United States v. Gilberto Pimentel-Flores

This appeal requires an interpretation of the 2001 amendment to United States Sentencing Guideline § 2L1.2. The question is whether the term “crime of violence” as defined in the new guideline is limited to “aggravated felonies” within the meaning of 8 U.S.C. § 1101 (a)(43). Based on the plain meaning of the guideline and its application note, we hold that a “crime of violence” under the new guideline need not be an “aggravated felony” within the meaning of the statute to qualify for a 16- level enhancement. Notwithstanding, the proceedings below were flawed for relying solely on facts in the presentence investigation report rather than following the procedure under Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2148 , 109 L.Ed.2d 607 (1990), for determining whether defendant’s prior offense qualified as a “crime of violence.” The government should have supplied the necessary information before sentencing. Accordingly, remand for re-sentencing on an open record is required.

FACTS AND PROCEDURAL BACKGROUND

On February 12, 2002, Pimentel-Flores pled guilty, pursuant to a written plea agreement, to an indictment charging a violation of 8 U.S.C. § 1326 (a) for reentry after…