Gonzalez-Aparicio
United States v. Gonzalez-Aparicio
Opinion
Lead Opinion
Cowen, J.
Opinion by Judge COWEN; Dissent by Judge TASHIMA.
OPINION
Isaías Gonzalez-Aparicio appeals from the sentence imposed by the District Court following his guilty plea to one count of attempted reentry after deportation. Reviewing for plain error, we will affirm.
*422 I.
Gonzalez-Aparicio was born in Mexico on January 24, 1973. According to the presentence investigation report (“PSR”) dated September 23, 2009, he moved to the United States with his family when he was still a teenager.
In “Part B — Defendants’ Criminal History,” the PSR stated that Gonzalezr-Aparicio was arrested on August 18, 1999, at age 26, and then convicted on the following charge: “Count 1 — Sexual Conduct with a Minor (felony) Arizona Revised Statutes § 13-1405, Maricopa County Superior Court, Phoenix, CR19992981.” (PSR ¶ 21.) He originally received the following sentence: “02/02/2000 — 10 years probation, 1 year jail as condition of probation (credit for 167 days time served).” (Id.) The sentence was then amended: “02/24/2000— Sentence amended; condition imposing 1 year in jail vacated and replaced by condition imposing 167 days in jail.” (Id.) Gonzalez-Aparicio was deported to Mexico on February 23,…
Dissenting Opinion
Tashima, J.
dissenting:
Today the majority announces a new and startling method of selecting a stan *434 dard of review, one in which the panel, at its sole option, selects which standard of review to apply. Because this standard of review is no standard at all, I respectfully dissent. If the majority had applied our long-established precedents, it would be required to reverse and remand for resentencing.
I.
This is a sentencing case. As in all sentencings, the district court was first required to calculate the correct advisory guidelines sentencing range. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). It did not do so. Defendant-appellant Gonzalez-Aparicio (“Gonzalez”) pled guilty to one count of illegal entry under 8 U.S.C. § 1326 (b)(2). The sentencing court applied a 16-point “crime of violence” enhancement, U.S.S.G. § 2L1.2(b)(l)(A)(ii), that raised Gonzalez’s total offense level from 6 to 22. 1 At Criminal History Category III, this raised his corresponding Guidelines range from 2-8 months to 51-63 months. The district court imposed a sentence of 51 months.