Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(b), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the full range of conduct defined by the elements of the offense of conviction does not "by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," because the statute of conviction prohibits consensual sexual intercourse between a twenty-one-year-old and a minor one day shy of eighteen, who is fully capable of freely and voluntarily consenting to sexual relations, so the minor's deemed incapacity does not suggest a risk that force may be used in committing the offense), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005), distinguishing United States v. Asberry, 394 F.3d 712, 716-18 (9th Cir. 2005)(conviction for the statutory rape of a victim under the age of sixteen is categorically a crime of violence under U.S.S.G. 4B1.2(a)(2)[crime of violence is defined under this guideline as an offense that poses a "serious potential risk of physical injury to another"] because consequences of sexual intercourse such as pregnancy and sexually transmitted disease fall within the meaning of "physical injury").
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf