Ortiz-Montano

MEMORANDUM

Jose Ortiz-Montano appeals from the 51-month sentence imposed following his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326 (a), enhanced by 8 U.S.C. § 1326 (b)(2). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Ortiz-Montano contends that the district court committed plain error when it imposed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on his 1985 guilty-plea conviction for burglary under California Penal Code § 459. He argues that the government did not present sufficient evidence from appropriate judicial records to prove that his prior conviction qualified as a crime of violence. The district court did not apply the modified categorical approach to analyze whether Ortiz-Montano’s prior conviction qualified for the 16-level sentencing increase. See United States v. Aguila-Montes de Oca, 655 F.3d 915, 944-46 (9th Cir.2011) (en banc).

Since Ortiz-Montano has been deported, he cannot be resentenced unless he returns to the United States. Thus, we affirm the sentence without prejudice to an application by Ortiz-Montano to the district court to vacate his sentence and re-sentence him…