United States v. Gomez-Alvarez

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 *467 tel-Flores, 339 F.3d 959, 968-69 (9th Cir. 2003). SENTENCE VACATED AND REMANDED FOR RESENTENCING. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.