Grajeda

I. Factual Background

Grajeda, a Mexican citizen, was indicted on January 31, 2007, on one count of illegal reentry in violation of 8 U.S.C. § 1326. Grajeda pled guilty before a magistrate judge, and, on August 20, 2007, the district court accepted his plea.

A probation officer prepared and submitted a Presentence Report (“PSR”) for the court’s consideration. The PSR out- lined a lengthy criminal record, including a 1996 conviction for assault with a deadly weapon or by means likely to pro- duce great bodily injury, in violation of California Penal Code section 245(a)(1). The report calculated an advisory guide- lines range of seventy to eighty-seven months, and recom- mended a sentence of seventy-eight months. The guidelines calculation relied upon application of a sixteen-level enhance- ment to Grajeda’s offense level based on a determination that Grajeda’s prior conviction under California Penal Code sec- tion 245(a)(1) was a crime of violence. Grajeda objected to the PSR on the ground that the statutory maximum for illegal reentry was two years, and argued that his prior convictions could not be used to sentence him beyond that maximum because they were not alleged in the…