Alvarenga-Martinez

United States v. Alvarenga-Martinez

Good Law
21 F. App'x 677
United States Court of Appeals for the Ninth CircuitOctober 24, 2001No. 01-10143; D.C. No. CR-00-00279-LDGCalifornia272 words

Opinion

Lead Opinion

MEMORANDUM **

Leonel Alvarenga-Martinez appeals the 57-month sentence imposed by the district *678 court following his guilty-plea conviction for unlawful reentry after deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part and reverse and remand in part.

Alvarenga-Martinez contends that there was insufficient evidence that his prior Nevada conviction for sale of a controlled substance was an aggravated felony for purposes of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Because Alvarenga-Martinez did not object to the district court’s use of his prior conviction to apply the enhancement, we review for plain error. See United, States v. Marin-Cuevas, 147 F.3d 889, 892-93 (9th Cir.1998).

The government here concedes, and we concur, that the district court plainly erred in applying the enhancement where the prior conviction does not facially qualify as an aggravated felony. United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001). Accordingly, this case is remanded to the district court for further development of the record and resentencing.

Finally, Alvarenga-Martinez’s Apprendi claim is…

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