Balitan

MEMORANDUM **

Defendant Freddy Jose Balitan pled guilty to unlawful reentry after deportation in violation of 8 U.S.C. § 1326 . He appeals his sentence of 41 months in prison. The district court made extensive findings and then concluded:

Balitan raises four issues on appeal. The first issue is whether the district court erred in following the United States Sentencing Guidelines rather than 18 U.S.C. § 3553 (a) in determining the sentence to be imposed. It is clear from the statement quoted above that the district court properly followed 18 U.S.C. § 3553 (a) after considering the Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 259-60 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

The second issue presented is whether the district court properly considered Balitan’s conviction for voluntary manslaughter as a crime of violence justifying an enhancement of 16 levels under the Sentencing Guidelines. Balitan’s conviction for voluntary manslaughter under California Penal Code § 192 is a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A). United States v. Bonilla-Montenegro, 331 F.3d 1047, 1051 (9th Cir.2003). The district court could not consider a collateral…