NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 11-50444 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 3:11-cr-00006-GT-1
v.
MEMORANDUM*
JORGE MEDINA-FRUCTUOSO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Submitted April 11, 2012**
Pasadena, California
Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.***
*
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).
***
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
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Jorge Medina-Fructuoso pled guilty to one count of illegal reentry after
removal under 8 U.S.C. § 1326, and the district court sentenced him to 33 months’
imprisonment. Medina-Fructuoso now appeals: (1) the district court’s denial of the
parties’ joint motion to withdraw Medina-Fructuoso’s guilty plea; (2) the district
court’s denial of Medina-Fructuoso’s unopposed motion to calendar a hearing to
waive indictment on a proposed superseding information; and (3) the district
court’s imposition of an 8-level sentencing enhancement on the ground that
Medina-Fructuoso’s prior conviction for resisting a police officer causing serious
bodily injury under California Penal Code § 148.10(a) was categorically an
“aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C). We have jurisdiction under
28 U.S.C. § 1291.
We review a district court’s denial of a motion to withdraw a guilty plea
under Federal Rule of Criminal Procedure 11(d) for abuse of discretion. See
United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985). Medina-Fructuoso
argues that the district court should have allowed him to withdraw his guilty plea
because the presentence report recommended that he be given a 16-level
enhancement for his prior conviction for resisting arrest — a possibility he claims
the parties had not contemplated at the time of the plea agreement. Although Rule
11(d)(2)(B) allows a defendant to withdraw a guilty plea for any “fair and just
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reason,” “[a] defendant cannot withdraw his plea because he realizes that his
sentence will be higher than he had expected.” United States v. Nostratis, 321 F.3d
1206, 1211 (9th Cir. 2003). Moreover, the parties’ plea agreement explicitly
contemplated the possibility that the PSR would uncover more information about
Medina-Fructuoso’s criminal history and affect his guidelines range. Thus, the
district court did not abuse its discretion in denying the parties’ motion to withdraw
Medina-Fructuoso’s guilty plea.
Medina-Fructuoso also argues that the district court abused its discretion in
denying his unopposed motion to calendar a hearing to waive indictment on and
plead guilty to the proposed superseding information charging him with two counts
of illegal entry under 8 U.S.C. § 1325. Medina-Fructuoso’s motion for calendaring
was effectively a new plea agreement that he and the government were presenting
to the court: The government would dismiss the § 1326 charge and bring a
superseding information charging Medina-Fructuoso with two counts under
§ 1325, and in exchange, Medina-Fructuoso would waive indictment on the
superseding information and plead guilty to the § 1325 charges. We review a
district court’s rejection of a plea agreement for abuse of discretion. See In re
Morgan, 506 F.3d 705, 708 (9th Cir. 2007). Here, the district court rejected the
new plea agreement for the same reason it denied the parties’ motion to withdraw
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Medina-Fructuoso’s guilty plea, which, as explained above, was not an abuse of
discretion. Thus, the district court’s rejection of the new plea agreement was not
an abuse of discretion.
Finally, the parties agree that the district court erred in holding that Medina-
Fructuoso’s prior conviction under California Penal Code § 148.10(a) was
categorically an aggravated felony warranting an 8-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(C). Under § 2L1.2(b)(1)(C), to constitute a “crime of
violence” (and thus an aggravated felony), a prior offense must require the
intentional use of physical force or a substantial risk of the intentional use of
physical force. See United States v. Gomez-Leon, 545 F.3d 777, 787–88 (9th Cir.
2008). But California Penal Code § 148.10(a) makes it a crime to resist arrest and
thereby cause injury or death to a police officer — even if the defendant did not
intentionally use force or risk the intentional use of force. See People v. Superior
Court, 132 Cal. App. 4th 1525 (2005). And the underlying conviction documents
merely parrot the language of § 148.10(a), so Medina-Fructuoso’s conviction is not
an aggravated felony under the modified categorical approach. Accordingly, we
hold that the district court erred in imposing an 8-level enhancement. We thus
vacate his sentence and remand solely for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.