FILED
NOT FOR PUBLICATION JAN 03 2012
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. 10-50543
Plaintiff - Appellee, D.C. No. 3:10-CR-0917-001-JM
v. MEMORANDUM *
RUBEN ANTONIO VILLATORO-
MEDRANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted November 9, 2011
Pasadena, California
Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**
Ruben Villatoro-Medrano appeals the sentence imposed by the district court
following his conviction under 8 U.S.C. § 1326. He argues that the court below
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
erred in applying a 16-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2
because it wrongly characterized his 2004 attempted robbery conviction in the
District of Columbia (D.C.) as a “crime of violence.” Reviewing the district
court’s application of the Sentencing Guidelines de novo, United States v. Jennen,
596 F.3d 594, 600 (9th Cir. 2010), we agree.
First, as interpreted by D.C. courts, 22 D.C. Code § 2801 criminalizes non-
violent conduct beyond generic robbery–namely, stealthy seizure or snatching.
See, e.g., Leak v. United States, 757 A.2d 739, 742 (D.C. App. 2000). Thus,
Petitioner’s prior conviction under that statute does not categorically qualify as a
“crime of violence” for purposes of the sentencing enhancement. See Taylor v.
United States, 495 U.S. 575, 598 (1990); United States v. Laurico-Yeno, 590 F.3d
818, 821 (9th Cir. 2010) (requiring the sentencing court to focus on “the least
egregious end of [the statute’s] range of conduct”); see also United States v.
Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (defining “generic” robbery).
Second, those portions of Petitioner’s criminal record which are judicially
noticeable under a “modified-categorical” analysis do not indicate that Petitioner’s
guilty plea in 2004 “necessarily admitted” the elements of generic robbery. See
Shepard v. United States, 544 U.S. 13, 26 (2005). In this case, our inquiry is
limited to the criminal information to which Petitioner pled guilty and the
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judgment of the D.C. Superior Court. See id. at 16 (“[A] later court determining
the character of an admitted [crime] is generally limited to examining the statutory
definition, charging document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the defendant
assented.”); see also United States v. Tucker, 641 F.3d 1110, 1124 (9th Cir. 2011).
An examination of these documents does not exclude the possibility that Petitioner
was convicted of mere stealthy seizure or snatching. Cf. Jackson v. United States,
359 F.2d 260, 262 (D.C. Cir. 1966).
As nothing in the record establishes Petitioner’s prior conviction as a “crime
of violence,” the district court erred in applying a 16-level sentencing enhancement
under U.S.S.G. § 2L1.2. Accordingly, Petitioner’s sentence is hereby
VACATED AND REMANDED.
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