Milton Lomeli-Capetillo v. Eric Holder, Jr. , 611 F. App'x 412 ( 2015 )

FILED
UNITED STATES COURT OF APPEALS JUL 21 2015
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MILTON LOMELI-CAPETILLO, No. 10-70944
Petitioner, Agency No. A037-429-761
v.
ORDER
LORETTA E. LYNCH, Attorney General,
Respondent.
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Lomeli-Capetillo's petition for panel rehearing is granted.
The memorandum disposition filed on January 29, 2015, is withdrawn. A
replacement memorandum disposition is being filed concurrently with this order.
Lomeli-Capetillo's petition for rehearing en banc is denied as moot.
Any petition for rehearing of the replacement memorandum disposition must
be filed within 45 days of the filing date of this order.
FILED
NOT FOR PUBLICATION JUL 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON LOMELI-CAPETILLO, No. 10-70944
Petitioner, Agency No. A037-429-761
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Milton Lomeli-Capetillo, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals' order dismissing his appeal from an
immigration judge's removal order. We have jurisdiction under 8 U.S.C. y 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo questions of law. Medina-Lara v. Holder, 771 F.3d 1106,
1111 (9th Cir. 2014).
Under the modified categorical approach, the government has not met its
burden of proving by clear and convincing evidence that Lomeli-Capetillo was
convicted of transportation of methamphetamine. See id. at 1113. The complaint
charged Lomeli-Capetillo with six counts of misconduct. Reviewing the abstract
of judgment, it seems that Lomeli-Capetillo pleaded guilty to only two of those
counts. However, reviewing the record, it is unclear whether the counts of the
complaint match the counts in the abstract of judgment. It is further unclear to
which counts Lomeli-Capetillo pleaded guilty. See id. at 1114-15.
We therefore grant the petition for review and remand for further
proceedings.
PETITION FOR REVIEW GRANTED; REMANDED.
2 10-70944