The Ninth Circuit has determined that section 163.427(1)(a) of the Oregon Revised Statutes is divisible, and a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony.
Section 163.427(1) provides: A person commits the crime of sexual abuse in the first degree when that person: (a) Subjects another person to sexual contact and: (A) The victim is less than 14 years of age; (B) The victim is subjected to forcible compulsion by the actor; or (C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or (b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.
The question posed was whether subsections (A)-(C) where alternative elements of different crimes or merely alternative means of committing the same offense. The court observed that "the statutory text joins the element of subjecting another person to sexual contact to one of three alternative enumerated circumstances. This phrasing suggests that the legislature created three different offenses: subjecting a victim who is less than 14 years old to sexual contact, or subjecting another person to sexual contact through the use of forcible compulsion, or subjecting another person who is incapable of consent for specified reasons to sexual contact."
The court also consulted the conviction records and noted that "because Count 3 of Diego’s state court indictment, which charged him with “unlawfully and intentionally attempt[ing] to subject [B.C.], a person less than 14 years of age, to sexual contact,” in violation of section 163.427, tracks subparagraph (1)(a)(A), but lacks any text referencing subparagraphs (1)(a)(B) or (C), the indictment 'indicate[s], by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.' Similarly, Diego’s petition to enter a plea admits to the conduct of 'attempt[ing] to subject [B.C.] to sexual contact,' which again tracks the wording of subparagraph (1)(a)(A), in that it admits only that he subjected B.C., a victim known to be less than 14 years of age, to sexual contact. Like the indictment, the plea petition makes no reference to the conduct described in subparagraphs (1)(a)(B) or (C). From these documents, we infer that Oregon treated the victim’s age as a necessary fact that the state was required to prove beyond a reasonable doubt to secure Diego’s conviction, i.e., an element of the offense."
Finally, the court consulted state case law interpreting the statutes. "In State v. Marshall, for example, the Oregon Supreme Court characterized 'sexual contact' and 'subjecting the victim to forcible compulsion,' a phrase specific to subparagraph 163.427(1)(a)(B), as 'the two elements of the crime.' Similarly, in State v. Gray the Court of Appeals of Oregon described 'subjected to forcible compulsion'—the operative language of subparagraph 163.427(1)(a)(B)—as an 'element' of the crime. The court used the same characterization in State v. Nelson. These cases point persuasively to the conclusion that the disjunctive enumerated list of subparagraphs (A) through (C) is a list of alternative elements, not means."
The full text of Diego de Diego v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/26/13-72048.pdf
