United States v. Francisco Armenta

MEMORANDUM

Defendant-Appellant Francisco Osuna Armenta (“Armenta”) appeals the sentence imposed by a district court following his plea of guilty to one count of illegal reentry of an alien in violation of 8 U.S.C. § 1326 . He challenges the court’s imposition of a sixteen level enhancement based upon its characterization of his prior state law conviction of unlawful imprisonment under Revised Code of Washington (“RCW”) § 9A.40.040 as a “crime of violence” within the meaning of United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii). “We review de novo whether a prior conviction constitutes a crime of violence under U.S.S.G. § 2L1.2.” United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir.2010).

Armenta argues that the district court erred in applying the modified categorical approach because RCW § 9A.40.040 lacks an element of the Guidelines crime of violence. He acknowledges that this argument is foreclosed by our recent decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011), in which we held that the modified categorical approach applies in both “broad element” and “missing element” cases, but he contends alternatively that…