United States of America v. Hernan Perez-Gomez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERNAN PEREZ-GOMEZ,
Defendant - Appellant.
No. 09-10005
D.C. No. 4:08-cr-00197-DCB-
HCE
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: HUG, REINHARDT and BYBEE, Circuit Judges.
Hernan Perez-Gomez (“defendant”) appeals his 46-month sentence imposed
for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Defendant
argues that the district court erred by imposing a sixteen-level enhancement to his
base offense level based on a finding that his prior conviction was a “crime of
FILED
APR 06 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). In 2007, the defendant was
convicted of attempted unlawful sexual conduct with a minor in violation of Ohio
Revised Code § 2907.04 and § 2923.02. For this state conviction, he was
sentenced to 64 days in jail. In determining his sentence for the illegal reentry
offense, the district court found that this prior state conviction was a “crime of
violence,” imposed a sixteen-level enhancement, and sentenced the defendant to 46
months’ imprisonment. We have jurisdiction under 28 U.S.C. § 1291 and review
de novo a district court’s determination of whether a prior conviction is a “felony”
that is a “crime of violence” under U.S.S.G. § 2L1.2. United States v. Laurico-
Yeno, 590 F.3d 818, 820 (9th Cir. 2010). We hold that it was error to impose the
sixteen-level enhancement because the defendant’s prior conviction is not a
“felony” under U.S.S.G. § 2L1.2(b)(1)(A) and remand to the district court for
resentencing.
First, the government argues that we may not address whether defendant’s
conviction is a “felony” under U.S.S.G. § 2L1.2 (b)(1)(A) because he did not
present this argument in his opening brief. Although an issue is generally waived
if it is not argued in an appellant’s opening brief, we have discretion to review an
issue if (1) good cause is shown or the failure to address the issue would result in
manifest injustice; (2) the issue was raised in appellee’s brief; or (3) the failure to

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raise the issue properly does not prejudice the opposing party’s defense. United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). In this case, two exceptions
apply. First, the failure of this court to address whether the defendant’s prior
conviction is a “felony” would result in manifest injustice because it was error to
impose the sixteen-level enhancement with the result that the defendant received a
46-month sentence when he should have received a zero- to six-month sentence.
See id. (holding that manifest injustice would result if the court failed to address
the issue of the nonunanimous jury verdict). Second, if this court addresses the
issue, the government is not prejudiced because both parties submitted post-
hearing briefs on this issue and it is purely a question of law. See id. (holding that
the government was not prejudiced because it was permitted to fully address the
issue). The court, thus, may address whether the conviction was a “felony” under
the Guidelines.
Next, the government argues that the defendant is judicially estopped from
asserting that his prior conviction is not a “felony” because he stated in district
court that a four-level enhancement was appropriate. “Judicial estoppel is an
equitable doctrine that precludes a party from gaining an advantage by asserting
one position, and then later seeking an advantage by taking a clearly inconsistent
position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.

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2001). It is a doctrine that “seeks to prevent the deliberate manipulation of the
courts” and “protect the integrity of the judicial process by preventing a litigant
from ‘playing fast and loose with the courts.’” Helfand v. Gerson, 105 F.3d 530,
534, 536 (9th Cir. 1997). Factors to consider to determine whether to apply
judicial estoppel include (1) whether the party’s position is “clearly inconsistent”
with its prior position; (2) whether the party succeeded in persuading a court to
accept the earlier position, so that accepting a later inconsistent position creates a
perception that the court has been misled; and (3) whether the party seeking to
assert the later position would gain an unfair advantage or the opposing party
would suffer an unfair detriment. Hamilton, 270 F.3d at 782-83.
Here, judicial estoppel does not apply because the defendant did not clearly
present inconsistent arguments, he did not attempt to mislead or deceive the court,
an earlier position was not accepted, and the government’s defense has not been
impaired. The defendant did not present “clearly inconsistent” arguments because
in the district court he argued that the sixteen-level enhancement was improper and
within this argument, in one sentence, stated that the appropriate increase was by
four levels. One sentence within an argument does not equate to a new position.
The defendant never presented a full and clear argument in district court that his
prior conviction was a felony. He only included one sentence suggesting this

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within his argument that the sixteen-level enhancement was improper. Also, the
defendant did not previously assert a position that creates a perception that the
court has been misled and did not attempt to deliberately manipulate the court.
Any earlier position regarding the four-level enhancement was not accepted.
Finally, the government is not impaired by our consideration of the argument
because it was allowed to fully brief the issue. Thus, the defendant is not judicially
estopped from asserting the issue of whether his prior conviction is a “felony”
under the Guidelines. See Helfand, 105 F.3d at 536 (citing standard).
The district court erred in imposing the sixteen-level enhancement because
the defendant’s prior conviction is not a “felony” that is a “crime of violence,”
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Under § 2L1.2(b)(1)(A)(ii), if a defendant
was previously deported or remained unlawfully in the United States after “a
conviction for a felony that is...a crime of violence” then the court increases the
base offense level by sixteen levels. Under that section, a felony is defined as “any
federal, state, or local offense punishable by imprisonment for a term exceeding
one year.” U.S.S.G. § 2L1.2, cmt. n.2 (emphasis added). Here, the defendant’s
prior state conviction is a fifth degree offense that is punishable by no more than
twelve months of imprisonment. OHIO REV. CODE ANN. §§ 2907.04(B)(1),
2923.02(E)(1), 2929.14(A)(5). Because the prior conviction is punishable by no

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more than twelve months of imprisonment at sentencing, the prior conviction does
not constitute a “felony” under § 2L1.2(b)(1)(A). See United States v. Ballesteros-
Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003) (holding that the maximum penalty for
the conviction was one year of jail and that it was not a felony under U.S.S.G. §
2L1.2); United States v. Robles-Rodriguez, 281 F.3d 900, 902-06 (9th Cir. 2002)
(holding that the conviction was not punishable for more than one year and was not
a felony under U.S.S.G. § 2L1.2); United States v. Corona-Sanchez, 291 F.3d
1201, 1213 (9th Cir. 2002) (en banc) (holding that maximum sentence for theft
offense was imprisonment for six months and was not a felony). Thus, because the
district court erred in imposing a sixteen-level enhancement to defendant’s base
offense level, we vacate the defendant’s sentence and remand to the district court
for resentencing.
No petition for rehearing will be entertained and the mandate shall issue
forthwith. See Fed. R. App. P. 2.
VACATED and REMANDED.

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