United States v. Mario Portillo-Mendoza

Appellant Mario Portillo-Mendoza was arrested after illegally crossing the border near Yuma, Arizona. He was charged with illegally entering, attempting to enter, and being found in the United States after a prior deportation in violation of 8 U.S.C. § 1326 (a). After a jury found him guilty, his sentence was enhanced from 18 to 84 months on the basis of his having previously committed “aggravated felonies” — five convictions for driving under the influence (DUI), including one conviction for the felony “DUI with priors.” 8 U.S.C. § 1326 (b); Cal. Veh.Code §§ 23152, 23550; CaLPenal Code § 17. He appeals his conviction and his sentence. We find that none of his prior convictions was an “aggravated felony” as defined by 8 U.S.C. § 1101 (43)(F) and 18 U.S.C. § 16 and remand for sentencing.

Portillo-Mendoza was first deported from the United States in 1990 following an illegal reentry in 1989. Between 1994 and 1999, he was convicted of five counts of driving under the influence under California Vehicle Code § 23152. The fifth time he was convicted, he was charged with the felony “DUI with priors.” See Cal. Veh.Code § 23550; Cal.Penal Code § 17.

While Appellant was in state prison,…