United States v. Rosales-Martinez ( 2012 )

FILED
UNITED STATES COURT OF APPEALS APR 09 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 07-10524
Plaintiff - Appellee, D.C. No. CR-06-01449-CKJ
District of Arizona,
v. Tucson
PEDRO ROSALES-MARTINEZ, a.µ.a.
Pete M. Rosales, ORDER
Defendant - Appellant.
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
The government's motion to amend the memorandum disposition to alter the
remedy is granted.
This court's memorandum disposition, filed December 21, 2011, is amended
as follows:
1. The sentence on page one, line three to page two, line one that reads:
'We have jurisdiction under 28 U.S.C. y 1291, and we vacate and remand for
resentencing,' is deleted and replaced with: 'We have jurisdiction under 28 U.S.C.
y 1291, and we affirm without prejudice to an application by Rosales-Martinez to
the district court to vacate his sentence and resentence him consistent with this
decision.'
2. The sentence on page three, lines 10 through 11, that reads:
'Accordingly, we vacate the sentence and remand for resentencing consistent with
this disposition. See Aguila-Montes de Oca, 655 F.3d at 946-47,' is deleted and
replaced with: 'Accordingly, Rosales-Martinez is entitled to resentencing.
However, the district court cannot sentence Rosales-Martinez at this time because
he has been released and deported. We accordingly affirm the sentence imposed
by the district court, but do so without prejudice to an application by Rosales-
Martinez to the district court to vacate his sentence and resentence him consistent
with this decision at such time, if ever, that he is in this country and available for
resentencing. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th
Cir. 2004).'
3. Page three, line 14, that reads: 'VACATED and REMANDED,' is
deleted and replaced with: 'AFFIRMED.'
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FILED
NOT FOR PUBLICATION APR 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-10524
Plaintiff - Appellee, D.C. No. CR-06-01449-CKJ
v.
MEMORANDUM *
PEDRO ROSALES-MARTINEZ, a.µ.a.
Pete M. Rosales,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Pedro Rosales-Martinez appeals from the 65-month sentence imposed
following his bench-trial conviction for attempted illegal reentry after deportation,
in violation of 8 U.S.C. y 1326. We have jurisdiction under 28 U.S.C. y 1291, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
we affirm without prejudice to an application by Rosales-Martinez to the district
court to vacate his sentence and resentence him consistent with this decision.
Rosales-Martinez contends that the district court committed plain error when
it imposed a 16-level enhancement pursuant to U.S.S.G. y 2L1.2(b)(1)(A)(ii) based
on his conviction for attempted second-degree burglary in violation of Arizona
Revised Statutes y 13-1507.
Rosales-Martinez's conviction is not categorically a crime of violence under
U.S.S.G. y 2L1.2(b)(1)(A)(ii). See United States v. Bonat, 106 F.3d 1472, 1475
(9th Cir. 1997) ('Arizona courts have expanded the [burglary] statute beyond
generic burglary because they have interpreted the statute to allow a conviction
even if the intent to commit the crime was formed after entering the structure
and/or the entry was privileged.').
The district court plainly erred in applying the 16-level enhancement,
because the conviction records relating to Rosales-Martinez's burglary conviction
are insufficient under the modified categorical approach to demonstrate that his
conviction necessarily rested on facts satisfying the elements of generic burglary.
See United States v. Aguila-Montes de Oca, 655 F.3d 915, 945-46 (9th Cir. 2011)
(en banc). At sentencing, the government introduced the complaint, the
information, verdict forms and sentencing papers. These documents, as well as the
jury instructions, simply repeat the elements of Arizona burglary and do not
2 07-10524
establish that Rosales-Martinez formed the intent to commit the burglary before
entering the structure, or that his entry was unlawful or unprivileged, or that he
burgled an immovable structure. See United States v. Terrell, 593 F.3d 1084, 1092
(9th Cir. 2010); see also Aguila-Montes de Oca, 655 F.3d at 946 ('[C]onviction
records for [Arizona] burglary cannot demonstrate that a defendant was convicted
of generic burglary unless they do something more than simply repeat the elements
of [Arizona] burglary.').
Erroneous application of a sentencing enhancement affects the defendant's
substantial rights and 'affect[s] both the fairness and integrity of our judicial
system.' United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir. 2001).
Accordingly, Rosales-Martinez is entitled to resentencing. However, the district
court cannot sentence Rosales-Martinez at this time because he has been released
and deported. We accordingly affirm the sentence imposed by the district court,
but do so without prejudice to an application by Rosales-Martinez to the district
court to vacate his sentence and resentence him consistent with this decision at
such time, if ever, that he is in this country and available for resentencing. See
United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th Cir. 2004).
We grant Rosales-Martinez's requests for judicial notice, and deny as moot
his motion to lift the stay.
AFFIRMED.
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