United States v. Estrada-Lugo

132 F. App'x 716

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2005
• Docket: No. 04-10445
• Status: Published

Opinions

MEMORANDUM

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Defendant Jose Abraham Estrada-Lugo appeals from his sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), with a sentencing enhancement under 8 U.S.C. § 1326(b).

1. We have jurisdiction because the district court’s oral statements conflict with the plea agreement’s waiver of the right to appeal the sole issue here, which is whether Defendant’s conviction for negligent homicide is, or is not, an aggravated felony. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995) (holding that, when the court’s oral statements in the plea colloquy conflict with the written agreement, the court’s oral statements control). When the court asked Defendant whether he agreed to be bound by “all” the terms of the written agreement, defense counsel interjected and specifically excepted the characterization of negligent homicide as an aggravated felony, a matter as to which the prosecution and defense had “agreed to disagree.” The court then asked whether Defendant agreed to be bound by “the remaining” terms of the written agreement, and he answered “yes.” The plea agreement did not specify the sentencing level that applied to negligent homicide, but only to ranges that applied to various categories.

2. As the government properly concedes, negligent homicide is not a crime of violence warranting the 16-level enhancement that the district court imposed here. Leocal v. Ashcroft, — U.S. -, ——-, 125 S.Ct. 377, 384, 160 L.Ed.2d 271 (2004).

REVERSED and REMANDED for re-sentencing.

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.