United States v. Diaz-Valenzuela

88 F. App'x 198

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2004
• Docket: No. 03-50116
• Status: Published

Opinion

MEMORANDUM

**

The defendant’s first degree residential burglary conviction pursuant to California Penal Code § 459 was a crime of violence under USSG § 2L1.2(b)(l)(A)(ii)(2001). Applying the modified categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the documents before the district court established that Diaz-Valenzuela pled guilty to a crime that contained the Taylor elements of generic burglary and the dwelling requirement of USSG § 2L 1.2(b)(1), cmt. n. l(B)(ii)(II). See Velasco-Medina, 305 F.3d 839, 852 (9th Cir.2002).

In addition, the government was not required to prove that the defendant was not convicted of aiding and abetting. Aiding- and-abetting offenses are specifically included as § 2L1.2(b)(l) offenses. USSG § 2L1.2, cmt. n. 4. Cf. United States v. Wenner, 351 F.3d 969, 976 (9th Cir.2003). In any case, nothing in the record indicates that the offense was an aiding-and-abetting offense.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.