United States v. Adrian Aguilar-Rivera , 446 F. App'x 908 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 11 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50560
Plaintiff - Appellee, D.C. No. 3:10-cr-02273-H
v.
MEMORANDUM *
ADRIAN AGUILAR-RIVERA,
a.k.a. Julio Cesar Castaneda,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted August 2, 2011 **
Before: RYMER, IKUTA, and N.R. SMITH, Circuit Judges.
Adrian Aguilar-Rivera appeals from the 30-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291 and we affirm in part, vacate in part and remand for resentencing.
Aguilar-Rivera first contends the district court erred in holding that his prior
conviction for grand theft, in violation of California Penal Code § 487(a), qualified
as an aggravated felony under the modified-categorical approach. Aguilar-Rivera
is correct; the record before the district court does not establish Aguilar-Rivera
admitted to all of the elements of generic theft. See United States v. Vidal, 504
F.3d 1072, 1086 (9th Cir. 2007) (en banc) (“A prior conviction based on an overly
inclusive criminal statute that resulted from a guilty plea rather than a jury verdict
will support a sentence enhancement only if the record confirms that the plea
necessarily rested on the fact identifying the [offense] as generic.”) (internal
quotation marks omitted) (quoting Shepard v. United States, 544 U.S. 13, 21
(2005)); Carrillo-Jaime v. Holder, 572 F.3d 747, 751 (9th Cir. 2009).
Aguilar-Rivera’s contention concerning Almendarez-Torres is foreclosed.
See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).
As the government has not met its burden of demonstrating that Aguilar-
Rivera’s § 487(a) conviction qualified as an aggravated felony, we vacate the
sentence and remand for resentencing. See United States v. Matthews, 278 F.3d
880, 885-86 (9th Cir. 2002) (en banc).
AFFIRMED in part; VACATED in part; and REMANDED.
2 10-50560