United States of America v. Catalino Pineda

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Lloyd D. George, Senior District Judge for the U.S.**
District Court for Nevada, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CATALINO PINEDA,
Defendant - Appellant.
No. 10-10508
D.C. No. 4:09-cr-02542-FRZ-
CRP-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted December 8, 2011
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and GEORGE, Senior District Judge.**
Catalino Pineda appeals his sentence for his criminal conviction for illegal
reentry after removal under 8 U.S.C. § 1326(a), with an enhancement under 8
U.S.C. § 1326(b) for having previously been convicted of an aggravated felony.
FILED
MAR 22 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

We do not opine on any tension between United States v. Velasquez-Reyes,1
427 F.3d 1227, 1230 (9th Cir. 2005) (interpreting U.S.S.G. § 2L1.2 cmt. 1(B)(iii)
(2001)), and Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007)
(interpreting 8 U.S.C. § 1101(a)(43)), in the method to be used to determine
whether a prior conviction qualifies as an aggravated felony because any such
decision is not necessary in this case.
2
Pineda had previously been convicted of arson in violation of California Penal
Code § 451(c).
Pineda’s conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a),
carries a statutory maximum sentence of 2 years, but that maximum goes up to 10
years if he was previously convicted of a felony, and up to 20 years if he was
previously convicted of an aggravated felony. 8 U.S.C. § 1326(b).
Pineda concedes that his conviction qualifies as a felony under 8 U.S.C.
§ 1326(b)(1), whether or not it is an aggravated felony under 8 U.S.C.
§ 1326(b)(2). Thus, the district court could have sentenced Pineda up to 10 years.1
We therefore affirm the sentence of forty-eight months imposed by the district
court, and remand for the district court to correct the judgment to cite 8 U.S.C.
§ 1326(b)(1) instead of 8 U.S.C. § 1326(b)(2).
AFFIRMED and REMANDED.

-- 2 of 2 --