United States v. Sandoval-Gutierrez

107 F. App'x 783

Opinion

MEMORANDUM

*

Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), fourth-degree assault in Washington does not qualify as a crime of violence as that term is defined in 18 U.S.C. § 16(a). Under Washington law, it is possible to commit fourth-degree assault through an unlawful touching that does not involve significant physical force. See State v. Hall, 104 Wash.App. 56, 14 P.3d 884, 889 (Wash.Ct.App.2000). Consequently, that crime is not categorically a crime of violence. United States v. Belless, 338 F.3d 1063, 1068 (9th Cir.2003). Under the modified categorical approach, the information, plea agreement, and judgment in the record do not exclude the possibility that Sandoval-Gutierrez’s guilty plea to fourth-degree assault was for conduct that did not involve significant physical force. We therefore conclude that Sandoval-Gutierrez’s prior guilty plea did not constitute a crime of violence under either the categorical or the modified categorical approach, and that the § 2L1.2(b)(1)(C) enhancement was improperly applied.

The district court also erred in adding one point to Sandoval-Gutierrez’s criminal history pursuant to U.S.S.G. § 4A1.1(c) based upon Sandoval-Gutierrez’s prior misdemeanor conviction for which he received a partially suspended sentence and served only 10 days. U.S.S.G. § 4A1.2(b)(2); id. § 4A1.2(e)(1); United States v. Hernandez-Hernandez, 374 F.3d 808, 814-15 (9th Cir.2004). There was no error, however, in the district court’s assessment of one point for Sandoval-Gutierrez’s prior conviction for which he received a totally suspended sentence. United States v. Williams, 291 F.3d 1180, 1195 (9th Cir.2002).

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 Ninth Circuit Rule 36-3.