United States v. De Oca, No. 05-50170 (9th Cir. 2011)
Annotate this CaseA majority of the en banc court overruled the court's prior holding in Navarro-Lopez v. Gonzales that the modified categorical approach did not apply "[w]hen the crime of conviction [was] missing an element of the generic crime altogether." A different majority overruled the court's prior decisions to the extent they held that a conviction under California Penal Code 459 qualified as a generic burglary conviction if the defendant pleaded guilty to entering a building "unlawfully" or a jury found the defendant guilty as charged in an indictment reciting that allegation. This majority concluded, in this case, that defendant's prior conviction under section 459 could not be used to enhance his sentence. Therefore, the district court's sentence was vacated and the case remanded to the original three-judge panel for consideration of the remaining issues on appeal.
This opinion or order relates to an opinion or order originally issued on April 28, 2008.
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