UNITED STATES of America, Plaintiff-Appellee, v. Javier MORALES-LANDA, Defendant-Appellant, 608 F. App'x 474

MEMORANDUM The sole issue before us is whether the district court properly applied the modified categorical approach to the intent element of the crime of sexual abuse of a child, defined in Utah Code § 76-5-404.1(2), for the purpose of determining whether the defendant had committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Because the statute criminalizes non-sexual conduct — such as kicking a boy’s genitals — the statute is broader than generic sexual abuse of a minor. See United States v. Tafoya-Montelongo, 659 F.3d 738, 743 (9th Cir.2011).

Thus, the district court correctly recognized that Morales’s conviction did not categorically qualify as an aggravated felony. The court then applied the modified categorical approach because it erroneously found Utah’s statute to be divisible. A statute is only divisible if it “sets out one or more elements of the offense in the alternative” instead of listing multiple means of achieving the same element. Descamps v. United States, - U.S. - — , 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In determining if a statute is divisible, we look to how the state treats the statute. Rendon v.

Holder, 764 F.3d 1077, 1088 (9th Cir.2014). The Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element. See, e.g., State v. Bair, 275 P.3d 1050, 1071-72 (Utah Ct.App.2012). Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict. This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element.

Given that the intent element in Utah Code § 76-5-404.1(2) is not divisible, the statute is not amenable to the modified categorical approach. Defendant has “show[n] that the crime of which he was previously convicted was not ... an aggravated felony,” and has thus established that the entry of his removal order was fundamentally unfair. United States v. Martinez, No. 12-30185, 786 F.3d 1227, 1230, 2015 WL 3406178, *2 (9th Cir. May 28, 2015). Because the two remaining prongs of 8 U.S.C. § 1326(

d) were uncontested, the district court’s denial of defendant’s motion to dismiss his indictment for illegal reentry is REVERSED. The Clerk is directed to issue the mandate forthwith. As the defendant only has two months to serve on his 24-month sentence, the defendant is to be released immediately from incarceration. The foregoing does not affect the- validity of any immigration detainer that may be lodged. REVERSED. MANDATE ISSUE FORTHWITH. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.