United States v. Misael Hernandez-Hernandez

ORDER

The Opinion, and the Partial Concurrence and Partial Dissent, filed on June 30, 2004, have, been amended. With these amendments, Judges Gould and Tallman have voted to deny the petition for panel rehearing and to deny the petition for rehearing en banc. Judge Kleinfeld has voted to grant the petition for panel rehearing and to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

*802 The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing and rehearing en banc will be entertained.

OPINION

Misael Hernandez-Hernandez appeals his sentence following a guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326 . He challenges a 16-level enhancement for reentry after deportation pursuant to a “crime of violence,” contending that (1) the enhancement violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the government did not charge him with being an aggravated felon, and (2) his prior felony convictions do…

concurring in part and dissenting in part:

I concur in all of Judge Tallman’s thoughtful majority opinion except for part Ill, which applies the “modified categorical approach” to Hernandez’s prior conviction, resulting in a 16-level increase in Hernandez’s offense level. As to that part, I respectfully dissent.

Although I suspect that Hernandez’s prior crime (the van incident described in the majority’s footnote 2) deserves a 16-level enhancement, I cannot agree with the majority’s analysis that it was legally permissible to give him one in this case. My objection to the majority opinion on this point is that it expands the modified categorical approach to the point where it is no longer categorical at all. Today’s majority opinion is the first in any circuit, so far as I know, to treat a lawyer’s memorandum filed in a prior case as a cognizable source of facts for determining, under the modified categorical approach, whether a prior conviction was a crime of violence. In Huerta-Guevara v. Ashcroft, we pointed out that “we have never considered whether statements in a brief, or judicial admissions, are the type of documentation that a court may consider when using the modified…

387 F.3d 799 UNITED STATES of America, Plaintiff-Appellee, v. Misael HERNANDEZ-HERNANDEZ, Defendant-Appellant. No. 02-30429. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 2, 2003. Filed June 30, 2004. Amended October 27, 2004. COPYRIGHT MATERIAL OMITTED Rebecca L. Pennell, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the defendant-appellant. Jane M. Kirk, Assistant United States Attorney, Yakima, Washington, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, U.S. District Judge, Presiding. D.C. No. CR-02-02127-RHW. Before: KLEINFELD, GOULD, and TALLMAN, Circuit Judges. ORDER 1 The Opinion, and the Partial Concurrence and Partial Dissent, filed on June 30, 2004, have been amended. With these amendments, Judges Gould and Tallman have voted to deny the petition for panel rehearing and to deny the petition for rehearing en banc. Judge Kleinfeld has voted to grant the petition for panel rehearing and to grant the petition for rehearing en banc. 2 The full court has been advised of the petition for rehearing en banc and no judge has requested a…