Valenzuela-Hernandez

United States v. Valenzuela-Hernandez

Good Law
72 F. App'x 686
United States Court of Appeals for the Ninth CircuitAugust 18, 2003No. 02-10349; D.C. No. CR-01-01295-JMRCalifornia462 words

Opinion

Lead Opinion

MEMORANDUM **

Saul Valenzuela-Hernandez appeals his guilty plea conviction and 57-month sentence for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand.

Valenzuela-Hernandez contends that the pre-sentence report (“PSR”) was insufficient proof that his 1996 burglary conviction was a crime of violence for purposes of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). We review for plain error because Valenzuela-Hernandez raised no objection below. United States v. Jimenez, 258 F.3d 1120, 1123-25 (9th Cir.2001), cert. denied, 534 U.S. 1151 , 122 S.Ct. 1115 , 151 L.Ed.2d 1009 (2002).

The PSR described Valenzuela-Hernandez’s 1996 offense as “burglary in the second degree” but did not specify the statute of conviction or cite to judicially noticeable documents. Therefore, it was plain error to rely on the PSR alone. See Jimenez, 258 F.3d at 1126 ; United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc) (holding that PSR with only a recitation of the facts is insufficient evidence for purposes of determining whether a prior conviction merits…

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