United States v. Gonzalez-Tadeo

143 F. App'x 56

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2005
• Docket: No. 04-30310
• Status: Published

Opinion

MEMORANDUM

**

David Gonzalez-Tadeo appeals his 37-month sentence imposed after pleading guilty to unlawful re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742.

Gonzalez-Tadeo contends that his prior conviction under Idaho’s statute for battery with intent to commit a serious felony is not a categorical crime of violence, and the enhancement violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc). We reject this contention. See United States v. Smith, 390 F.3d 661, 666-67 (9th Cir.2004) (noting that a modified categorical approach does not permit inquiry into the underlying facts of conviction and that Apprendi is not violated in such prior conviction determinations); see also United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (order).

Because appellant was sentenced under the then-mandatory Sentencing Guidelines, we remand the sentence for further proceedings consistent with Ameline, 409 F.3d at 1084-85. See United States v. Hermosa-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005).¹

SENTENCE REMANDED.

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.

1 . Appellant’s request for oral argument is denied.