United States v. Ortega-Martinez

58 F. App'x 676

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2003
• Docket: No. 01-50673; D.C. No. CR-00-03888-JKS
• Status: Published

Opinion

MEMORANDUM

**

Diego Ortega-Martinez appeals his 21-month sentence and three-year term of supervised release imposed following his guilty-plea conviction for unlawful re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.¹

Ortega-Martinez contends that our recent decision in United States v. Corona-Sanchez, 291 F.3d 1201, 1213 (9th Cir. 2002) (en banc), warrants reversal of his sentence. We agree.

The district court enhanced Ortega-Martinez’s sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(A) (2000) on the grounds that his prior conviction under California Penal Code §§ 484, 666 was an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). We have since held that a petty theft conviction under California Penal Code §§ 484, 666 does not constitute an aggravated felony for federal sentencing purposes. See Corona-Sanchez, 291 F.3d at 1213.

Accordingly, we reverse Ortega-Martinez’s sentence and remand to the district court for re-sentencing.

We deny Ortega-Martinez’s motion for summary reversal filed July 1, 2002, as moot.

REVERSED and REMANDED for RESENTENCING.

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 . As the government concedes, this appeal is not moot despite Ortega-Martinez’s release from prison and deportation because Ortega-Martinez has reentered the country and thus become subject once again to the terms of supervised release.