing enhancement that must be charged and found by a jury beyond a reasonable doubt, and that sentencing enhancements of this sort are considered elements of an offense. The panel also concluded that, under the Apprendi line of cases, the sexual motivation allegation would also be considered an element of the offense because it increased Quintero’s maximum authorized sentence. Finally, the panel concluded that Quintero’s offense of conviction ...
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