FILED
NOT FOR PUBLICATION AUG 02 2012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. 08-10503
Plaintiff - Appellee, D.C. No. 4:08-CR-0525-DCB
v.
MEMORANDUM *
SANTIAGO AGUILAR-BALBUENA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted July 16, 2012
San Francisco, California
Before: FERNANDEZ and PAEZ, Circuit Judges, and SETTLE, District Judge.**
Santiago Aguilar-Balbuena (“Aguilar-Balbuena”) appeals from the 30-
month sentence imposed following his guilty-plea conviction to illegal re-entry
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we vacate the sentence and remand for re-sentencing on an
open record.
“We have stated that ‘[a] defendant’s waiver of his appellate rights is
enforceable if (1) the language of the waiver encompasses his right to appeal on the
grounds raised, and (2) the waiver is knowingly and voluntarily made.’” United
States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009) (alteration in original)
(quoting United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005), overruled
on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.
2007) (en banc)). Here, Aguilar-Balbuena’s plea agreement contained six separate
sentencing ranges that could be applied to him depending on his criminal history.
Specifically, the first sentencing range states that “[u]nder the sentencing
guidelines, as set forth in U.S.S.G. § 2L1.2(a) and (b)(1)(A), if the defendant has a
prior felony conviction for . . . a crime of violence . . . then the government and
defendant agree the defendant’s sentence shall be as follows: . . . 30 to 37 months
of imprisonment if defendant’s Criminal History Category is II . . . .” We conclude
that Aguilar-Balbuena did not knowingly waive his right to appeal the district
court’s determination of whether his prior burglary conviction qualified as a “crime
of violence” under U.S.S.G.
2
§ 2L1.2(b)(1)(A)(ii). The terms of Aguilar-Balbuena’s plea agreement are unclear
in explaining what is meant by waiving his right to appeal the sentence “providing
the sentence is consistent with this agreement.” The Magistrate Judge, during the
plea colloquy, did not ask Aguilar-Balbuena if he understood that he was waiving
his right to appeal the district court’s sentence provided the sentence was
“consistent with [the plea] agreement”, nor did he pursue any clarification on the
record as to the meaning of that phrase. See United States v. Baramdyka, 95 F.3d
840, 843 (9th Cir. 1996) (“This court looks to the circumstances surrounding the
signing and entry of the plea agreement to determine whether the defendant agreed
to its terms knowingly and voluntarily.”).
Further, we conclude that Aguilar-Balbuena’s prior burglary conviction in
Illinois is not categorically a “crime of violence” under U.S.S.G. §
2L1.2(b)(1)(A)(ii). At the time of Aguilar-Balbuena’s conviction, Illinois defined
the term “dwelling” contained in the statute of conviction as “a house, apartment,
mobile home, trailer, or other living quarters in which at the time of the alleged
offense the owners or occupants actually reside or in their absence intend within a
reasonable period of time to reside.” Ill. Rev. Stat. 1987, ch. 38, par. 2 -- 6 (b).
Because this definition of a “dwelling” is broader than the generic federal
definition, as explained in United States v. Grisel, 488 F.3d 844, 849-50 (9th Cir.
3
2007) (en banc), a burglary conviction under this statutory scheme is not
categorically a crime of violence.
VACATED AND REMANDED.
4