United States v. Israel Salinas

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2023
• Docket: 22-30039
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30039

Plaintiff-Appellee, D.C. No. 1:21-cr-00072-DCN-1

v. MEMORANDUM* ISRAEL JACOB SALINAS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted February 14, 2023**

Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.

Israel Jacob Salinas appeals from the district court’s judgment and

challenges the 110-month sentence imposed following his guilty-plea conviction

for unlawful possession of firearms and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). sentence and remand.

Salinas contends that the district court erred by determining that his prior

conviction for assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), was

a crime of violence warranting a greater base offense level under U.S.S.G.

§ 2K1.2(a)(2). The government concedes this error. See Jones v. United States, 36

F.4th 974, 980, 986 (9th Cir. 2022) (accepting government’s concession that

assault resulting in serious bodily injury under § 113(a)(6) can be committed

recklessly); United States v. Garcia-Jimenez, 807 F.3d 1079, 1085 (9th Cir. 2015)

(“[A] mens rea of extreme indifference recklessness is not sufficient to meet the

federal generic definition of aggravated assault.”).

Because the conceded error impacted the district court’s calculation of the

applicable Guidelines range, we vacate the judgment and remand for the district

court to resentence Salinas using a base offense level of 20 under U.S.S.G.

§ 2K2.1(a)(4)(A). See Molina-Martinez v. United States, 578 U.S. 189, 198-200

(2016).

VACATED and REMANDED for resentencing.

2 22-30039