The opinion of the court was delivered by: Kleinfeld, Circuit Judge
On Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding D.C. No. 3:07-CR-03190-JAH-1
Submitted February 4, 2010*fn1 Pasadena, California
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Kleinfeld.
We address several sentencing issues, the most substantial of which is whether California solicitation to commit murder*fn2 is a crime of violence for purposes of a Guidelines enhancement.
Jose Raymundo Contreras-Hernandez was convicted after jury trial of being an alien found in the United States after a previous deportation.*fn3 The base offense level for this crime is 8,*fn4 but the Sentencing Guidelines impose a sixteen-level increase, to 24, if the alien's prior deportation followed a conviction for a felony that was a crime of violence.*fn5 This upward adjustment was imposed on Contreras-Hernandez, contributing to his sixty-three months of imprisonment. For his cri- minal history category of III, a base offense level of 8 generates six to twelve months of imprisonment, but a 24 generates sixty-three to seventy-eight months. In addition to the sentencing guidelines increase, Contreras-Hernandez's statutory maximum was increased from two years to twenty years because the solicitation of murder was deemed an aggravated felony.*fn6
Contreras-Hernandez had been convicted of soliciting the murder of his wife.*fn7 According to his sentencing memorandum, the person he had tried to hire to kill her turned out to be an undercover police informant. He had been sentenced to six years of imprisonment and had served two, when he was paroled and deported. A month later, the border patrol apprehended Contreras-Hernandez in California. His attorney said at sentencing that Contreras-Hernandez's wife had left their son with Contreras-Hernandez's brother and gone off to Georgia, and now Contreras-Hernandez's brother was unable to care for the boy, so Contreras-Hernandez was coming to the United States only to pick up his son and take him back to Mexico.
The district court treated the statutory maximum as twenty years, applied the guidelines adjustment for deportation after conviction for a crime of violence, and sentenced Contreras-Hernandez to the ...