Hernandez-Hernandez

Misael Hernandez-Hernandez appeals his sentence following a guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326 . He challenges a 16-level enhancement for reentry after deportation pursuant to a “crime of violence,” contending that (1) the enhancement violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the government did not charge him with being an aggravated felon, and (2) his prior felony convictions do not qualify as “crimes of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also challenges a one-point criminal history score increase for a misdemeanor conviction for threats to do harm, contending that this prior conviction should have been excluded under U.S.S.G. § 4A1.2(c)(l). We hold that the district court properly counted the pri- or convictions, and we affirm on all grounds.

I

On July 23, 2002, the grand jury charged Hernandez-Hernandez with one count of illegal re-entry after deportation in violation of 8 U.S.C. § 1326 . The indictment alleged that he had been deported on or about July 9, 1997, and that he was found thereafter in the United States without permission on June 30, 2002. The indictment…

concurring in part and dissenting in part:

I concur in all of Judge Tallman’s thoughtful majority opinion except for part III, which applies the “modified categorical approach” to Hernandez’s prior conviction, resulting in a 16-level increase in Hernandez’s offense level. As to that part, I respectfully dissent.

Although I suspect that Hernandez’s prior crime (the van incident described in the majority’s footnote 2) deserves a 16-level enhancement, I cannot agree with the majority’s analysis that it was legally permissible to give him one in this case. My objection to the majority opinion on this point is that it expands the modified categorical approach to the point where it is no longer categorical at all. Today’s majority opinion is the first in any circuit, so far as I know, to treat a lawyer’s memorandum filed in a prior case as a cognizable source of facts for determining, under the modified categorical approach, whether a prior conviction was a crime of violence. In Huerta-Guevara v. Ashcroft, we pointed out that “we have never considered whether statements in a brief, or judicial admissions, are the type of documentation that a court may consider when using the modified…