United States v. Jorge Franco-Ibarra , 671 F. App'x 470 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10396
Plaintiff-Appellee, D.C. No. 2:14-cr-00173-JCM
v.
MEMORANDUM*
JORGE FRANCO-IBARRA, a.k.a.
Fernando Lomeli-Ibarra,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Jorge Franco-Ibarra appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
being a deported alien found unlawfully in the United States, in violation of 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
remand for resentencing.
In supplemental briefing, Franco-Ibarra contends that the district court erred
by applying a 16-level enhancement to his offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The presentence report (“PSR”) stated that Franco-Ibarra’s
prior conviction for coercion qualified as a crime of violence under U.S.S.G.
§ 4B1.1, a Guideline that is not applicable in this case and which defined “crime of
violence” differently than the relevant Guideline. Compare U.S.S.G. § 4B1.2(a)
(2014), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2014). Because the PSR applied
the wrong definition of “crime of violence,” the district court plainly erred by
relying on it. See United States v. Castillo-Marin, 684 F.3d 914, 921-22 (9th Cir.
2012).
The government suggests that the district court’s error was not prejudicial
because the documents of conviction would demonstrate that the coercion statute is
divisible, see Mathis v. United States, 136 S. Ct. 2243, 2256-57 (2016), and that
Franco-Ibarra was convicted of a crime of violence. We cannot evaluate this claim
because the documents of conviction are not part of the record. Under these
circumstances, and given the substantial effect of the enhancement on Franco-
Ibarra’s Guidelines range, we conclude that the district court’s error affected
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Franco-Ibarra’s substantial rights and the fairness of judicial proceedings. See
Castillo-Marin, 684 F.3d at 927.
Upon remand, if the government again seeks the 16-level enhancement, it
may submit Franco-Ibarra’s documents of conviction. See id. In that event, the
district court can determine in the first instance whether Franco-Ibarra’s prior
conviction under the Nevada coercion statute qualifies as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
In light of this disposition, we decline to consider Franco-Ibarra’s remaining
claims of sentencing error.
VACATED and REMANDED for resentencing.
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