- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 08-11-2011
- Case #: 05-50170
- Judge(s)/Court Below: Per Curiam En Banc; Circuit Judge Bybee for the Court; Circuit Judges Rymer; Circuit Judge Berzon, Chief Judge Kozinski and Circuit Judges W. Fletcher, M. Smith and N.R. Smith concurring; Circuit Judge Rawlinson and Circuit Judges Silverman, Gould and Callahan partially concurring and dissenting
- Full Text Opinion
Aguila-Montes de Oca was convicted of illegal reentry after deportation. He had previously pled guilty to residential burglary under California Penal Code § 459. The district court enhanced Aguila’s sentence sixteen levels because it found that his prior state conviction qualified as a “crime of violence” under the U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The Ninth Circuit reasoned that the restrictions on the types of documents considered by the Court when using the “modified categorical approach” to compare state convictions to the generic “crimes of violence” in the U.S.S.G., gave a defendant adequate “opportunity to contest all facts which are necessary to his conviction.” The Court further reasoned that California Penal Code § 459 was broader than the “generic burglary” because it allowed for “a conviction for burglary of a structure open to the public and of a structure that the defendant is licensed or privileged to enter if the defendant enters the structure with the intent to commit a felony.” The Ninth Circuit overruled Navarro-Lopez v. Gonzalez to the extent that it did not apply the “modified categorical approach” to state crimes, missing an element of the generic crime. The Ninth Circuit held that the modified categorical approach is applicable to both “divisible” statutes and to statutes “missing” an element of the generic crime. The Ninth Circuit also held that “Aguila’s conviction for first-degree residential burglary under California Penal Code § 459 did not qualify as a ‘crime of violence’ under either the categorical or modified categorical approach.” VACATED and REMANDED.