At page 320 Determining crime of violence using categorical approach34 citing cases“if a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defendant's conviction.”
- United States v. Castellanos-Barba, 648 F.3d 1130 (10th Cir. 2011).published ([W]e do not find facts on appeal ....)
- United States v. Anderson Alexander, No. 17-60360 (5th Cir. Apr. 13, 2020).unpublishedTherefore, the statute is “divisible.” Second, where a statute of conviction is divisible, “courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutor…
- United States v. Jeremias Ovalle-Chun, No. 15-40970 (5th Cir. Apr. 15, 2016).publishedCode Ann. tit. 11, § 602 (b). 4 Case: 15-40970 Document: 00513466863 Page: 5 Date Filed: 04/15/2016 No. 15-40970 Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (per curiam) (quoting United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir…
- United States v. Jeremias Ovalle-Chun, 815 F.3d 222 (5th Cir. 2016).publishedUnder Title 11, § 602(b) of the Delaware Code, “[a] person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury.” 3 “When…
- United States v. Oscar Ceron, 775 F.3d 222 (5th Cir. 2014).publishedId. (quoting United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005)).
- United States v. Smith, 41 F. Supp. 3d 530 (N.D. Miss. 2014).published“If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defen…
- United States v. Stokes, 41 F. Supp. 3d 525 (N.D. Miss. 2014).published“If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defen…
- United States v. Andres Sanchez-Espinal, 762 F.3d 425 (5th Cir. 2014).published“If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defen…
- United States v. Bulfrano Alonzo-Garcia, 542 F. App'x 412 (5th Cir. 2013).unpublishedThese records are generally limited to the "charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S…
- United States v. Silvestre Sandoval-Campos, 452 F. App'x 486 (5th Cir. 2011).unpublishedSee § 2L1.2, comment. (n.l(B)(iv)); United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.2008); United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005); United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.2005).
Show 23 more citing cases
- United States v. Flores-Vasquez, 641 F.3d 667 (5th Cir. 2011).publishedFlores-Vasquez was convicted under D.C.Code section 22-2801, which provides that “[w]ho-ever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person…
- United States v. Ellis-Garcia, 357 F. App'x 569 (5th Cir. 2009).unpublishedBesides the charging document, we may examine the “written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.” United *571 States v. Bonilla-Mungia, 422 F.…
- United States v. Gonzalez, 337 F. App'x 406 (5th Cir. 2009).unpublishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005) (internal quotation marks and citation *408 omitted).
- United States v. Robeldo-Leyva, 307 F. App'x 859 (5th Cir. 2009).unpublishedSome decisions from this Court have stated that courts may look beyond the statute to “pare down” the offense if the statute contains "multiple, disjunctive subsections.” See, e.g., United States v. Hernandez-Rodriguez, 467 F.3d 492, 494 (…
- United States v. Gutierrez, 304 F. App'x 331 (5th Cir. 2008).unpublished However, “[i]f a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or .used in adjudicating guilt in order to determine which particular statutory alternative applies…
- United States v. Rodriguez, No. 07-10535 (5th Cir. Apr. 24, 2008).publishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (internal quotation marks and citation omitted).
- United States v. Rodriguez, 523 F.3d 519 (5th Cir. 2008).publishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005) (internal quotation marks and citation omitted).
- United States v. Gonzalez-Ugarte, 254 F. App'x 353 (5th Cir. 2007).unpublished“If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain [records, such as the charging document,] in order to determine which particular statutory alternative applies to the defendant’s convi…
- United States v. Garcia-Ortiz, 241 F. App'x 222 (5th Cir. 2007).unpublished“If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain ‘conclusive records made or used in adjudicating guilt’ in order to determine which particular statutory alternative applies to the def…
- United States v. Anderson, 726 F. Supp. 2d 737 (S.D. Tex. 2007).publishedStates v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005).
- United States v. Hernandez-Rodriguez, 467 F.3d 492 (5th Cir. 2006).published“When determining whether a prior offense is a crime of violence because it has as an element the use, attempted use, or threatened use of force, district courts must employ the categorical approach established in Taylor v. United States,…
- Juan Larin-Ulloa v. Alberto Gonzales, United States Attorney Gen., 462 F.3d 456 (5th Cir. 2006).publishedCf. United States v. Bonilla-Mungia, 422 F.3d 316, 320-21 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 819 , 163 L.Ed.2d 644 (2005) (holding that Shepard does not permit court to consider factual narrative in probation officer's presenten…
- United States v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006).published See, e.g., United States v. Gonzalez-Chavez, 432 F.3d 334, 337 (5th Cir.2005); United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.2005). .
