United States v. Valenzuela-Hernandez

72 F. App'x 686

Opinion

MEMORANDUM

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Saul Valenzuela-Hernandez appeals his guilty plea conviction and 57-month sentence for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

Valenzuela-Hernandez contends that the pre-sentence report (“PSR”) was insufficient proof that his 1996 burglary conviction was a crime of violence for purposes of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). We review for plain error because Valenzuela-Hernandez raised no objection below. United States v. Jimenez, 258 F.3d 1120, 1123-25 (9th Cir.2001), cert. denied, 534 U.S. 1151, 122 S.Ct. 1115, 151 L.Ed.2d 1009(2002).

The PSR described Valenzuela-Hernandez’s 1996 offense as “burglary in the second degree” but did not specify the statute of conviction or cite to judicially noticeable documents. Therefore, it was plain error to rely on the PSR alone. See Jimenez, 258 F.3d at 1126; United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc) (holding that PSR with only a recitation of the facts is insufficient evidence for purposes of determining whether a prior conviction merits enhancement).

Consequently, we remand for re-sentencing to allow the district court to review the existing record and any state court documents that may be obtained in order to determine whether Valenzuela-Hemandez’s prior conviction qualifies for the enhancement. See United States v. Matthews, 278 F.3d 880, 889-90 (9th Cir.) (en banc) (allowing the government to introduce omitted evidence on remand), cert. denied, 535 U.S. 1120, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002). Cf United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir.2001) (en banc) (stating that when the statute is broader than the generic definition, the court should examine other documents or judicially noticeable facts that clearly establish the prior conviction is a predicate conviction for enhancement purposes).

Valenzuela-Hernandez also contends that the district court erred by rejecting a proposed plea agreement and then telling him he had the right to withdraw his guilty plea only after imposing sentence. This contention lacks merit because after the district court rejected the plea agreement, Valenzuela-Hernandez conferred with his attorney and his attorney informed the court that Valenzuela-Hernandez wished to proceed to sentencing, understood he had a right to appeal, and counsel saw no legal reason why sentencing should not commence. Accordingly, any error is not reviewable on appeal. See United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (en banc) (holding that if the defendant has both invited the error, and relinquished a known right, then the error is waived).

CONVICTION AFFIRMED; SENTENCE REVERSED 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.