Palacios-Delao

MEMORANDUM **

Francisco Javier Palacios-Delao appeals from the 77-month sentence imposed following his jury trial conviction for unlawful reentry by a deported, removed and/or excluded alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand the sentence.

Palacios-Delao contends that the district court plainly erred when it determined that his prior conviction constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). We agree.

It was plain error for the district court to rely solely upoh the factual description of the prior conviction in the presentence report (“PSR”) in finding that the offense qualified as a crime of violence. See United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.20’03). As was the case in Pimentel-Flores , the PSR in this case did not list the statute of conviction, and the government did not provide judicially-noticeable evidence to establish the basis for appellant’s conviction. Id.

Appellant’s substantial rights were adversely affected by this error. Appellant’s prior conviction did not qualify as a crime of violence under the categorical approach set forth in Taylor v. United…