United States v. Facundo Acosta-Chavez

Facundo Acosta-Chavez appeals his thirty-month sentence of imprisonment for illegal reentry after deportation. Acosta-Chavez contends that the district court erred in deeming his 2005 Illinois conviction for Aggravated Criminal Sexual Abuse a “crime of violence” under United States Sentencing Guidelines § 2L1.2(b)(l)(A)(ii), which mandates a sixteen-level enhancement of his Sentencing Guidelines level. Acosta-Chavez contends that the alleged error was not harmless. He also seeks remand to a different district judge for resentencing.

Applying the Supreme Court’s recent decision in Descamps v. United States, — U.S.-, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013), we conclude that the district court erred in holding Acosta-Chavez’s crime to be a “crime of violence,” an error that resulted from the district court’s application of the modified categorical approach when it compared the elements of Acosta-Chavez’s offense with the elements of its federal analogue. This error was not harmless. We vacate Acosta-Chavez’s sentence, and remand to the original district judge for resentencing.

I

Following his 2005 guilty plea to Illinois Aggravated Criminal Sexual Abuse, Acosta-Chavez was…