United States v. Hernandez-Castaneda

52 F. App'x 74

Opinion

MEMORANDUM **

Antonio Hernandez-Castaneda appeals the 46-month sentence imposed following his guilty-plea conviction for illegal re-entry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review de novo whether the aggravated felony provision of the United States Sentencing Guidelines has been properly applied, United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001), and we vacate the sentence and remand for resentencing.

Hernandez-Castaneda contends the district court erred in imposing a 16-level upward adjustment under U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A) (2000) because his prior Arizona convictions for aggravated driving under the influence are not aggravated felonies under 8 U.S.C. § 1101(a)(43). We have previously held that a prior California conviction for felony driving under the influence is not a “crime of violence” and cannot qualify as an aggravated felony conviction for sentencing enhancement purposes. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir.2001); see also Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir.2002). Arizona Revised Statutes §§ 28-692 and 28-697 are similar. Accordingly, we conclude that Hernandez-Castaneda’s prior convictions were not aggravated felonies and we vacate his sentence and remand for resentencing consistent with this disposition.¹

VACATED AND REMANDED.

Footnotes

**

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

. Hemandez-Castaneda's request for reassignment to a new judge on remand is denied. See United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) (reassignment to new judge on remand appropriate only under “unusual circumstances”) (citations omitted).