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 offense includes consensual sex with a person one day under 18 years of age, which does not create a substantial 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 statutory rape of a person under the age of sixteen is categorically a crime of violence under U.S.S.G. 4B1.2(a)(2)[defined 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"): "Here, by contrast, the statute defines crime of violence by reference to the risk that physical force may be used to commit the crime, not the physical injuries that might result. The risk that physical force may be used is one that a minor's actual consent removes because, where the minor actually consents to sexual intercourse, force will not be necessary to overcome the minor's resistance.") (emphasis in original). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf