United States v. Moreno-Hernandez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30387
Plaintiff-Appellee, D.C. No.
v.
 CR-03-30012-AA
ISIDRO MORENO-HERNANDEZ, ORDER AND
Defendant-Appellant. AMENDED
 OPINION

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

Argued and Submitted
September 15, 2004—Portland, Oregon

Submission Withdrawn September 28, 2004
Resubmitted February 18, 2005

Filed February 18, 2005
Amended July 5, 2005
Second Amendment August 17, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

10795
 UNITED STATES v. MORENO-HERNANDEZ 10797

COUNSEL

Robert M. Stone, Medford, Oregon, for the defendant-
appellant.
10798 UNITED STATES v. MORENO-HERNANDEZ
Karin J. Immergut, United States Attorney, District of Ore-
gon, and Robert G. Thomson (argued), Assistant United
States Attorney, Medford, Oregon, for the plaintiff-appellee.

ORDER

The mandate issued on July 13, 2005 is recalled for the pur-
pose of amending the opinion as follows:

The amended opinion filed July 5, 2005, slip op. 7773,
appearing at 2005 WL 1560269 (9th Cir. July 5, 2005), is
amended as follows:

1) Slip op. at 7793 (2005 WL 1560269, at *9): The
first sentence of the third full paragraph, begin-
ning “We conclude that a limited remand is
proper in all pending direct criminal appeals
involving unpreserved Booker error,” is deleted.
In its place, the following sentence is inserted:
“We conclude that defendants are entitled to
limited remands in all pending direct criminal
appeals involving unpreserved Booker error,
whether constitutional or nonconstitutional.”

2) Slip op. at 7794 (2005 WL 1560269, at *9): A
footnote is inserted at the end of the last sen-
tence of the opinion, which begins “We will
therefore remand.” The text of footnote is as fol-
lows:

It is clear that the district court, under Ame-
line, will have to at least consider the avail-
able sentence under the now-discretionary
federal Guidelines in determining whether
it would have imposed a different sentence
had it known the Guidelines were advisory.
 UNITED STATES v. MORENO-HERNANDEZ 10799
That is why we resolve the question that
was fully briefed and argued in this court
concerning the applicability of the enhance-
ment. By doing so, we assure that the dis-
trict court will begin in this regard with the
proper interpretation of the Guidelines in
determining whether it would have imposed
a different sentence. Cf. United States v.
Baclaan, 948 F.2d 628, 630-31 (9th Cir.
1991) (per curiam) (interpreting the district
court’s application of non-binding policy
statements in the Guidelines).

No further petitions for rehearing or petitions for rehearing
en banc shall be entertained. The mandate shall reissue forth-
with.

OPINION

BERZON, Circuit Judge:

Once more, we are asked to determine whether a federal
defendant’s previous state-law conviction is for a “felony that
is . . . a crime of violence” under section 2L1.2(b)(1)(A)(ii)
of the U.S. Sentencing Guidelines (“Guidelines”). See, e.g.,
United States v. Lopez-Patino, 391 F.3d 1034, 1036-38 (9th
Cir. 2004) (per curiam); United States v. Contreras-Salas, 387
F.3d 1095, 1097 (9th Cir. 2004); United States v. Hernandez-
Hernandez, 387 F.3d 799, 804-06 (9th Cir. 2004); United
States v. Grajeda-Ramirez, 348 F.3d 1123, 1124-25 (9th Cir.
2003), cert. denied, 125 S. Ct. 863 (2005).

Under Oregon law, assault in the fourth degree (“Assault
IV”), normally a “Class A misdemeanor” punishable by no
more than one year in prison, is a “Class C felony” punishable
by up to five years in prison when committed, inter alia, in the
10800 UNITED STATES v. MORENO-HERNANDEZ
presence of the victim’s minor child. See OR. REV. STAT.
§ 163.160(3)(c).1 At issue in this appeal is whether the pres-
ence of the victim’s minor child should be considered in
ascertaining whether the Oregon statute defines a “felony” for
purposes of the Guidelines.

