Hernandez-Hernandez

concurring in part and dissenting in part:

I concur in all of Judge Tallman’s thoughtful majority opinion except for that portion of the analysis that applies the “modified categorical approach” to Hernandez’s prior conviction, resulting in a 16-level increase in Hernandez’s offense level. As to that part only, I respectfully dissent. The majority opinion, in my view, misreads the recent Supreme Court decision Shepard v. United States.

Although I suspect that Hernandez’s prior crime (the van incident described in the majority’s footnote 2) deserves a 16-level enhancement, I cannot agree with the majority’s analysis that it was legally permissible to give him one in this case. My objection to the majority opinion on this point is that it expands the modified categorical approach to the point where it is no longer categorical at all.

In Taylor v. United States, the Supreme Court expressed its approval of what was then the uniform approach of the circuit courts for determining whether prior crimes qualified as aggravators under 18 *1223 U.S.C. § 924 (e). 2 The Court approved of the circuit courts’ view that “ § 924(e) mandates a formal categorical approach, looking only to the…

Misael Hernandez-Hernandez appeals his sentence following a guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326 . He challenges a 16-level enhancement for reentry after deportation pursuant to a “crime of violence,” contending that (1) the enhancement violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the government did not charge him with being an aggravated felon, and (2) his prior felony convictions do not qualify as “crimes of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also challenges a one-point criminal history score increase *1215 for a misdemeanor conviction for threats to do harm, contending that this prior conviction should have been excluded under U.S.S.G. § 4A1.2(c)(l). We previously-affirmed Hernandez-Hernandez’s conviction and sentence in United States v. Hernandez-Hemandez, 387 F.3d 799 (9th Cir. 2004). The Supreme Court vacated that judgment and remanded for further consideration in light of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Ramos-Birrueta v. United States, — U.S. -, 125 S.Ct. 1427 , 161 L.Ed.2d 185 (2005).

We again hold that the district court…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 02-30429 Plaintiff-Appellee, v.  D.C. No.

CR-02-02127-RHW

MISAEL HERNANDEZ-HERNANDEZ,

OPINION

Defendant-Appellant.  On Remand from the United States Supreme Court

Filed December 16, 2005

Before: Andrew J. Kleinfeld, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman; Partial Concurrence and Partial Dissent by Judge Kleinfeld

16511 UNITED STATES v. HERNANDEZ-HERNANDEZ 16515

COUNSEL

Rebecca L. Pennell, Federal Defenders of Eastern Washing- ton and Idaho, Yakima, Washington, for the defendant- appellant.

Jane M. Kirk, Assistant United States Attorney, Yakima, Washington, for the plaintiff-appellee.

OPINION

TALLMAN, Circuit Judge:

Misael Hernandez-Hernandez appeals his sentence follow- ing a guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. He challenges a 16-level enhancement for reentry after deportation pursuant to a “crime of violence,” contending that (1) the enhancement violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because the government did not…