Valencia v. Gonzales,
439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction
of engaging in unlawful sexual intercourse with a minor who
is more than three years younger than the perpetrator under
Penal Code § 261.5(c) is not categorically a crime of violence
under 18 U.S.C. § 16 for deportation purposes, since it does
not have force as an element, under 18 U.S.C. § 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 18 U.S.C. § 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), second opinion, 431
F.3d 673, superseded and withdrawn.