United States v. Miguel Angel Gonzalez-Tamariz

Miguel Angel Gonzalez Tamariz appeals his sentence of 67 months imprisonment for unlawful reentry into the United States following deportation and an “aggravated felony” conviction, in violation of 8 U.S.C. § 1326 (a). He challenges the classification of his prior Nevada conviction as an aggravated felony warranting a 16-level sentencing enhancement because Nevada state law classifies the conviction as a gross misdemeanor for which one year is the maximum sentence. Because Gonzalez’s offense of battery causing substantial bodily harm meets the federal definition of an aggravated felony regardless of its state law label and because the federal statute plainly provides that a crime of violence is an aggravated felony when the term of imprisonment is at least one year, the district court did not err in applying the 16-level enhancement. Gonzalez’s third, Apprendi-based, claim is foreclosed by our decision in Echavarria-Escobar. Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000); United States v. Echavarria-Escobar, 270 F.3d 1265, 1271 (9th Cir.2001). We have juris *1170 diction pursuant to 28 U.S.C. § 1291 , and we affirm.

I. BACKGROUND

Gonzalez does not…

Dissenting:

I respectfully dissent. There is no case in this court holding that a crime for which the maximum sentence is one year, rather than more than a year, can be an aggravated felony under 8 U.S.C. § 1101 (a)(43), and I do not believe that we should so hold now.

United States v. Corona-Sanchez, 291 F.3d 1201 , 1210 n. 10. (9th Cir.2002) expressly left the question open. 1 The other *1172 ease relied upon by the majority, United States v. Yanez-Saucedo, 295 F.3d 991 , 996 n. 4 (9th Cir.2002), merely noted that a crime for which the defendant was sentenced to nine months in prison could not be an aggravated felony; Yanez-Saucedo did not need to address whether a crime with a maximum sentence of exactly one year could qualify as an aggravated felony and did not do so. Further, although both United States v. Machiche-Duarte, 286 F.3d 1153 (9th Cir.2002), and Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir.2002) upheld an aggravated felony enhancement based on crimes in which the sentence actually imposed equaled exactly one year, in neither case did the alien challenge the finding of an aggravated felony based on the length of the maximum sentence attached to the crime.

I do…

310 F.3d 1168 UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel GONZALEZ-TAMARIZ, Defendant-Appellant. No. 00-10542. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 13, 2001. Submission Vacated September 24, 2001. Filed November 18, 2002. As Amended on Denial of Rehearing and Rehearing En Banc January 13, 2003. * Ronald C. Rachow, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee. Donald C. Gish, Reno, NV, for the defendant-appellant. Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CR-00-0052-DWH(VPC). Before: HALL, WARDLAW, and BERZON, Circuit Judges. WARDLAW, Circuit Judge. 1 Miguel Angel Gonzalez Tamariz appeals his sentence of 57 months imprisonment for unlawful reentry into the United States following deportation and an "aggravated felony" conviction, in violation of 8 U.S.C. § 1326 (a). He challenges the classification of his prior Nevada conviction as an aggravated felony warranting a 16-level sentencing enhancement because Nevada state law classifies the conviction as a gross misdemeanor for which one year is the maximum sentence.…