United States v. Mario Aguirre-Contreras

MEMORANDUM

In these consolidated appeals, Mario Aguirre-Contreras appeals from the 60-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326 . He also appeals the revocation of his supervised release and the sentence imposed upon revocation. We have jurisdiction under 28 U.S.C. § 1291 . We affirm the revocation of Aguirre-Contreras’s supervised release, but vacate the sentences imposed upon revocation and upon his conviction for illegal reentry and remand for resentencing.

Aguirre-Contreras contends that the district court erred in applying a 16-level enhancement to his sentence under U.S.S.G. § 2L1.2(b), based on his prior attempted burglary conviction under Arizona Revised Statutes § 13-1507. Contrary to the government’s contention, this argument has not been waived. See United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (en banc).

As we have previously held, Arizona burglary does not categorically match the generic federal definition. See United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir.1997). Therefore, whether Aguirre-Contreras’s prior conviction qualifies as a crime of violence…