United States v. Juan Negrete-Dominguez

FILED
NOT FOR PUBLICATION APR 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10191
Plaintiff - Appellee, D.C. No. 4:12-cr-01953-CKJ
v.
MEMORANDUM*
JUAN JOSE NEGRETE-DOMINGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jack Zouhary, District Judge, Presiding**
Submitted April 22, 2015***
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Juan Jose Negrete-Dominguez appeals from the district court judgment and
challenges his guilty-plea conviction and 57-month sentence for attempted reentry
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v.
California, 386 U.S. 738 (1967), Negrete-Dominguez’s counsel has filed a brief
stating that there are no grounds for relief, along with a motion to withdraw as
counsel of record. Negrete-Dominguez has filed a pro se supplemental brief and
the government has filed an answering brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80 (1988), discloses no arguable grounds for relief on direct appeal with
respect to the conviction. We, therefore, affirm Negrete-Dominguez’s conviction.
With respect to Negrete-Dominguez’s sentence, in light of the November
2013 amendment to U.S.S.G. § 3E1.1, the government concedes that Negrete-
Dominguez’s sentence should be vacated and the case remanded for the district
court to consider whether Negrete-Dominguez should receive a third-level
reduction for acceptance of responsibility. Accordingly, we vacate and remand for
resentencing.
Because it will be relevant on remand, we address Negrete-Dominguez’s
argument that the district court erred in imposing a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Negrete-Dominguez contends that he should not
have received the enhancement for his California conviction for aggravated assault
with a deadly weapon because the conviction was obtained through a plea of nolo
contendere. This contention is unavailing because a no contest plea serves as the
2 13-10191
equivalent of a guilty plea for the purposes of determining whether the crime of
conviction is a crime of violence. See United States v. Guerrero-Velasquez, 434
F.3d 1193, 1197-98 (9th Cir. 2006).
Counsel’s motion to withdraw is denied without prejudice to renewal in the
district court if counsel does not wish to represent Negrete-Dominguez at his
resentencing. Counsel’s request for advisement of case status is denied as
unnecessary.
AFFIRMED in part; SENTENCE VACATED and REMANDED for
RESENTENCING.
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