United States v. Palacios-Delao

158 F. App'x 27

Opinion

MEMORANDUM

**

Francisco Javier Palacios-Delao appeals from the 77-month sentence imposed following his jury trial conviction for unlawful reentry by a deported, removed and/or excluded alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand the sentence.

Palacios-Delao contends that the district court plainly erred when it determined that his prior conviction constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). We agree.

It was plain error for the district court to rely solely upoh the factual description of the prior conviction in the presentence report (“PSR”) in finding that the offense qualified as a crime of violence. See United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.20’03). As was the case in Pimentel-Flores, the PSR in this case did not list the statute of conviction, and the government did not provide judicially-noticeable evidence to establish the basis for appellant’s conviction. Id.

Appellant’s substantial rights were adversely affected by this error. Appellant’s prior conviction did not qualify as a crime of violence under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Matthews, 374 F.3d 872, 875 (9th Cir.2004) (accepting government’s concession that a conviction under Nev.Rey.Stat. 205.060— the same statute of conviction here — “encompasses both dwellings and non-dwellings and therefore does, not necessarily contemplate a burglary of a dwelling”). Moreover, because the government provided no judicially-noticeable documents indicating that the building burglarized by appellant was a dwelling, his conviction was not a crime of violence under the “modified categorical” approach ¡outlined in Taylor. See Matthews, 374 F.3d at 875 & n. 1 (noting, in a preserved error case, that this court may not rely on descriptions in the PSR to determine whether an offense is a burglary of a dwelling for purposes of the modified categorical analysis); see also Pimentel-Flores, 339 F.3d, at 968-69 (concluding that substantial rights were affected because there was a “plausible prospect” that the outcome might have been different had the government provided judicially-noticeable documents from the pri- or offense).

We therefore VACATE the sentence and REMAND 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 9th Cir. R. 36-3.