United States v. Perez-Diaz

167 F. App'x 600

Opinion

MEMORANDUM

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Rafael Perez-Diaz appeals from the 48-month sentence imposed following his guilty plea conviction to unlawful reentry of a deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Perez-Diaz contends that the district court committed plain error in applying a 16-level enhancement for a prior crime of violence without “documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.” United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (internal quotations omitted). We agree. The district court plainly erred in relying solely on the description in the pre-sentencing report. United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.2003).

Accordingly, we vacate the sentence and remand for the district court to determine whether Perez-Diaz’s prior conviction is a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii).

VACATED and REMANDED.

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.