Sandoval-Gutierrez

MEMORANDUM *

Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), fourth-degree assault in Washington does not qualify as a crime of violence as that term is defined in 18 U.S.C. § 16 (a). Under Washington law, it is possible to commit fourth-degree assault through an unlawful touching that does not involve significant physical force. See State v. Hall, 104 Wash.App. 56 , 14 P.3d 884, 889 (Wash.Ct.App.2000). Consequently, that crime is not categorically a crime of violence. United States v. Belless, 338 F.3d 1063, 1068 (9th Cir.2003). Under the modified categorical approach, the information, plea agreement, and judgment in the record do not exclude the possibility that Sandoval-Gutierrez’s guilty plea to fourth-degree assault was for conduct that did not involve significant physical force. We therefore conclude that Sandoval-Gutierrez’s prior guilty plea did not constitute a crime of violence under either the categorical or the modified categorical approach, and that the § 2L1.2(b)(1)(C) enhancement was improperly applied.

The district court also erred in adding one point to Sandoval-Gutierrez’s…