U.S. v. RICARDO CESAR CONTRERAS-DE LA TORRE

Full title: UNITED STATES OF AMERICA, Plaintiff, v. RICARDO CESAR CONTRERAS-De La…

Court: United States District Court, S.D. California

Date published: Aug 23, 2010

Cr. No. 10-1194GT (S.D. Cal. Aug. 23, 2010)

Opinion

Cr. No. 10-1194GT.

August 23, 2010

ORDER

GORDON THOMPSON JR., Senior District Judge

The sole issue in this case is whether or not Mr. Contreras' prior state conviction for residential burglary under Californina Penal Code §§ 459/460 is a crime of violence under § 2L1.2(b)(1)(A)(ii). This is the precise issue before the en banc panel of the Ninth Circuit in the Aguilla-Montes case.United States v. Aguila-Montes De Oca, 594 F.3d 1080 (9^th Cir. 2010)

In Aguilla-Montes, the Ninth Circuit specifically stated that "consistent with our en banc decision in Navarro-Lopez v. Gonzales, we may not apply a modified categorical approach in this case because the state crime of which Aguilla-Montes was convicted lacks an element of the generic crime of the guidelines." (Citations omitted) Aguilla-Montes, 553 F.3d 1229, 1233 (9^th Cir. 2009). Like this case, Aguilla-Montes was convicted of residential burglary under California code § 459. However, since the Ninth Circuit could not employ the modified categorical approach and § 459 does not categorically match the generic definition of residential burglary, the Ninth Circuit held that Aguilla-Montes' sentence was improperly enhanced 16 levels. Id. at 1234. The holding in Aguilla-Montes, was based entirely on the reasoning and logic of Navarro-Lopez. The Ninth Circuit decided to rehear Aguilla-Montes en banc and ordered that the case not be cited.

In spite of the fact that this precise issue is before an en banc panel of the Ninth Circuit and is still undecided, defense counsel argues that this court should apply the reasoning ofUnited States v. Navarro-Lopez, 503 F.3d 1063 (9^th Cir. 2007) andUnited States v. Estrada-Espinoza, 546 F.3d 1147 (th Cir. 2008) to this case. This issue is better decided by the Ninth Circuit.

Additionally, both Navarro-Lopez and Estrada-Espinoza are cases where the defendant was appealing an Immigration Judge's final order of removal. They are not criminal cases involving interpretation of the guidelines like the present case or theAguilla-Montes case.

Finally, United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9^th Cir. 2005), which is directly on point, is still good law. In Rodriguez-Rodriguez, the defendant was convicted of residential burglary under California Penal Code §§ 459/460. The court applied the modified categorical approach because the state statute and generic definition for residential burglary did not match. However, the defendant did plead guilty to unlawfully entering the building. The Ninth Circuit held that since "Rodriguez's conviction included the unlawful entry requirement absent in California's statutory definition of burglary, his conviction meets the definition of `burglary of a dwelling' under Taylor and is, therefore, a `crime of violence' under the Sentencing Guidelines." Rodriguez-Rodriguez, 393 F.3d at 858. See also, Velasco-Medina, 305 F.3d 839, 852 (9^th Cir. 2002) (holding that a California burglary conviction was burglary under the modified categorical approach because the defendant pled guilty to unlawful entry.)

In this case, the Mr. Contreras did plead guilty to unlawful entry. At the last hearing Probation submitted a copy of his guilty plea which showed that Mr. Contreras pled to the "missing" element of unlawful entry. Since Rodriguez-Rodriguez andVelasco-Medina are still good law, the court may apply the modified categorical approach and Mr. Contreras' conviction for residential burglary is a crime of violence under the guidelines. Hence, the 16 level enhancement is appropriate. Accordingly, IT IS ORDERED that Mr. Contreras' Objection to the Presentence Report is DENIED. IT IS SO ORDERED.