Valencia v. Gonzales, ___ F.3d ___, 2005 WL 3358678 (9th Cir. Dec. 12, 2005) (original opinion, 406 F.3d 1154, superseded and withdrawn on denial of rehearing and rehearing en banc) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code section 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. 16 for deportation purposes, since it does not have force as an element, under 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028p.pdf