An unpublished crimmigration/illegal reentry decision - my favorite type of unpublished decision! In evaluating whether a Utah conviction for sexual abuse of a minor qualified as a sexual abuse of a minor aggravated felony, the Ninth Circuit noted that the statute criminalizes non-sexual conduct—such as kicking a boy’s genitals—and thus, the statute is broader than generic federal definition of sexual abuse of a minor.
Switching gears, the court also addressed whether the intent requirement of the statute, the court stated that "the Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element. Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict. This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element." Because the statute is not divisible with respect to the intent element, the modified categorical approach is not appropriate.
The lesson: Utah Code § 76-5-404.1(2) is not a sexual abuse of a minor aggravated felony.
The full text of US v. Morales-Landa can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/06/22/14-50460.pdf