United States v. Deagueros-Cortes

40 F. App'x 516

Opinion

MEMORANDUM

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Antonio Deagueros-Cortes appeals the 48-month sentence imposed following his guilty-plea conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 18 U.S.C. § 3742. We review sentencing issues raised for the first time on appeal for plain error. See United States v. Randall, 162 F.3d 557, 561 (9th Cir.1998). We reverse and remand for resentencing.

Deagueros-Cortes contends that the district court erred in imposing a 16-level upward adjustment under U.S.S.G. § 2L1.2(b)(l)(A) (1997) because his prior Arizona convictions for driving under the influence and attempted sexual assault were not aggravated felonies under 8 U.S.C. § 1101(a)(43).

Because Deagueros-Cortes only received a six-month sentence for the attempted sexual assault conviction, that offense does not qualify as an aggravated felony under § 1101(a)(43)(F) (1997) (requiring imposition of one year sentence for violent crimes). See also Alberto-Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir.2000) (holding that the term of imprisonment as defined by 8 U.S.C. § 1101(a)(43)(f) (1997) refers “to the actual sentence imposed by the trial judge”). We have previously held that a prior California conviction for felony driving under the influence is not an aggravated felony conviction. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir.2001); Cf. United States v. Hernandez-Castellanos, 287 F.3d 876, 881 (9th Cir.2002) (holding that Arizona offense of felony endangerment was not categorically an aggravated felony). As a result, the 16-level enhancement was plain error, and it had a substantial effect on Deaguerros-Cortes’s sentence. Accordingly, we exercise our discretion to notice the error, and we reverse. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

REVERSED 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 9th Cir. R. 36-3.