United States v. Mario Aguirre-Contreras , 471 F. App'x 696 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 10-10300
10-10301
Plaintiff - Appellee,
D.C. Nos. 4:09-cr-00128-FRZ
v. 4:07-cr-00775-FRZ
MARIO AGUIRRE-CONTRERAS,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
In these consolidated appeals, Mario Aguirre-Contreras appeals from the 60-
month sentence imposed following his guilty-plea conviction for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326. He also appeals the revocation
*
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).
of his supervised release and the sentence imposed upon revocation. We have
jurisdiction under 28 U.S.C. § 1291. We affirm the revocation of Aguirre-
Contreras’s supervised release, but vacate the sentences imposed upon revocation
and upon his conviction for illegal reentry and remand for resentencing.
Aguirre-Contreras contends that the district court erred in applying a 16-
level enhancement to his sentence under U.S.S.G. § 2L1.2(b), based on his prior
attempted burglary conviction under Arizona Revised Statutes § 13-1507.
Contrary to the government’s contention, this argument has not been waived. See
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).
As we have previously held, Arizona burglary does not categorically match
the generic federal definition. See United States v. Bonat, 106 F.3d 1472, 1475-76
(9th Cir. 1997). Therefore, whether Aguirre-Contreras’s prior conviction qualifies
as a crime of violence depends upon application of the modified categorical
approach described in Taylor v. United States, 495 U.S. 575, 602 (1990). The
district court’s failure to conduct this analysis was plain error. See United States v.
Pimentel-Flores, 339 F.3d 959, 968 (9th Cir. 2003). Accordingly, we vacate the
sentence imposed on Aguirre-Contreras following his illegal reentry conviction
and remand for resentencing on an open record.
2 10-10300 & 10-10301
Pursuant to Anders v. California, 386 U.S. 738 (1967), Aguirre-Contreras’s
counsel’s brief states that there are no arguable grounds for relief on direct appeal
with respect to the revocation of Aguirre-Contreras’s supervised release or the
sentence imposed upon revocation. Based on our independent review of the record
pursuant to Penson v. Ohio, 488 U.S. 75, 80-81 (1988), we agree. We therefore
affirm the revocation of Aguirre-Contreras’s supervised release. However, in light
of our disposition above, we vacate the sentence imposed upon revocation and
remand for resentencing.
AFFIRMED in part; VACATED and REMANDED in part.
3 10-10300 & 10-10301