United States v. Catalino Pineda

472 F. App'x 557

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2012
• Docket: 10-10508
• Status: Unpublished

Opinion

MEMORANDUM **

Catalino Pineda appeals his sentence for his criminal conviction for illegal reentry after removal under 8 U.S.C. § 1326(a), with an enhancement under 8 U.S.C. § 1326(b) for having previously been convicted of an aggravated felony. Pineda had previously been convicted of arson in violation of California Penal Code § 451(c).

Pineda’s conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a), carries a statutory maximum sentence of 2 years, but that maximum goes up to 10 years if he was previously convicted of a felony, and up to 20 years if he was previously convicted of an aggravated felony. 8 U.S.C. § 1326(b).

Pineda concedes that his conviction qualifies as a felony under 8 U.S.C. § 1326(b)(1), whether or not it is an aggravated felony under 8 U.S.C. § 1326(b)(2). 1 Thus, the district court could have sentenced Pineda up to 10 years. We therefore affirm the sentence of forty-eight months imposed by the district court, and remand for the district court to correct the judgment to cite 8 U.S.C. § 1326(b)(1) instead of 8 U.S.C. § 1326(b)(2).

AFFIRMED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . We do not opine on any tension between United States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir.2005) (interpreting U.S.S.G. § 2L1.2 cmt. l(B)(iii) (2001)), and Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir.2007) (interpreting 8 U.S.C. § 1101(a)(43)), in the method to be used to determine whether a prior conviction qualifies as an aggravated felony because any such decision is not necessary in this case.