- United States v. Noriega-Puente, 167 F. App'x 387 (5th Cir. 2006).unpublishedIT IS FURTHER ORDERED that Appellee’s unopposed motion to remand this case to District Court for re-sentencing consistent with our decision in United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct.…
- Arguelles-Olivares v. Mukasey, No. 05-60914 (5th Cir. Feb. 5, 2009).published(holding that Shepard does not permit a court to consider factual narrative in probation officer’s PSR)
- Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008).published See United States v. Bonilla-Mungia, 422 F.3d 316, 320-21 (5th Cir.), cert. denied, 546 U.S. 1070 , 126 S.Ct. 819 , 163 L.Ed.2d 644 (2005) (holding that Shepard does not permit court to consider factual narrative in probation officer's PSR…
- United States v. Ochoa-Cruz, No. 05-50281 (5th Cir. Mar. 8, 2006).published
- United States v. Gradilla-Gonzalez, 176 F. App'x 568 (5th Cir. 2006).unpublished
- United States v. Castro-Padilla, 181 F. App'x 473 (5th Cir. 2006).unpublished
- United States v. Esqueda-Pina, 362 F. App'x 426 (5th Cir. 2010).unpublished
- United States v. Bernardo Ochoa-Cruz, Also Known as Bernardo Canales, Also Known as Inuc Ochoa-Cruz, 442 F.3d 865 (5th Cir. 2006).published
- United States v. Rampersaud Birbal, 640 F. App'x 278 (5th Cir. 2016).unpublished
- United States v. Gelacio Lara-Martinez, 836 F.3d 472 (5th Cir. 2016).published
At page 319 Reviewing waiver arguments regarding sentencing enhancement12 citing casesaddressing an issue raised for the first time in supplemental briefing because a party waived its waiver argument
- United States v. Nyandoro, No. 23-10579 (5th Cir. Sept. 4, 2026).publishedWe look with great disfavor on “new arguments first raised by an [appellant] in supplemental briefing on unrelated issues.” 79 _____________________ See Hunter II, 183 F.4th at 420 (“The paucity of authorities on the challenge [the 75 defe…
- Jason Medina v. Amadeo Ortiz, 623 F. App'x 695 (5th Cir. 2015).unpublished(addressing an issue raised for the first time in supplemental briefing because a party waived its waiver argument)
- United States v. Jolon Carthorne, Sr., 726 F.3d 503 (4th Cir. 2013).published (holding that, because the government failed to argue in its brief that the defendant had "waived any objection to his crime-of-violence enhancement at sentencing,” "the Government has waived its waiver argument,” and pl…)
- Tran Enter., LLC v. DHL Express (USA), Inc., 627 F.3d 1004 (5th Cir. 2010).published ([W]e will not entertain issues first raised by an appellant in his reply brief.)
- United States v. Ramirez-Aguilar, 171 F. App'x 449 (5th Cir. 2006).unpublished United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir.2005).
- United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. 2005).publishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir.2005).
- Peo v. Rael, No. 22CA1069 (Colo. Ct. App. Oct. 10, 2024).See United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir. 2005).
- United States v. Moody, 564 F.3d 754 (5th Cir. 2009).published(discussing government waiver of waiver argument because it raised it only in supplemental briefing)
- United States v. Trujillo, 227 F. App'x 374 (5th Cir. 2007).unpublishedSee United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 819 , 163 L.Ed.2d 644 (2005).
- United States v. Montes-Nunez, 155 F. App'x 154 (5th Cir. 2005).unpublished
Show 1 more citing case
- United States v. Dunn, 182 F. App'x 288 (5th Cir. 2006).unpublished
At page 321 Determining applicable statute elements for enhancement10 citing casesvacating and remanding without discussing prejudice
- United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015).published (vacating and remanding without discussing prejudice)
- United States v. Diaz-Sanchez, 307 F. App'x 797 (5th Cir. 2009).unpublishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.2005).