Sentencing factors based on some aspect of the defendant’s
legal history, such as recidivist sentencing enhancements, are
not considered in determining whether a state-law offense is
a felony. See, e.g., United States v. Pimentel-Flores, 339 F.3d
959, 967-69 (9th Cir. 2003); United States v. Corona-
Sanchez, 291 F.3d 1201, 1208-11 (9th Cir. 2002) (en banc).
Today, however, we decline to extend these precedents to
1
In full, section 163.160 provides:
(1) A person commits the crime of assault in the fourth degree
if the person:
(a) Intentionally, knowingly or recklessly causes physical
injury to another; or
(b) With criminal negligence causes physical injury to
another by means of a deadly weapon.
(2) Assault in the fourth degree is a Class A misdemeanor.
(3) Notwithstanding subsection (2) of this section, assault in
the fourth degree is a Class C felony if the person commits the
crime of assault in the fourth degree and:
(a) The person has previously been convicted of assaulting
the same victim;
(b) The person has previously been convicted at least three
times under this section or under equivalent laws of
another jurisdiction and all of the assaults involved
domestic violence, as defined in ORS 135.230; or
(c) The assault is committed in the immediate presence of,
or is witnessed by, the person’s or the victim’s minor
child or stepchild or a minor child residing within the
household of the person or victim.
(4) For the purposes of subsection (3) of this section, an assault
is witnessed if the assault is seen or directly perceived in any
other manner by the child.
 UNITED STATES v. MORENO-HERNANDEZ 10801
cases such as this one, where the sentencing factor is based on
circumstances of the crime itself. Substantive offense-based
enhancements are inseparable from the underlying offense
and must be considered in determining the maximum avail-
able sentence.

We therefore agree with the district court that Defendant-
Appellant Isidro Moreno-Hernandez’s underlying Oregon
conviction was, as far as this consideration goes, for a “felo-
ny.” As Moreno-Hernandez challenges the applicability of a
federal sentencing enhancement, however, we grant a limited
remand pursuant to United States v. Ameline, No. 02-30326,
2005 WL 1291977 (9th Cir. June 1, 2005) (en banc).

I. Background

This appeal comes to us from Moreno-Hernandez’s third
conviction for illegally reentering the United States after
removal. See 8 U.S.C. § 1326. All three federal convictions
occurred subsequent to a 1999 Oregon state conviction for
assault in the fourth degree, for “unlawfully and intentionally
caus[ing] physical injury” to Yolanda Robinson in the pres-
ence of her minor child, Deanndra Wright. For that offense,
Moreno-Hernandez was sentenced to sixty days in jail and
three years on probation.

After pleading guilty to this most recent § 1326 charge,
Moreno-Hernandez was sentenced to a term of seventy-seven
months. Under the then-recently amended Guidelines,2 the
district court enhanced Moreno-Hernandez’s sentence by six-
teen levels, because he was deported, or unlawfully remained
in the United States, after a conviction for a “felony that is . . .
a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).3
From this sentence Moreno-Hernandez timely appeals.
2
Moreno-Hernandez was not subject to the sixteen-level enhancement
on his first two convictions. The Guidelines, at those times, allowed the
sixteen-level enhancement only when the underlying offense was an “ag-
gravated felony.” See U.S.S.G. § 2L1.2(b)(1)(A) (2001).
3
Under U.S.S.G. § 2L1.2(b)(1)(A), the sixteen-level enhancement also
applies to a conviction for a felony that is “(i) a drug trafficking offense
10802 UNITED STATES v. MORENO-HERNANDEZ
II. “Felony”

The crux of Moreno-Hernandez’s argument is that we
should not consider the factor that made his offense punish-
able by as much as a five-year sentence — the presence of the
victim’s minor child — in ascertaining whether his underlying
Oregon conviction was for a “felony.”4

[1] Federal law and the Guidelines both define a felony as
“any federal, state, or local offense punishable by imprison-
ment for a term exceeding one year.” U.S.S.G. § 2L1.2, cmt.
n.2; see also 18 U.S.C. § 3559(a). This bright-line distinction
between felonies and misdemeanors, which dates back, at
least in some form, to 1865, see United States v. Graham, 169
F.3d 787, 792 (3d Cir. 1999), has been repeatedly embraced
as the law of our circuit, see, e.g., United States v. Robles-
Rodriguez, 281 F.3d 900, 904, 906 (9th Cir. 2002); United
States v. Olvera-Cervantes, 960 F.2d 101, 103-04 (9th Cir.
1992); United States v. Houston, 547 F.2d 104, 106 (9th Cir.
1976).

