Fowles

MEMORANDUM **

Ty Fowles appeals from the 300-month sentence imposed following his guilty-plea conviction for racketeering and conspiracy to commit racketeering activities in violation of 18 U.S.C. § 1962 . We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand for resentencing.

Fowles contends that the district court improperly considered a 1999 conviction for violating California Penal Code § 69 as a crime of violence in determining that he was eligible for sentencing as a career offender pursuant to United States Sentencing Guideline § 4B1.1. Fowles concedes that he meets all of the requirements for the increased sentencing under the career offender provision, except for the requirement that he have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1.

California Penal Code § 69 creates criminal liability for “[ejvery person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty.” The Sentencing…

dissenting:

I respectfully dissent. Under the modified categorical approach, a common sense reading of the relevant judicially noticeable documents of Fowles’s conviction — the charging document and the transcript of the plea proceeding — establish the requisite degree of intent to support sentencing Fowles under the career offender provision. Fowles pled guilty to a criminal complaint charging that he:

(emphasis added). Fowles conceded he “forcibly resisted the officers in pulling him off the area he was trying to jump from.” In doing so, he injured an officer.

The relevant documents thus show that Fowles actively and intentionally used physical force against the correctional officers while resisting their efforts to restore order to the disturbance he had begun in the cellblock. Nothing in the documents *716 suggests anything but intentional misbehavior. See U.S.S.G. § 4B1.2(a)(l). Unlike the majority, I refuse to parse “willfully,” “knowingly,” and “forcibly” out of Fowles’s guilty plea. The district court correctly found that Fowles’s violation of Penal Code section 69 is a crime of violence under the modified categorical approach enunciated in Taylor v. United States, 495…