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ground), second opinion, 431 F.3d 673, superseded and withdrawn.