[2] Assault IV without the presence of the victim’s minor
child carries a maximum sentence of one year in prison. See
OR. REV. STAT. § 161.615. Because of the presence of the vic-
tim’s minor child during the assault, Moreno-Hernandez’s
offense carried a maximum sentence of five years. See id.

for which the sentence imposed exceeded 13 months; . . . (iii) a firearms
offense; (iv) a child pornography offense; (v) a national security or terror-
ism offense; (vi) a human trafficking offense; or (vii) an alien smuggling
offense.”
4
Moreno-Hernandez challenges only whether his Assault IV conviction
is a “felony.” He has not challenged whether it is a “crime of violence.”
We therefore do not consider whether under the Supreme Court’s recent
decision in Leocal v. Ashcroft, 125 S. Ct. 377 (2004), affirming the rea-
soning of our earlier opinion in United States v. Trinidad Aquino, 259 F.3d
1140 (9th Cir. 2001), the mens rea required for an Assault IV conviction
under Oregon law meets the requisites for a “crime of violence.”
 UNITED STATES v. MORENO-HERNANDEZ 10803
§§ 161.605; 163.160(3)(c). Moreno-Hernandez’s underlying
conviction is therefore a “felony” only if the minor child
enhancement is pertinent in determining whether his convic-
tion was for a “felony.” The question before us is whether it
should be so considered.

A. Corona-Sanchez

In Corona-Sanchez, we considered whether the California
state-law crime of petty theft committed by a previous
offender was an aggravated felony under the Guidelines. The
answer to that question turned on whether the crime was a
“theft offense” punishable by a sentence of one year or more
in prison. 291 F.3d at 1203-11. Under the California law at
issue in Corona-Sanchez, the fact that the defendant was a
repeat offender rendered him subject to a sentence — two
years — that would have made his crime an aggravated fel-
ony, even though the underlying offense, petty theft, carried
only a six-month statutory maximum.

[3] Corona-Sanchez applied the categorical approach out-
lined in Taylor v. United States, 495 U.S. 575 (1990), in com-
bination with the distinction between substantive offenses and
recidivist sentencing enhancements highlighted in
Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998). Applying these concepts to the question whether
Corona-Sanchez’s crime constituted an “aggravated felony,”
we concluded that, in assessing whether a crime is a “theft
offense” punishable by one year or more in prison, the sub-
stantive offense is to be considered independently of any
recidivist sentencing enhancement. Based on that analysis,
Corona-Sanchez concluded that the crime of petty theft is not
a “theft offense,” and therefore is not an aggravated felony for
purposes of the Guidelines, even though the maximum sen-
tence to which Corona-Sanchez was subject was more than
one year. 291 F.3d at 1210-11.

Corona-Sanchez explained the cleaving of the recidivist
enhancement from the underlying offense largely on the basis
10804 UNITED STATES v. MORENO-HERNANDEZ
that the enhancement was measured by recidivism. Following
the Supreme Court’s reiteration in Apprendi v. New Jersey
that “recidivism does not relate to the commission of the
offense,” 530 U.S. 466, 496 (2000) (citation and internal quo-
tation marks omitted), the en banc court regarded petty theft
as a single, substantive offense, as to which various sentenc-
ing alternatives were available depending on the defendant’s
past criminal history. See, e.g., Corona-Sanchez, 291 F.3d at
1209 (“This approach is consistent with the Supreme Court’s
historic separation of recidivism and substantive crimes.”).
Importantly, under this approach, nothing substantive about
the offense determined whether the petty theft was or was not
an aggravated felony. The court rejected only the argument
that a characteristic of the offender’s prior history could be
the reason a state crime becomes, for federal purposes, an
“aggravated felony.”

Here, by contrast, the enhancement in the Oregon Assault
IV statute for the presence of the victim’s minor child is not
related to recidivism or any other past actions of the offender.
Instead, it is the facts of the offense, not the legal history of
the offender, that gives rise to the maximum available sen-
tence of more than one year.

By way of example, we note that the other variants of
Assault IV under Oregon law, in contrast, do mirror the
enhancements at issue in Corona-Sanchez. Moreno-
Hernandez was convicted of assault in the presence of the vic-
tim’s minor child, see OR. REV. STAT. § 163.160(3)(c), but
Assault IV is also a Class C felony if “(a) The person has pre-
viously been convicted of assaulting the same victim; [or] (b)
The person has previously been convicted at least three times
under this section or under equivalent laws of another juris-
diction and all of the assaults involved domestic violence, as
defined in ORS 135.230 . . . .” Id. § 163.160(3). These two
enhancements fall into the class of recidivist sentencing
enhancements, like those in Corona-Sanchez. Were Moreno-
Hernandez’s Assault IV conviction enhanced by one of these
 UNITED STATES v. MORENO-HERNANDEZ 10805
factors, Corona-Sanchez would mandate our holding that his
earlier offense was not a “felony.”

There is, however, some language in Corona-Sanchez that
is not expressly limited to recidivist factors. For example, the
en banc court stated in one passage that it was “[e]xamining
the crime itself, rather than any sentencing enhancements,”
291 F.3d at 1209, and added elsewhere that the Guidelines
“describ[e] felonies with reference to the offense, rather than
separate sentencing enhancements.” Id.; see also id. at 1209-
10 (“Given the profound consequences of the [aggravated fel-
ony] designation and the declared purpose of Congress to tar-
get ‘serious crimes,’ it is doubtful that Congress intended to
include crimes such as petty theft within the ambit of the defi-
nition by virtue of state sentencing enhancements imposed for
acts that themselves are not aggravated felonies.”). What the
Corona-Sanchez court meant by “enhancements” is thus not
absolutely clear. Cf. United States v. Buckland, 289 F.3d 558,
565-67 (9th Cir. 2002) (en banc) (suggesting that, for consti-
tutional purposes, Apprendi eschews formalistic distinctions
between sentencing factors and elements of a crime).

B. Pimentel-Flores

The broader reading of Corona-Sanchez, to encompass all
factors that increase a sentence, is to some degree supported
by our decision one year later in Pimentel-Flores, the first
case in this circuit to consider the current version of § 2L1.2.
Pimentel-Flores first concluded that a “crime of violence”
need not be an aggravated felony under § 2L1.2. It then con-
sidered whether Pimentel-Flores was subject to the 16-level
enhancement based on a state-court conviction for “assault, in
violation of [a] court order.” Pimentel-Flores, 339 F.3d at
967. Because the government did not provide the district court
with evidence of the statute of prior conviction, as Corona-
Sanchez requires, we remanded for resentencing. Id. at 967-
69.
10806 UNITED STATES v. MORENO-HERNANDEZ
Pimentel-Flores went on to discuss various issues that the
district court was directed to consider on remand. For
instance, the court held that Taylor “applies to the determina-
tion of whether a defendant’s prior offense constitutes a
‘crime of violence’ for purposes of [§ 2L1.2].” Id. at 968.
More central to this case, the court also concluded that “there
is a plausible prospect that the outcome might have been dif-
ferent had the government [provided the statute of convic-
tion],” id., because:

We have held in the past that state sentencing
enhancements raising misdemeanors to felonies can-
not be considered in determining whether a prior
conviction is an “aggravated felony.” Instead, the
court must examine the statute under which a defen-
dant was convicted for his core offense. The same
logic would apply to the determination of whether a
defendant’s prior offense was a “felony.”

Id. at 969 (citing Corona-Sanchez, 291 F.3d at 1209-10).5
This language in Pimentel-Flores might plausibly be read as
indicating that Corona-Sanchez extends to all sentencing fac-
tors, not just those based on recidivism. Again, however, such
an argument assumes that Corona-Sanchez, in referring to “all
enhancements,” understood that it was including all non-
recidivist, offense-related factors within the ambit of “en-
hancements.”

The violation of a court order — the enhancement at issue
in Pimentel-Flores — is similar to a recidivist factor, for it is
backward-looking. Further, rather than delineating the con-
5
The court subsequently noted that “[t]hese are not clear-cut conclu-
sions but only plausible possibilities to be critically assessed on remand,”
Pimentel-Flores, 339 F.3d at 969. This statement seems to qualify only the
paragraph in which it appears, discussing the statute proffered by
Pimentel-Flores’s counsel at oral argument, not the court’s characteriza-
tion of Corona-Sanchez one paragraph earlier, as quoted above.
 UNITED STATES v. MORENO-HERNANDEZ 10807
duct that constituted the crime of conviction, the enhancement
in Pimentel-Flores is concerned with a legal history character-
istic that the offender already possessed before committing
the offense in question — namely, being subject to a court
order. It is thus unlikely that the less-than-clear language of
Pimentel-Flores, summarizing Corona-Sanchez, was meant to
go beyond the circumstances before the court in either of the
two cases.6

[4] We are left, then, at something of a doctrinal impasse.
Corona-Sanchez was not entirely clear as to whether it was
enunciating a rule only for recidivist sentencing enhance-
ments, although the basis for its holding turned largely on
recidivism principles enunciated in Almendarez-Torres and
Apprendi; Pimentel-Flores widened the potential confusion
over Corona-Sanchez’s scope. In the abstract, then, whether
Corona-Sanchez and Pimentel-Flores extend to this case may
best be described as uncertain, with plausible arguments on
both sides.

C. Non-Recidivist Enhancements

We are nevertheless persuaded that Corona-Sanchez and
Pimentel-Flores go only so far, and no further. Otherwise, as
the government argues here, “logic would prohibit use of any
felony prior conviction if there was also a necessarily
included misdemeanor version of the offense.” Most felonies
have some misdemeanor as an element, to which other ele-
ments are added. Thus, if we adopted the broader reading of
our precedents, the line drawing, as the government suggests,
6
The government suggested that we are bound by the Oregon Court of
Appeals’ description of the presence of a minor child “as an element of
the offense” of Assault IV. See State v. Glaspey, 55 P.3d 562, 565 (Or. Ct.
App. 2002). The Oregon Supreme Court, however, has since overruled the
Court of Appeals’ decision in Glaspey. See State v. Glaspey, 100 P.3d 730
(Or. 2004). In any event, Corona-Sanchez, Pimentel-Flores, and Taylor all
require us independently to assess the statutory scheme regardless of the
state’s characterization of the offense.
10808 UNITED STATES v. MORENO-HERNANDEZ
would become an impossible exercise, turning on semantic
fortuities of statutory numbering or drafting.

Consider, for example, Oregon’s definition of assault in the
first degree: “A person commits the crime of assault in the
first degree if the person intentionally causes serious physical
injury to another by means of a deadly or dangerous weapon.”
OR. REV. STAT. § 163.185(1). Under Moreno-Hernandez’s
logic, the facts that the assault was committed “intentionally,”
that the assault resulted in serious physical injury, and that the
assault was “by means of a deadly or dangerous weapon”
would each be sentencing factors separate from the underly-
ing offense — assault — which Oregon law defines as a mis-
demeanor in a separate statutory section. See id. § 163.160(2).
Taking the argument to its extreme, even homicide, which
under Oregon law occurs when “without justification or
excuse, [a] person intentionally, knowingly, recklessly or with
criminal negligence causes the death of another human
being,” id. § 163.005(1), would be a misdemeanor, since the
offense could also be characterized as an assault with a num-
ber of aggravating factors, only one of which is the death of
the victim.

Moreno-Hernandez’s alternative position — that we should
look at the structure of the state statute — is equally uncon-
vincing. Under this approach, if the same statutory section
included an offense and a lesser-included version thereof —
as does Oregon’s Assault IV statute — then the lesser-
included version would govern whether the offense defined a
felony. By contrast, if another state codified simple assault
without the presence of the victim’s minor child in a separate
“Assault V” statute, then, under Moreno-Hernandez’s argu-
ment, the same offense would be a felony for federal sentenc-
ing purposes in that state, but not in Oregon. This dichotomy
is untenable, and explains why we may not look to the state
statutory labeling or structure in ascertaining whether the
offense is a felony.
 UNITED STATES v. MORENO-HERNANDEZ 10809
Put simply, Moreno-Hernandez’s argument, that we should
read Corona-Sanchez and Pimentel-Flores to reach all sen-
tencing factors, would necessarily require us to hold that
nearly all state-law offenses are misdemeanors for federal
sentencing purposes. We cannot agree with this reductio ad
absurdum.

[5] Instead, we read Corona-Sanchez and Pimentel-Flores
as applying only to sentencing enhancements not based
directly on the facts of the offense of conviction.7 When legis-
latures have chosen to demarcate sentences based on specific
characteristics of the offense itself rather than on some aspect
of the offender’s legal history, we believe that the Corona-
Sanchez “core offense” concept does not apply, and that the
entire sentence, including its offense-based aggravating char-
acteristics, must be factored into our determination of whether
or not it is a “felony.”

[6] Because we do not consider Moreno-Hernandez’s
Assault IV conviction separately from the aggravating factor,
and because Assault IV in the presence of the victim’s minor
child carries a maximum sentence of five years’ imprison-
ment, we conclude that the statutory maximum sentence for
Moreno-Hernandez’s offense of conviction under Oregon law
is five years in prison.

III. Blakely and Rios-Beltran

At oral argument and in supplemental briefing ordered by
the court, Moreno-Hernandez advanced an argument purport-
7
To clarify our holding, we mean to speak only to offenses that incorpo-
rate lesser offenses as part of their definition, such as the Oregon assault
statute at issue here. Offenses that are only illegal because of the offend-
er’s status, such as possession of a firearm by a convicted felon, see 18
U.S.C. § 922(g)(1), are not implicated by our holding today, for, absent
consideration of the offender’s status, there is no “core offense” remain-
ing.
10810 UNITED STATES v. MORENO-HERNANDEZ
edly based on Blakely v. Washington, 124 S. Ct. 2531 (2004).8
Specifically, Moreno-Hernandez suggests that Blakely, as
applied to Oregon’s sentencing guidelines, limits the maxi-
mum possible sentence for his Oregon Assault IV conviction
to the presumptive maximum sentence available under the
Oregon guidelines at the time — thirty-six months of proba-
tion and a maximum of 180 days in jail. His contention is that
the district court, in ascertaining the maximum possible state
sentence to which Moreno-Hernandez was subject for his
Assault IV conviction, should have looked not to the statutory
maximum sentence for the offense, but to the maximum sen-
tence available under the Oregon sentencing guidelines for
Moreno-Hernandez, in particular. In effect, Moreno-
Hernandez argues that because he could not have been sen-
tenced for his Assault IV conviction to more than a maximum
specified by the Oregon guidelines — which, he maintains, is
less than one year — his conviction was not for a “felony.”

Whether or not Moreno-Hernandez’s argument would oth-
erwise have merit in light of United States v. Rios-Beltran,
361 F.3d 1204, 1209 n.4 (9th Cir. 2004), we are unpersuaded
that Blakely could have altered the maximum possible sen-
tence at the time of his 1999 Oregon state conviction. For pur-
8
Moreno-Hernandez seems to raise two distinct challenges to his
enhancement based, at the time, on Blakely. The government responded
only to his first argument — that Blakely (and now Booker, 125 S. Ct.
738) prevents the district court from enhancing his sentence based on facts
not found by the jury. We agree with the government that this contention
is without merit. The district court relied only on the “fact of prior convic-
tion” in enhancing Moreno-Hernandez’s sentence. Booker bars the district
court from considering only those facts not found by the jury other than
the fact of prior conviction. See, e.g., id. at 756 (Stevens, J.) (“Any fact
(other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” (emphasis added)). The fact of Moreno-
Hernandez’s Assault IV conviction thus does not raise any Sixth Amend-
ment problems. See United States v. Quintana-Quintana, 383 F.3d 1052,
1053 (9th Cir. 2004) (per curiam).
 UNITED STATES v. MORENO-HERNANDEZ 10811
poses of ascertaining whether a predicate offense constitutes
a “felony” for federal sentencing purposes, we are concerned
only with the maximum possible sentence at that time.

In Rios-Beltran — which was decided before Blakely —
we held that “what matters for federal sentencing purposes is
that the statutory maximum sentence for the offense for which
[the defendant] was convicted exceeded one year.” Id. at
1209. Because the statutory maximum for Rios-Beltran’s
prior conviction was greater than one year, and because “Ore-
gon [had] not ruled out the possibility” that Rios-Beltran’s
actual sentence could lawfully exceed one year, we did not
decide what effect it would have for purposes of section
2L1.2 if Oregon had ruled out that possibility. Id. at 1209 n.4.
Likewise, at the time of Moreno-Hernandez’s prior convic-
tion, the statutory maximum for his offense was greater than
one year, and Oregon law did not necessarily preclude the
imposition of an actual sentence of more than one year.

Oregon law has changed in light of Blakely, so that any
sentence in excess of the presumptive range in the state guide-
lines is now recognized as unconstitutional unless based on
facts found by a jury or a prior conviction. State v. Dilts, 103
P.3d 95 (Or. 2004). That ruling was not in effect, however, at
the time of Moreno-Hernandez’s Oregon conviction.

Moreno-Hernandez’s argument thus is tantamount to a col-
lateral attack on his original conviction. We cannot consider
such an attack as part of his challenge to a subsequent sen-
tencing enhancement. See, e.g., United States v. Marks, 379
F.3d 1114, 1119 & n.4 (9th Cir. 2004) (citing Custis v. United
States, 511 U.S. 485, 496 (1994)), cert. denied, 125 S. Ct.
1355 (2005); United States v. Martinez-Martinez, 295 F.3d
1041, 1044-45 (9th Cir. 2002). We therefore reject Moreno-
Hernandez’s Blakely-based challenge to the district court’s
determination that his Oregon state conviction was a “felony.”
We express no opinion on how section 2L1.2 would apply in
a case where the statutory maximum for a prior conviction
10812 UNITED STATES v. MORENO-HERNANDEZ
was greater than one year, but the maximum actual sentence
that could lawfully be imposed at the time of the conviction
was less than one year.

Conclusion; Impact of Ameline

As discussed above, we include the presence of the victim’s
minor child in ascertaining the statutory maximum sentence,
so the statutory maximum for the Oregon Assault IV offense
(including the presence of the victim’s minor child) was
imprisonment for no more than five years. Because the Guide-
lines define as a felony any offense punishable by a term of
imprisonment exceeding one year, Moreno-Hernandez’s
underlying state-law conviction was, in this respect, for a “fel-
ony that is . . . a crime of violence.”

[7] We must, however, consider what effect the recent deci-
sion in United States v. Ameline, No. 02-30326, 2005 WL
1291977 (9th Cir. June 1, 2005) (en banc) has on this appeal.
There, our en banc court held that “when we are faced with
an unpreserved Booker error that may have affected a defen-
dant’s substantial rights, and the record is insufficiently clear
to conduct a complete plain error analysis, a limited remand
to the district court is appropriate for the purpose of ascertain-
ing whether the sentence imposed would have been materially
different had the district court known that the sentencing
guidelines were advisory.” Id. at *1. However, in Ameline, the
defendant had asserted the Sixth Amendment objection that
his “sentence was enhanced by judge-found facts under a
mandatory Guidelines system,” and neither party had raised
the “nonconstitutional error that a sentence was erroneously
imposed under guidelines believed to be mandatory.” Id. at
*11 & n.8. Here, by contrast, the district court committed no
Sixth Amendment error. See supra note 8. Thus, the question
we must decide is whether to follow Ameline’s “limited
remand” approach where the only error involved is of the
nonconstitutional variety.
 UNITED STATES v. MORENO-HERNANDEZ 10813
[8] We conclude that defendants are entitled to limited
remands in all pending direct criminal appeals involving
unpreserved Booker error, whether constitutional or noncon-
stitutional. Nothing in the Ameline opinion indicates that the
en banc court intended to utilize that approach only in cases
of Sixth Amendment error. Nor do we perceive any reason
why Ameline should be so limited. After all, the reason for a
limited remand is that it sometimes is not possible for us to
answer the question whether the district court would have
imposed the same sentence if it had known the guidelines
were advisory, and the fact that the district court has not con-
ducted any factfinding does not make this question any easier
(or harder) for us to answer. We will therefore remand
Moreno-Hernandez’s sentence in accordance with Ameline.9

REMANDED.

9
It is clear that the district court, under Ameline, will have to at least
consider the available sentence under the now-discretionary federal Guide-
lines in determining whether it would have imposed a different sentence
had it known the Guidelines were advisory. That is why we resolve the
question that was fully briefed and argued in this court concerning the
applicability of the enhancement. By doing so, we assure that the district
court will begin in this regard with the proper interpretation of the Guide-
lines in determining whether it would have imposed a different sentence.
Cf. United States v. Baclaan, 948 F.2d 628, 630-31 (9th Cir. 1991) (per
curiam) (interpreting the district court’s application of non-binding policy
statements in the Guidelines).