United States of America v. Jesus Ramon Duarte-Aldana

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS RAMON DUARTE-ALDANA,
Defendant - Appellant.
No. 08-30131
D.C. No. 3:07-cr-00393-BR
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted February 1, 2010**
Portland, Oregon
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Defendant-Appellant Jesus R. Duarte-Aldana was convicted of one count of
illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). He appeals the
district court’s decision to enhance his sentence under United States Sentencing
FILED
FEB 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(C), which increases an alien’s offense level
by eight if he was previously deported after “a conviction for an aggravated
felony.” Duarte-Aldana argues both: (1) that the prior conviction relied upon by
the district court for the enhancement is not an “aggravated felony”; and (2) that
even if this prior conviction does qualify as an “aggravated felony,” the district
court was barred by the doctrine of collateral estoppel from making such a
determination. We reject both of these arguments and affirm.
I
By reference, the Sentencing Guidelines include in their definition of
“aggravated felony” “an offense described in [18 U.S.C. § 922(g)],” the federal
felon in possession statute. See U.S.S.G. § 2L1.2(b)(1)(C) & cmt. n.1; 8 U.S.C.
§ 1101(a)(43)(E)(ii). Section 922(g), in turn, makes it unlawful for previously
convicted felons to “possess in or affecting commerce, any firearm . . . .” 18
U.S.C. § 922(g). Duarte-Aldana was convicted under Oregon Revised Statute
§ 166.270(1), which makes it unlawful for a person previously convicted of a
felony to “own[] or ha[ve] in the person’s possession or under the person’s custody
or control any firearm . . . .” Our inquiry is whether, under the categorical or
modified categorical approach, see Taylor v. United States, 495 U.S. 575, 602
(1990), Duarte-Aldana’s prior Oregon felon in possession conviction meets the

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federal definition of felon in possession of a firearm set forth in 18 U.S.C. §
922(g).
We need not discuss the categorical approach because Duarte-Aldana’s prior
felon in possession conviction clearly qualifies as an “aggravated felony” under the
modified categorical approach. The indictment in Duarte-Aldana’s felon in
possession case states that Duarte-Aldana “did unlawfully and knowingly have in
[his] possession a firearm . . . .” Thus, the indictment demonstrates that Duarte-
Aldana committed the generic crime of “possess[ing] . . . any firearm.” 18 U.S.C.
§ 922(g); see also United States v. Castillo-Rivera, 244 F.3d 1020, 1023 & n.3 (9th
Cir. 2001).
II
In addition to the instant illegal reentry conviction, Duarte-Aldana was
convicted for illegal reentry in 1998. In that case, the district court adopted the
presentence report (“PSR”) as its own findings and conclusions in applying a four-
level enhancement to Duarte-Aldana’s sentence under U.S.S.G. § 2L1.2(b)(1). The
PSR listed Duarte-Aldana’s prior Oregon conviction for being a felon in
possession of a firearm in the criminal history section, but did not classify that
conviction as an “aggravated felony.” Thus, Duarte-Aldana argues that the issue of
whether his felon in possession conviction qualifies as an “aggravated felony”

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under § 2L1.2 was already litigated in his 1998 case, meaning that the district court
in the present case was collaterally estopped from characterizing his felon in
possession conviction as an “aggravated felony.”
However, this is not an appropriate case for applying the doctrine of
collateral estoppel. See United States v. Arnett, 327 F.3d 845, 848 (9th Cir. 2003)
(establishing this court’s test for determining when to apply the doctrine of
collateral estoppel). The issue of whether Duarte-Aldana’s prior conviction
qualifies as an “aggravated felony” was not actually litigated in the 1998 illegal
reentry case. Neither the government nor Duarte-Aldana objected to the PSR’s
Guidelines calculation in the 1998 sentencing proceeding, and the district court did
not discuss whether Duarte-Aldana’s felon in possession conviction qualified as an
“aggravated felony.”
AFFIRMED.

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