Flores-Garcia

MEMORANDUM **

Federal prisoner Gilberto Flores-Garcia appeals his 77-month sentence following a guilty plea to being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we remand for resentencing.

Flores-Garcia contends that the district court erred in applying a 16-level increase, under U.S.S.G. § 2L1.2(b)(1)(A), for a crime of violence based upon Flores-Garcia’s 1999 Washington State conviction for residential burglary. We agree. To determine whether Flores-Garcia’s state conviction is a crime of violence, a court must use the categorical (or modified categorical) approach outlined in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). See United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990). This court has held that the statute under which Flores-Garcia was convicted — Wash. Rev.Code § 9A.52.025(1) — is not a crime of violence under the categorical approach, as it prohibits both conduct that does and does not qualify as a crime of violence. See United States v. Wenner, 351 F.3d 969, 972-73 (9th Cir.2003). Upon review of the record, it appears that the…