United States v. Jorge Rodriguez-Rodriguez, United States of America v. Jorge Rodriguez-Rodriguez

ORDER

The Opinion filed April 20, 2004, and appearing at 364 F.3d 1142 (9th Cir.2004) is amended as follows. Replace Section D with the following:

D. Sentencing

With these amendments, the panel as constituted above has voted to deny the petition for rehearing. Judges Trott and Callahan have voted to deny the petition for rehearing en banc, and Judge Hall so recommends.

The fall court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

OPINION

Jorge Rodriguez-Rodriguez (“Rodriguez”) was convicted of one count of illegal ’entry under 3 U.S.C. § 1326 and sentenced to twenty-one months in custody. The United States (“government”) appeals the sentencing judge’s application of United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(l)(A), arguing that Rodriguez’s prior burglary constitutes a “crime of violence.” Rodriguez cross-appeals, arguing that (1) the government’s failure to allege voluntary entry in the indictment renders it insufficient, (2) the government used statements that were taken in violation of Miranda v.…