United States v. Avila

13 F. App'x 645

Opinion

MEMORANDUM

**

Marco Antonio Avila appeals his thirty-month sentence imposed following his guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate and remand.

Avila contends, and the government correctly concedes, that the district court erred by enhancing his sentence sixteen levels based on a prior conviction which was not an aggravated felony. Because Avila did not raise this argument in the district court, we review for plain error. United States v. Casarez-Bravo, 181 F.3d 1074, 1078 (9th Cir.1999). We have previously determined that being an accessory after the fact is not a crime of violence even if the underlying crime was violent. United States v. Innie, 7 F.3d 840, 850-52 (9th Cir.1993). Avila’s prior conviction for accessory to assault with a deadly weapon is not distinguishable from the offense in Innie. His prior conviction therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. See Innie, 7 F.3d at 850-52. This error is plain. See Casarez-Bravo, 181 F.3d at 1078. Because Avila was erroneously subjected to an increased sentence, his substantial rights were affected, and we agree that he is entitled to resentencing.¹ See id.

Avila next contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Avila’s argument is foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (applying plain error review), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).²

The mandate shall issue forthwith. Fed. R.App. P. 41(b) and Cir. R. 41-1.

VACATED AND REMANDED FOR RESENTENCING.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.

1

. Because we hold that Avila's prior felony conviction was not a crime of violence, we need not reach his argument that his prior conviction was not an aggravated felony because he was not sentenced to a term of imprisonment of at least one year for a crime of violence. Cf. Alberto-Gonzalez v. Immigration and Naturalization Service, 215 F.3d 906, 909-10 (9th Cir.2000).

2

. In light of our disposition, we do not reach Avila's contention that his case should be remanded for the district court to correct the judgment by striking any reference to 8 U.S.C. § 1326(b). But see United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000).