Eretza-Flores

MEMORANDUM **

On December 1, 2005, Antonio EretzaFlores pled guilty to illegal re-entry in violation of 8 U.S.C. § 1326 (a) and assaulting and resisting or impeding a federal officer in violation of 18 U.S.C. § 111 (a) and (b), and 18 U.S.C. § 1114 . Applying § 2A2.2 of the United States Sentencing Guidelines (“U.S.S.G.”), the district court sentenced Eretza-Flores to thirty-eight months in prison and three years of supervised release. Eretza-Flores appeals his sentence. We vacate and remand for re-sentencing.

The district court was required to determine whether Eretza-Flores acted with intent to injure as part of its sentencing determination. See U.S.S.G. § 2A2.2 (2003). We conclude that the district court did not violate Federal Rule of Criminal Procedure 11 or Eretza-Flores’s due process rights by considering at sentencing evidence of Eretza-Flores’s intent.

Because Eretza-Flores’s intent impacts the base offense level calculation rather than the district court’s application of a sentencing enhancement, the district court properly applied a preponderance of the evidence standard rather than a clear and convincing standard in determining whether to sentence Eretza-Flores…