United States v. Jose Emilio Cortez-Arias

Jose Emilio Cortez-Arias appeals from the 46-month prison sentence that the district court imposed for illegal re-entry into the United States after being deported, in violation of 8 U.S.C. § 1326 (a). The district court imposed a sixteen level increase in offense level pursuant to United States Sentencing Commission, Guidelines Manual (USSG), § 2L1.2(b)(l)(A), because it found that under our precedent in United States v. Weinert, 1 F.3d 889 (9th Cir.1993) (per curiam), Cortez-Arias’s prior conviction for shooting at an inhabited dwelling, in violation of California Penal Code section 246, was a conviction for a “crime of violence.”

Cortez-Arias contends that Weinert is not controlling because it involved an interpretation of a section of the Sentencing Guidelines containing a broader definition of “crime of violence.” Cortez-Arias further contends that his prior conviction was not for a “crime of violence” under § 2L1.2’s categorical approach because California Penal Code section 246 prohibits shooting at a dwelling, whether occupied or not, and the commentary to § 2L1.2 defines a “crime of violence” with respect to “physical force against the person of another.” USSG § 2L1.2…