- United States v. Jimenez-Banegas, 209 F. App'x 384 (5th Cir. 2006).unpublishedSee Gonzalez-Chavez, 432 F.3d at 338 ; United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.2005).
- United States v. Moreno-Mora, 169 F. App'x 392 (5th Cir. 2006).unpublishedAccordingly, we vacate the sentence and remand for resentencing in accordance with the procedure set forth in United States v. Bonilla-Mungia, 422 F.3d 316, 321-22 (5th Cir.2005).
- United States v. Alvarez Garcia, 164 F. App'x 479 (5th Cir. 2006).unpublished“On remand, the district court should order the Government to supplement the record with documents that might establish which elements [of the prior conviction Garcia] pleaded guilty to.” United States v. Bonilla-Mungia, 422 F.3d 316, 321…
- United States v. Balderas, No. 20-10992 (5th Cir. Mar. 22, 2022).unpublished See United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.2005).
- United States v. Castaneda-Baltazar, 239 F. App'x 900 (5th Cir. 2007).unpublishedSee United States v. Bonilla-Mungia, 422 F.3d 316, 321-22 (5th Cir.2005); United States v. Gonzalez-Chavez, 432 F.3d 334, 338-39 (5th Cir. 2005).
- United States v. Palacios, 239 F. App'x 57 (5th Cir. 2007).unpublishedSee United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.), cert. denied, 546 U.S. 1070 , 126 S.Ct. 819 , 163 L.Ed.2d 644 (2005).
- United States v. Meyer, 194 F. App'x 254 (5th Cir. 2006).unpublished
- United States v. Garcia, 470 F.3d 1143 (5th Cir. 2006).published
At page 318 Maintaining precedent unless the supreme court overrules it7 citing cases
- United States v. Villegas-Hernandez, No. 05-40988 (5th Cir. Nov. 17, 2006).publishedUnited States v. Bonilla- Mungia, 422 F.3d 316, 318-19 (5th Cir. 2005).
- United States v. Efren Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006).publishedUnited States v. Bonilla-Mungia, 422 F.3d 316, 318-19 (5th Cir.2005).
- United States v. Bonilla-Mungia, 200 F. App'x 376 (5th Cir. 2006).unpublished U.S. v. Bonilla-Mungia, 422 F.3d 316, 318-19 (5th Cir.2005) (citing Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)).
- United States v. Raya-Romero, 157 F. App'x 703 (5th Cir. 2005).unpublishedApprendi did not overrule the Supreme Court’s decision in AlmendarezTorres, and we must follow that precedent “ ‘unless and until the Supreme Court itself decides to overrule it.’ ” United, States v. Bonillor-Mungia, 422 F.3d 316, 318-19 (…
- United States v. Cuellar-Cuellar, 157 F. App'x 732 (5th Cir. 2005).unpublished
- United States v. Tatum, 165 F. App'x 367 (5th Cir. 2006).unpublished
- United States v. Vasquez-Ramos, 163 F. App'x 348 (5th Cir. 2006).unpublished
Other citing cases
- James v. St. of CA, 229 Cal. App. 4th 130 (Cal. Ct. App. 2014).published
v.
Jose BONILLA-MUNGIA, Defendant-Appellant
Jose Bonilla-Mungia (“Bonilla”) pleaded guilty to being unlawfully present in the United States following deportation and was sentenced to 41 months’ imprisonment. He now appeals the sentence imposed by the district court, asserting that the court plainly erred by enhancing his sentence sixteen levels for a prior “crime of violence.” He also appeals his conviction by challenging the constitutionality of the “felony” and “aggravated felony” enhancement provisions of 8 U.S.C. § 1326(b). For the reasons stated below, we affirm Bonilla’s conviction, vacate his sentence, and remand for development of the record.
I.
On June 7, 2003, Bonilla pleaded guilty to being unlawfully present in the United States after being previously deported, in violation of 8 U.S.C. § 1326(a) and (b). In the presentence report (“PSR”), the probation officer recommended a base offense level of eight pursuant to the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(a) (2002). The PSR also included a recommendation for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the ground that Bonilla’s 2000 conviction for sexual battery in California was a prior “crime of violence.” After a three-level reduction for acceptance of responsibility, the probation officer recommended a sentencing range of 57 to 71 months. The district court adopted the recommendations contained in the PSR, applied a two-level downward departure for Bonilla’s cooperation with the Government, and sentenced him to 41 months’ imprisonment. Bonilla timely appealed.
