In this criminal sentencing, the court addressed an issue relevant to the sex abuse of a minor aggravated felony ground of removal. In this case, the government sought a sentencing enhancement based on the defendant's prior conviction Gross Sexual Imposition. The government alleged that this qualified as a prior conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."
The court first applied the the categorical approach and concluded that the state offense must include as an element the age of the victim. The "involving a minor or ward" language modified the sexual abuse, etc., language. In this case, it was clear from the plea colloquy and other documents that the victim was a minor but because the victim's age was not an element of the offense, it did not trigger the sentencing enhancement.
The court next applied the modified categorical approach. The factual basis for the conviction is relevant only to the extent that it assists the court in identifying which alternative elements of the statute were violated. Although the judgement did not identify the specific subsection that was violated, it did narrow down the possibilities and none of those possibilities include age as an element.The court would not rely on or consider factual material in the charging documents or the plea colloquy because it was not essential to the guilty plea or an element of the offense.