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F.3d 673, superseded and withdrawn.