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United States v. De Oca

January 20, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GUILLERMO AGUILA-MONTES DE OCA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. CR-04-02175-RTB

The opinion of the court was delivered by: Thompson, Senior Circuit Judge

FOR PUBLICATION

Argued February 9, 2006

Submitted February 29, 2008 Pasadena, California

Before: David R. Thompson, Thomas G. Nelson, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Thompson; Dissent by Judge Gould

ORDER

The defendant-appellant's petition for rehearing, filed May 27, 2008, is GRANTED.

Judge Gould dissents and would deny the petition for rehearing.

The Opinion previously filed April 28, 2008, and published at 523 F.3d 1071, is withdrawn, and the Opinion filed with this Order is filed in its stead.

OPINION

Guillermo Aguila-Montes De Oca ("Aguila-Montes") appeals the sentence imposed upon him for attempting to re-enter the United States following deportation, in violation of 8 U.S.C. § 1326. Aguila-Montes challenges the district court's sixteen-level sentence enhancement resulting from the court's determination that his prior conviction for first degree residential burglary, in violation of section 459 of the California Penal Code, constituted a crime of violence under section 2L1.2(b)(1)(A) of the United States Sentencing Guidelines ("Guidelines").*fn1 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We conclude that Aguila-Montes's prior California burglary conviction did not constitute a crime of violence under the Guidelines, and remand to the district court to impose a sentence without that sixteen-level enhancement.

I. Background

Aguila-Montes, a Mexican citizen, queued up at the San Ysidro Point of Entry on July 5, 2004. Customs and Border Protection officers arrested him after verifying by computer that he was a deported alien. The government charged him with violating 8 U.S.C. ยง 1326 by attempting to re-enter the United States. A jury convicted him, and the ...


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