United States v. Urbano Castillo-Marin

I. BACKGROUND

On February 5, 2010, Castillo-Marin, a citizen of Mexico, was arrested by officers of the Las Vegas Metropolitan Police Department for driving while intoxicated. Agents of the Immigration and Customs Enforcement subsequently arrested him, and on March 3, 2010, Castillo-Marin was indicted and charged with willfully being unlawfully in this country in vio- lation of 8 U.S.C. § 1326(a) after being previously arrested and deported, removed, and/or excluded. He pled guilty to the one count indictment without a plea agreement.

A Presentence Investigation Report (“PSR”) was prepared in anticipation of the sentencing hearing. The PSR calculated the base offense level at 8 pursuant to U.S.S.G. § 2L1.2(a), but recommended a 3-level reduction for acceptance of responsibility and a 16-level enhancement for his prior depor- tation after a felony conviction for a crime of violence accord- ing to Section 2L1.2(b)(1)(A). The PSR stated that the enhancement was based on Castillo-Marin’s prior conviction for “Attempted Assault 2nd Degree (Felony, 120.10-110), Supreme Court of New York, Queens County, Case No. 98Q991614.”

It also provided the following narrative: “According…

concurring in the result:

The defense did not object at any time to the statement in the Presentence Report (PSR) that Urbano Castillo-Marin’s prior conviction in New York State Court was for a crime of violence for sentencing purposes. Consequently, we review for plain error. See United States v. Portillo-Mendoza, 273 F.3d 1224, 1227 (9th Cir.2001).

Plain error occurs when a judge commits error that is so obvious that a competent judge should be able to avoid it without any party bringing the matter to the judge’s attention. See United States v. Nguyen, 565 F.3d 668, 681 (9th Cir.2009). *928 “Reversal on the basis of plain error is an exceptional remedy ...” United States v. Lo, 447 F.3d 1212, 1228 (9th Cir.2006). “If an error is not clear or obvious from the record, the defendant’s failure to object is fatal....” United States v. Brigham, 447 F.3d 665, 669 (9th Cir.2006).

The facts of this case indisputably reflect that the PSR documented the commission of a prior crime of violence by Castillo-Marin. The facts of this case also indisputably reflect that Castillo-Marin in no way objected to the characterization of his prior conviction as a crime of violence.

I concur in the…

Opinion by Judge TIMLIN; Concurrence by Judge RAWLINSON.

OPINION

Defendant Urbano Castillo-Marin (“Castillo-Marin”) appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . In particular, Castillo-Marin challenges the district court’s application of U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously committed a crime of violence. He contends that the district court committed plain error by relying solely on the PSR’s characterization of his prior conviction. For the reasons set forth below, we vacate the sentence and remand for resentencing.

*918 I. BACKGROUND

On February 5, 2010, Castillo-Marin, a citizen of Mexico, was arrested by officers of the Las Vegas Metropolitan Police Department for driving while intoxicated. Agents of the Immigration and Customs Enforcement subsequently arrested him, and on March 3, 2010, Castillo-Marin was indicted and charged with willfully being unlawfully in this country in violation of 8 U.S.C. § 1326 (a) after being previously arrested and deported, removed, and/or excluded. He pled…