FILED
NOT FOR PUBLICATION OCT 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-10552
Plaintiff - Appellee, D.C. No. CR-07-00642-RCC
v.
MEMORANDUM *
JOSE ORTIZ-MONTANO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Jose Ortiz-Montano appeals from the 51-month sentence imposed following
his conviction for illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
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).
Ortiz-Montano contends that the district court committed plain error when it
imposed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based
on his 1985 guilty-plea conviction for burglary under California Penal Code § 459.
He argues that the government did not present sufficient evidence from appropriate
judicial records to prove that his prior conviction qualified as a crime of violence.
The district court did not apply the modified categorical approach to analyze
whether Ortiz-Montano’s prior conviction qualified for the 16-level sentencing
increase. See United States v. Aguila-Montes De Oca, _ F.3d _, 2011 WL 3506442
at *25-26 (9th Cir. Aug. 11, 2011) (en banc).
Since Ortiz-Montano has been deported, he cannot be resentenced unless he
returns to the United States. Thus, we affirm the sentence without prejudice to an
application by Ortiz-Montano to the district court to vacate his sentence and
resentence him consistent with our en banc decision in Aguila-Montes De Oca at
such time, if ever, that he is in this country and available for resentencing. See
United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th Cir. 2004), amended
by 449 F.3d 1059 (9th Cir. 2006).
Ortiz-Montano also contends that the 16-level enhancement violates the Ex
Post Facto Clause because the Sentencing Guidelines did not take effect until after
the date of the conviction used as the basis for the enhancement. The contention is
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without merit. See United States v. Kienenberger, 13 F.3d 1354, 1356-57 (9th Cir.
1994).
The Government’s motion for judicial notice filed on December 12, 2008 is
denied as moot.
AFFIRMED.
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