United States v. Javier Velasquez-Reyes, A.K.A. Javier Alvarado-Hernandez

Defendant Javier Velasquez-Reyes appeals from the order sentencing him to 48 months of imprisonment on the ground that the district court erred in imposing a 16-level enhancement to his sentence based on a prior conviction for second degree arson under Washington law. He contends that second degree arson is not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We affirm the imposition of the 16-level enhancement because we conclude that second degree arson under Washington law is categorically a crime of violence. Mr. Velasquez-Reyes was sentenced under the mandatory provisions of the Sentencing Guidelines. Accordingly, we remand in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

I

Mr. Velasquez-Reyes pled guilty to reentering the United States illegally after having been deported. At sentencing, he received a 16-level enhancement based on his prior conviction under Washington law for second degree arson. This prior conviction was not alleged in the indictment.

Mr. Velasquez-Reyes contends that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) overruled Almendarez-Torres v. United States, 523 U.S. 224 , 118…