United States v. Juan Jose Vidal

Juan Jose Vidal appeals from his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . Vidal challenges the eight-level enhancement to his sentence resulting from the district court’s conclusion that his conviction for the unlawful taking of a vehicle, in violation of California Vehicle Code § 10851(a), constitutes an aggravated felony under United States Sentencing Guideline § 2L1.2(b)(1)(C). He also argues that Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), precludes resort to the modified categorical approach to determine whether the defendant was previously convicted of conduct that would constitute an aggravated felony under federal law. Finally, in a Fed. R.App. P. 28(j) letter, Vidal asks for his sentence to be vacated and remanded for reconsideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

We conclude that Vidal was convicted of an aggravated felony. Moreover, Blakely does not undermine Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), or our own authority embracing the modified categorical approach. Therefore, the…

concurring in part and dissenting in part:

I respectfully dissent from the majority’s holdings that California Vehicle Code § 10851(a) categorically qualifies as an aggravated felony “theft offense” for sentencing, and that Vidal’s conviction in fact qualifies under the modified categorical approach as a predicate conviction for sentence enhancement in this case. Accordingly, I would reverse the district court’s imposition of the enhancement, vacate Vi *1018 dal’s sentence, and remand for resentenc-ing.

A prior conviction categorically qualifies as a predicate offense for sentence enhancement if the full range of conduct covered by the statute of conviction falls within the generic federal-sentencing definition. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002); accord Taylor v. United States, 495 U.S. 575, 599-602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990); United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc). However, if such a statute is broader than the generic offense, ie., if it criminalizes both conduct that falls within the generic definition and conduct that does not, the statute of conviction cannot qualify categorically for enhancement…

426 F.3d 1011 UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose VIDAL, Defendant-Appellant. No. 04-50185. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 9, 2005. Submission Vacated and Deferred February 22, 2005. Resubmitted and Filed October 24, 2005. COPYRIGHT MATERIAL OMITTED Siri Shetty, San Diego, CA, for the defendant-appellant. Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-03-01178-1-JTM. Before: BROWNING, MAGILL, * and RYMER, Circuit Judges. RYMER, Circuit Judge. 1 Juan Jose Vidal appeals from his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . Vidal challenges the eight-level enhancement to his sentence resulting from the district court's conclusion that his conviction for the unlawful taking of a vehicle, in violation of California Vehicle Code § 10851(a), constitutes an aggravated felony under United States Sentencing Guideline § 2L1.2(b)(1)(C). He also argues that Blakely v.…