Valencia v. Gonzales, 431 F.3d 673 (9th
Cir. Dec. 12, 2005) (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, 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 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was not ordered removed on that ground), withdrawn and superceded
by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).