Ordaz-Chavez

MEMORANDUM **

Appellant Saul Ordaz-Chavez pled guilty to violating 8 U.S.C. § 1326 (a), which prohibits reentry by a deported alien. The district court sentenced him to forty-one months in custody and three years of supervised release. Ordaz-Chavez appeals his sentence. We vacate his sentence and remand to the district court for resentencing.

At sentencing, the district court followed the recommendation of the probation department’s presentence report (“PSR”) that, pursuant to United States Sentencing Guidelines § 2L1.2(b)(l)(C), Ordaz-Chavez’s offense level be enhanced eight levels on the basis of a prior aggravated felony conviction. The PSR based the recommended enhancement on Ordaz-Chavez’s April 1991 conviction for commercial burglary in the second degree, in violation of California Penal Code section 459.

At sentencing, Ordaz-Chavez argued, and the court agreed, that violations of California Penal Code section 459 are not aggravated felonies under the categorical approach set forth in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). See Ye v. INS, 214 F.3d 1128, 1132-33 (9th Cir.2000) (holding that violations of section 459 are not…