II.
A.
Bonilla argues that his conviction must be overturned because the felony and aggravated felony provisions contained in 8 U.S.C. § 1326 are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that Almendarez-Torreshas been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). And, as[*319] Bonilla concedes, this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Hopwood v. State of Texas, 84 F.3d 720, 722 (5th Cir.1996). Therefore, his constitutional challenge to § 1326(b) fails, and we affirm his conviction.
B.
Bonilla also argues that the district court improperly enhanced his sentence under U.S.S.G. § 2L1.2(b)(l)(A)(ii) by classifying his 2000 California conviction for sexual battery as a crime of violence. Because he failed to raise this issue in the district court, we review for plain error.
The Government urges us to refrain from addressing this issue on the ground that Bonilla waived any objection to his crime-of-violence enhancement at sentencing. However, the Government did not raise this waiver argument in its brief. Rather, it addressed the merits of Bonil-la’s enhancement under a plain error standard of review. After the parties filed their briefs, we decided United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.2004), which held that a defendant’s prior Texas conviction of child endangerment was not a crime of violence for sentence-enhancement purposes because it did not require the use of force as an element. Therefore, we asked the parties for supplemental briefing about, among other things, the impact of Calderon-Pena on this case. In response to that question, the Government asserted that “Calderon-Pena is inapplicable here because Bonilla waived his objection to the 16-level sentencing enhancement” in the district court. The Government then dedicated two pages of its nine-page letter brief to its new argument about waiver.
We reject the Government’s waiver argument for two reasons: it is unresponsive to our questions on supplemental briefing, and it was untimely. Just as we will not entertain issues first raised by an appellant in his reply brief, United States v. Brown, 305 F.3d 304, 307 n. 4 (5th Cir.2002), we will not consider new arguments first raised by an appellee in supplemental briefing on unrelated issues. Accordingly, the Government has waived its waiver argument, [1] and we proceed with our review of Bonilla’s crime-of-violence enhancement.
Section 2L1.2(b)(l)(A)(ii) of the Guidelines provides for a sixteen-level enhancement of a defendant’s sentence if the defendant was previously deported or remained in the United States after “a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2002). [2] The commentary to § 2L1.2 defines a “crime of violence” as follows:
A “crime of violence”
(I) means an offense under federal, state, or local law that has as an ele[*320] ment the use, attempted use, or threatened use of physical force against the person of another; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2, cmt. n. l(B)(ii)(I) & (II) (2002) (emphasis added).
Bonilla contends that his California conviction for sexual battery does not constitute a crime of violence under U.S.S.G. § 2L1.2 because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another; and it is not equivalent to a “forcible sex offense.” [3]
When determining whether a prior offense is a crime of violence because it has as an element the use, attempted use, or threatened use of force, district courts must employ the categorical approach established in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Calderon-Pena, 383 F.3d at 257-58; see also United States v. Alfaro, 408 F.3d 204, 208 (5th Cir.2005); United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.2002). Under that approach, courts determine the elements to which a defendant pleaded guilty by analyzing the statutory .definition of the offense, not the defendant’s underlying conduct. Calderon-Pena, 383 F.3d at 257 (citing United States v. Vargas-Duran, 356 F.3d 598, 606 (5th Cir.2004) (en banc)). If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain “conclusive records made or used in adjudicating guilt” in order to determine which particular statutory alternative applies to the defendant’s conviction. See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.2005) (discussing the parameters of our review under Taylor). These records are generally limited to the “charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005). [4]
Thus, to decide whether the district court’s crime-of-violence enhancement was proper, we must answer the following questions: First, what particular offense was Bonilla convicted of? Second, does that offense require proof of the use, attempted use, or threatened use of physical force; or can it be categorized as a forcible sex offense?
