Lopez-Caballero

MEMORANDUM *

Daniel Lopez-Caballero (“Lopez-Caballero”) was convicted of being a deported *383 alien found in the United States, in violation of 8 U.S.C. § 1326 . In determining Lopez-Caballero’s sentence, the district court treated his prior conviction for grand theft of a vehicle, in violation of California Penal Code section 487h(a), as an “aggravated felony” and accordingly enhanced his sentence by eight levels pursuant to the United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(C) (2002). 1 Lopez-Caballero contends that the district court erred by treating his prior conviction as an “aggravated felony.” We review for plain error 2 and reverse.

I.

Lopez-Caballero was convicted of being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . The relevant sentencing provision for this crime is U.S.S.G. § 2L1.2, which allows for a sentencing enhancement if a defendant previously has been convicted of an “aggravated felony.” See U.S.S.G. § 2L1.2(b)(l). To determine whether Lopez-Caballero’s prior conviction was an “aggravated felony,” we apply the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109…

dissenting.

I must respectfully dissent from the decision to reverse and to remand for resentencing. The majority’s conclusion that we cannot determine under the modified categorical approach whether or not the defendant was convicted of an aggravated felony is flatly inconsistent with our decision in United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002).

The issue in Velasco-Medina was whether or not a prior burglary conviction in California state court was an aggravated felony for purposes of sentencing in subsequent federal proceedings. Id. at 850-53 . Under the modified categorical approach, we concluded that the conviction qualified as an aggravated felony, for two reasons: First, count one of the information set out the generic elements of burglary. Id. at 852 . Second, the abstract of judgment indicated that the defendant pled guilty to count one of the information. We held that “[b]y pleading guilty to Count One, Velasco-Medina admitted the facts alleged therein.” Id. (quoting United States v. Harris, 108 F.3d 1107, 1109 (9th Cir.1997) (“[A] guilty plea conclusively proves the factual allegations contained in the indictment.”), and United States v. Broce, 488 U.S.…