201 F. App'x 466

UNITED STATES of America, Plaintiff—Appellee, v. Israel GOMEZ-ALVAREZ, Defendant—Appellant.

No. 05-10632.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 2006.*

Filed Sept. 13, 2006.

Daniel Jon Santander, AUSA, USTU— Office of the U.S. Attorney, Tucson, AZ, for Plaintiff — Appellee.

David Taylor Shannon, Esq., FPDAZ— Federal Public Defender’s Office, Tucson, AZ, for Defendant — Appellant.

Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.

MEMORANDUM **

The parties agree that the crime of false imprisonment under Cal.Penal Code § 236 is not a categorical crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217 n. 5 (9th Cir.2005). Therefore, the district court plainly erred in relying solely on the facts recited in the presentence report to determine that Gomez-Alvarez’s conviction for false imprisonment under CaLPenal Code § 236 constituted a crime of violence, rather than using the modified categorical approach articulated in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Hernandez-Hernandez, 431 F.3d at 1217.

Because “there is a plausible prospect that [Gomez-Alvarez’s sentence] might have been different” had the district court engaged in a ... modified categorical analysis to determine whether his false imprisonment conviction constituted a crime of violence, we vacate Gomez-Alvarez’s sentence and remand for resentencing on an open record. See United States v. Pimen*467tel-Flores, 339 F.3d 959, 968-69 (9th Cir. 2003).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

United States v. Gomez-Alvarez
201 F. App'x 466

Case Details

Name
United States v. Gomez-Alvarez
Decision Date
Sep 13, 2006
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201 F. App'x 466

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United States

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