United States v. Sahagun-Gallegos, No. 13-10095 (9th Cir. 2015)
Annotate this CaseDefendant pleaded guilty to illegal re-entry in violation of 8 U.S.C. 1326. After Defendant was sentenced, he appealed, arguing (1) the district court plainly erred by applying a sixteen-level enhancement based on a prior aggravated assault conviction; and (2) the government improperly withheld a motion for a third-level reduction for acceptance of responsibility on the ground that Defendant refused to waive his appeal rights. The Ninth Circuit vacated Defendant’s sentence and remanded for resentencing, holding (1) in light of a post-sentencing amendment to the application notes to U.S.S.G. 3E1.1, the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility; and (2) the district court improperly applied the sixteen-level enhancement on the ground that Defendant’s prior conviction for aggravated assault in violation of Ariz. Rev. Stat. 13-1204(A)(2) was a “crime of violence,” as the documents submitted by the government did not establish that Defendant admitted the elements of section 13-1203(A)(2), the subsection of the Arizona statute defining “assault” that is a match to the generic “crime of violence.”
Court Description: Criminal Law. The panel vacated a sentence and remanded for resentencing in a case in which the defendant pleaded guilty to illegal re-entry in violation of 8 U.S.C. § 1326. As agreed by the parties, the panel held that remand is required because, in light of a post-sentencing amendment to the application notes to U.S.S.G. § 3E1.1, the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility. Because the issue will reoccur at resentencing, the panel addressed the applicability of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) in order to provide guidance on remand. The panel wrote that a sentencing court conducting the modified categorical approach may not, consistent with Descamps v. United States, 133 S. Ct. 2276 (2013), rely on a defense attorney’s statement of the factual basis for a guilty plea and use the process of elimination to determine which subsection of a divisible statute the defendant pleaded guilty to violating. The panel wrote that it was therefore error for the district court to apply the enhancement on the ground that the defendant’s prior conviction for aggravated assault with a deadly weapon in violation of Arizona Revised Statutes § 13- 1204(A)(2) was a “crime of violence,” in reliance on the defense attorney’s statement of the factual basis for the guilty plea, where the documents submitted by the Government do UNITED STATES V. SAHAGUN-GALLEGOS 3 not establish that the defendant pleaded guilty to the elements of A.R.S. § 13-1203(A)(2), the one subsection of the Arizona statute defining “assault” that is a match to the generic “crime of violence.”
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