United States v. Carrillo-Torres

35 F. App'x 630

Opinion

MEMORANDUM

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Freytman Odilion Carrillo-Torres appeals the 63-month sentence imposed after his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 3742, and we vacate and remand.

Carrillo-Torres contends the district court erred by enhancing his sentence for his prior felony conviction for driving under the influence, in violation of Cal. Veh. Code § 23152. We review de novo the district court’s interpretation of the Sentencing Guidelines. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1142 (9th Cir.2001).

After the district court rendered its decision, we determined a § 23152 conviction cannot be used to enhance a sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A). See United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir.2001); cf. United States v. Corona-Sanchez, 234 F.3d 449 (9th Cir.2000), reh’g en banc granted, 265 F.3d 1079 (9th Cir.2001). Because the district court did not have the benefit of our decision in Portillo-Mendoza, we vacate and remand for further proceedings.

VACATED and REMANDED.

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 9th Cir. R. 36-3.