United States of America v. Jesus Madrid-Cuen

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. 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NOT FOR PUBLICATION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 MADRID-CUEN,
Defendant - Appellant.
No. 07-10443
D.C. No. CR-05-00073-ECR-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Submitted September 16, 2011**
San Francisco, California
Before: TROTT, THOMAS, and GRABER, Circuit Judges.
Defendant Jesus Madrid-Cuen pleaded guilty to unlawful reentry in violation
of 8 U.S.C. § 1326(a). The district court sentenced him to a term of 63 months’
imprisonment after applying a 16-level enhancement for a prior conviction of a
"crime of violence." Following Defendant’s timely appeal, we held that imposition
FILED
OCT 12 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of the enhancement was plain error because the California burglary statute under
which Defendant was convicted was broader than the "generic" federal equivalent
and "there were no judicially-noticeable documents relied upon by the district court
that established a crime of violence under [U.S.S.G.] § 2L1.2(b)(1)(A)." United
States v. Madrid-Cuen (Madrid I), 201 F. App’x 572, 573 (9th Cir. 2006)
(unpublished decision).
On remand, the district court conducted a second sentencing hearing and
imposed the same sentence in reliance on additional documents. The district court
held that those documents supported the 16-level enhancement. We disagreed and
again remanded the case to the district court for a new sentencing proceeding.
United States v. Madrid-Cuen (Madrid II), 244 F. App’x 119, 120 (9th Cir. 2007)
(unpublished decision).
At the third sentencing hearing, the court again imposed a 63-month
sentence using the 16-level enhancement, this time relying on another document.
Again Defendant appealed, and we deferred ruling to await the en banc decision in
United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th
Cir. Aug. 11, 2011) (en banc) (per curiam).
Both parties, and we, agree that, under Aguila-Montes, the documents in the
record are insufficient to establish that Defendant was convicted of "burglary of a

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dwelling." As stated in its supplemental brief, "the United States concedes that,
based on this Court’s current precedent, Madrid-Cuen’s sentence must be vacated
and remanded for resentencing without the 16-level enhancement." Defendant, for
his part, has conceded that an 8-level enhancement is appropriate.
SENTENCE VACATED; REMANDED with instructions to resentence
using an 8-level enhancement.

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