United States of America v. Jose Manuel Osua-Madricales

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NOT FOR PUBLICATION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.
JOSE MANUEL OSUA-MADRICALES,
Defendant - Appellant.
No. 10-10418
D.C. No. 2:10-cr-00437-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Jose Manuel Osua-Madricales appeals from the 45-month sentence imposed
following his guilty-plea conviction for reentry of a removed alien, in violation of
8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Osua-
Madricales’ counsel has filed a brief stating that there are no grounds for relief,
FILED
MAR 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-10418 2
along with a motion to withdraw as counsel of record. We provided the appellant
with the opportunity to file a pro se supplemental brief. No pro se supplemental
brief has been filed. We ordered counsel for both parties to submit supplemental
letter briefs to the court addressing whether, in light of this court’s recent decision
in Reina-Rodriguez v. United States, 655 F.3d 1182 (9th Cir. 2011), the district
court properly applied a 16-level sentencing enhancement based on defendant’s
2003 conviction under Arizona Revised Statute § 13-3407.
We decline the government’s request to take judicial notice of documents
that are not part of the district court record. See id. at 1193. We remand to the
district court so that the district court can apply a modified categorical approach in
determining whether Osua-Madricales was necessarily convicted of a drug
trafficking offense with respect to his conviction under Arizona Revised Statute
§ 13-3407. See Shepard v. United States, 544 U.S. 13, 16 (2005); Taylor v. United
States, 495 U.S. 575, 602 (1990).
The motion of Alex D. Gonzalez, 2340 W. Ray Road, Suite 1, Chandler, AZ
85224, to withdraw as counsel is GRANTED. The district court is instructed to
appoint new counsel.
VACATED and REMANDED.

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