Bonilla was convicted of sexual battery under the 1998 version of California Penal Code § 243.4, which lists three discrete methods of committing felony sexual battery. [5] Unfortunately, the record does[*321] not tell us which subsection of § 243.4 applies to Bonilla’s conviction. The PSR contains facts pertaining to Bonilla’s alleged conduct in committing the underlying offense. We will not consider these facts, however, because they are not explicit findings of the California court made or used in adjudicating Bonilla’s guilt. Garza-Lopez, 410 F.3d at 274 (“[Ujnder Shepard, a district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.”). Moreover, the record contains no other documents — such as an indictment, information, plea agreement, or transcript of the plea colloquy from California — that we may rely on to determine whether Bonilla’s conviction constituted a crime of violence.
In United States v. Martinez-Paramo, we were presented with a similar predicament. 380 F.3d 799 (5th Cir.2004). In that case, Martinez-Paramo appealed a § 2L1.2 enhancement for a prior crime of violence. The relevant Pennsylvania “ter-roristic threats” statute consisted of three distinct subsections, but the record did not reflect which subsection applied to Martinez-Paramo’s conviction. Id. at 802. We concluded that without any reliable indication in the record of which precise offense Martinez-Paramo pleaded guilty to, we could not determine whether his conviction warranted the crime-of-violence enhancement. Id. at 805. Consequently, we vacated and remanded to the district court for inclusion of the charging documents into the record, and for resentenc-ing. Id. at 803, 805-06.
Likewise, on the record before us, we cannot identify with legal certainty which portion of the sexual battery statute Bonil-la was convicted under. We are therefore unable to determine whether his crime-of-violence enhancement is sustainable; that is, whether Bonilla’s conviction required proof of the use of force, or whether it can be categorized as a forcible sex offense under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Accordingly, we remand to the district court for supplementation of the record. [6]
C.
On remand, the district court should order the Government to supplement the record with documents that might establish which elements Bonilla pleaded guilty to. See Martinez-Paramo, 380 F.3d at 805-06; see also United States v. Turner, 305 F.3d 349 (5th Cir.2002) (remanding for resentencing where the court could not determine whether the defendant’s prior offense was a crime of violence because the charging document was not in the record).[*322] Once the record has been supplemented, the district court should reconsider whether a sixteen-level sentence enhancement for a crime of violence is warranted. See id. In making this determination, the court will no longer be bound by the Guidelines. It must nonetheless consider the applicable offense category and sentence range under the Guidelines and our caselaw, and should clearly state its reasons for the sentence it ultimately assesses.
III. CONCLUSION
Accordingly, we VACATE Bonilla’s sentence and REMAND for resentencing consistent with this opinion.
VACATED and REMANDED.
. See United States v. Menesses, 962 F.2d 420, 425-26 (5th Cir.1992) (holding that the Government waived its waiver argument by failing to brief the issue and raising it for the first time at oral argument); see also Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir.2004) (holding that the Government waived its waiver argument by addressing the issue on the merits in its reply brief); United States v. Quiroz, 22 F.3d 489, 490-91 (2d Cir.1994) (holding that the Government waived its waiver argument by raising it for the first time in a petition for rehearing); United States v. Beckham, 968 F.2d 47, 54 n. 5 (D.C.Cir.1992) (noting that the Government waived any waiver argument it might have made by failing to raise the issue in its appellate brief); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991) (same, listing Seventh Circuit cases).
. In determining Bonilla's sentence, the district court applied the 2002 version of the Guidelines.
. The only enumerated offense under U.S.S.G. § 2L1.2, cmt. n. l(B)(ii)(II) that might describe California's offense of sexual battery is "forcible sex offense.”
. In cases where the defendant did not plead guilty but was convicted by a jury, courts may also consider the jury instructions in order to determine whether an enhancement is implicated under the Guidelines. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143.
. Section 243.4 provides as follows:
(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery!;]
(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically[*321] incapacitated, if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual batteryf;]
(c) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual batteryf.]
Cal.Penal Code § 243.4 (West 1998). Section 243.4(d) sets forth the offense of misdemean- or sexual battery. That subsection is inapplicable to our analysis here because Bonilla's two-year prison sentence indicates that he was convicted of felony sexual battery. Cal Penal Code § 243.4 (West 1998).
. Bonilla also argues in supplemental briefing that the district court erred by mandatorily applying the Guidelines, which the Supreme Court held to be merely advisory in United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we vacate Bonilla’s sentence and remand on other grounds, it is unnecessary to decide this issue. Alfaro, 408 F.3d at 210 n. 2.