FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30158 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00113-RMP-1 JOSE MANUEL VALENCIA- MENDOZA, aka Jose OPINION Valencia-Vargas, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding Argued and Submitted December 6, 2018 Seattle, Washington Filed January 10, 2019 Before: Susan P. Graber, M. Margaret McKeown, and Morgan B. Christen, Circuit Judges. Opinion by Judge Graber 2 UNITED STATES V. VALENCIA-MENDOZA SUMMARY* Criminal Law The panel vacated a sentence for unlawfully reentering the United States after having been removed, and remanded for resentencing, in a case in which the district court applied a four-level increase to the offense level under U.S.S.G. § 2L1.2 on the ground that, prior to his removal order, the defendant had been convicted of a Washington state offense punishable by imprisonment for a term exceeding one year. In applying the four-level increase because the defendant’s Washington conviction carried a general statutory maximum term of imprisonment of five years, the district court applied this court’s precedent which required the district court to disregard the maximum term that the defendant actually could have received under state law. The panel held that this precedent is irreconcilable with later Supreme Court decisions—Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and Moncrieffe v. Holder, 569 U.S. 184 (2013), which held that when determining whether an offense is “punishable” by a certain term of imprisonment, courts must consider both a crime’s statutory elements and sentencing factors—and must be overruled. Because under the Washington statutes that prescribe a binding sentencing range, the actual maximum term that the defendant could have received was six months, the panel held * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. VALENCIA-MENDOZA 3 that the district court erred by concluding that the defendant’s offense was punishable by more than one year in prison. COUNSEL William Miles Pope (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant. Matthew F. Duggan (argued), Assistant United States Attorney; Joseph H. Harrington, United States Attorney; United States Attorney’s Office, Spokane, Washington; for Plaintiff-Appellee. OPINION GRABER, Circuit Judge: Defendant Jose Manuel Valencia-Mendoza pleaded guilty to unlawfully reentering the United States after having been removed, in violation of 8 U.S.C. § 1326(a). At sentencing, the district court applied a four-level increase to the total offense level, under United States Sentencing Guideline § 2L1.2, because the court concluded that Defendant had been convicted of a “felony” under Washington law. The commentary to § 2L1.2 defines “felony” 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. Defendant’s conviction under Washington law carried a general statutory maximum term of imprisonment of five years. The district court faithfully applied our precedent and stopped its analysis there: Because the general statutory 4 UNITED STATES ...
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