United States v. Jose Moreno-Tobar

MEMORANDUM

Appellant Jose Moreno-Tobar (“Moreno”) pleaded guilty to illegal re-entry into the United States in violation of 8 U.S.C. § 1326 , and was sentenced to a term of 60 months in prison, to be followed by three years supervised release. On appeal, Moreno contends the district court erred in determining that his prior conviction under California Penal Code § 243(d) for battery constituted a “crime of violence,” thereby warranting a sixteen-level increase to his base offense level pursuant to § 2L1.2 of the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”). We agree and remand for resentencing.

Whether a prior conviction constitutes a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii) is a question of law that is subject to de novo review. United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.2009). The approach set forth in Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), governs the analysis of whether a defendant’s prior conviction satisfies the Guidelines definition of a crime of violence. United States v. Esparza-Herrera, 557 F.3d 1019, 1022 (9th Cir.2009) (per curiam). “Under this approach the state statute…