Argued and Submitted, San Francisco, California March
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:12-cr-01649-DCB-DTF-1. David C. Bury, District Judge, Presiding.
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, 186 L.Ed.2d 438 (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 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."
Davina T. Chen (argued), Law Office of Davina T. Chen, Glendale, California, for Defendant-Appellant.
Robert A. Fellrath (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, Robert L. Miskell, Appellate Chief, and Christina M. Cabanillas, Assistant United States Attorney, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.
Before: John T. Noonan, William A. Fletcher, and Morgan Christen, Circuit Judges. Opinion by Judge Christen.
CHRISTEN, Circuit Judge:
We consider in this case whether, consistent with Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), a sentencing court conducting the modified categorical approach may 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. We conclude that it may not, and we vacate and remand for resentencing.
Ruben Sahagun-Gallegos was deported to Mexico in 2006. He returned to the United States, and in 2008 he pleaded guilty in Pima County Superior Court to aggravated assault with a deadly weapon in violation of Arizona Revised Statutes (A.R.S.) § 13-1204(A)(2). Shortly after his prison term began, he was released to the custody of Immigration and Customs Enforcement, convicted of illegal re-entry in federal court, and deported.
Sahagun-Gallegos again returned to the United States. In August 2012, he was indicted in federal court for illegal reentry in violation of 8 U.S.C. § 1326 (enhanced by 8 U.S.C. § 1326(b)(1)). He pleaded guilty to the indictment without a plea agreement.
Before sentencing, a probation officer prepared a presentence investigation report
(PSR). The PSR determined Sahagun-Gallegos's base offense level under the Sentencing Guidelines was 8. The PSR recommended a 16-level enhancement based on its conclusion that Sahagun-Gallegos's aggravated assault conviction qualified as a felony " crime of violence." After a 2-level deduction for acceptance of responsibility, the PSR calculated the total offense level as 22. According to the PSR, " [t]he government indicated a motion for the third-level reduction for acceptance of responsibility will be made if the defendant waives his appeal rights."
The Government submitted three documents pertaining to Sahagun-Gallegos's aggravated assault conviction in support of the 16-level enhancement: the plea agreement, the plea hearing transcript, and the grand jury transcript. Neither ...