United States v. Miguel Quevedo-Cordero

585 F. App'x 629

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2014
• Docket: 13-50145
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant Miguel Quevedo-Cordero appeals his 60-month sentence following a guilty plea to one count of being a deported alien found in the United States after removal, in violation of 8 U.S.C. § 1326. For the reasons that follow, we vacate the sentence and remand for resentencing on an open record.

1. California Health and Safety Code section 11851 is “divisible” within the meaning of Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). United States v. de la Torre-Jimenez, No. 13-50438, 771 F.3d 1163, 2014 WL 5786715 (9th Cir. Nov. 7, 2014). Accordingly, the modified categorical approach applies.

2. The district court plainly erred by failing to conduct an independent modified categorical approach, as described in United States v. Castillo-Marin, 684 F.3d 914 (9th Cir.2012). What we wrote in that case applies equally here: “We can understand the frustration of district judges who sentence a defendant on a record to which no objection was made only to have to later revisit the matter because the government failed to do its job.” Id. at 921 (internal quotation marks omitted). But the modified categorical approach requires that courts look only to the documents approved in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), S-Yong v. Holder, 600 F.3d 1028, 1035-36 (9th Cir.2010), and it was plain error for the court to look beyond those documents. Castillo-Marin, 684 F.3d at 921. We are unpersuaded that our decision in Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir.2011), dictates a different result. Accordingly, we vacate the sentence and remand for resentencing on an open record.

3. The district court did not impermis-sibly burden Defendant’s constitutional rights. See, e.g., United States v. Carter, 804 F.2d 508, 513 (9th Cir.1986) (“When a defendant voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence.”).

4. Because we remand for resentenc-ing, we need not, and do not, reach Defendant’s argument that the district court committed other procedural errors at sentencing.

Sentence VACATED; case REMANDED for resentencing on an open record.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.