United States v. Oscar Arreguin-Agular

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 23, 2008
• Docket: 07-12071
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT June 23, 2008 No. 07-12071 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 07-00007-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR ARREGUIN-AGUILAR, a.k.a. Ermi Alejandro Pineda-Mondojano, a.k.a. Ermi Alejundro,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida _________________________

(June 23, 2008)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges. PER CURIAM:

This case is on remand from the United States Supreme Court, Arreguin-

Aguilar v. United States, ___ S. Ct. ___, 2008 WL 460875, 1 (2008), which

vacated our opinion Arreguin-Aguilar, 257 Fed. Appx. 152 (11th Cir. 2007) (per

curiam). In that opinion, we affirmed the sentencing decision of the United States

District Court for the Northern District of Florida to increase Arreguin’s base-level

offense by 16 levels on the ground that he was deported after being convicted of

carrying a concealed weapon, a crime which we determined to be a crime of

violence under the United States Sentencing Guidelines. To come to that

conclusion, we relied on a line of Eleventh Circuit cases interpreting U.S.S.G. §

4B1.1. See United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir.1998); United

States v. Williams, 435 F.3d 1350, 1354 (11th Cir.2006). That section defines a

crime of violence one way. Arreguin, however, was sentenced under U.S.S.G. §

2L1.2(b)(1)(A)(ii), which defines a crime of violence in slightly different terms.

When Arreguin petitioned the Supreme Court for a writ of certiorari, the

Solicitor General filed a brief arguing that § 2L1.2(b)(1)(A)(ii) differs materially

from § 4B1.1, and that the district court’s decision to increase the base level of his

offense by 16 levels was therefore a plain error. The Supreme Court vacated our

2 judgment affirming the district court and remanded the case “for consideration in

light of the position asserted by the Solicitor General in his brief for the United

States filed April 21, 2008.” Arreguin-Aguilar v. United States, ___ S. Ct. ___,

2008 WL 460875, 1 (2008).

On June 5, 2008, Arreguin moved for expedited review of the issue because,

if the Solicitor General is correct, he may be due for release in a matter of days.

We therefore GRANT his motion for expedited review, VACATE the

district court’s judgment, and REMAND for further consideration in light of the

Solicitor General’s brief.