Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Ronald C. Rachow, Reno, NV, for Plaintiff-Appellee.
Anne R. Traum, Esq., Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding. D.C. No. CR-00-00137-HDM.
Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Chad Allen English appeals the 24-month sentence imposed after revocation of his supervised release. We have jurisdiction under 28 U.S. C.§ 1291, and we vacate and remand for resentencing.
English contends that the district court erred by concluding that he committed a Grade A violation of his supervised release under U.S. S.G. § 7B1.1 (policy statement). Specifically, English contends that the sentencing court erred in concluding that English's violation conduct constituted a felony battery. We agree.
In United States v. Corona-Sanchez, 291 F.3d 1201, 1208-11 (9th Cir.2002) (en banc), we held that sentencing courts should not consider recidivist enhancements in determining whether a state-law prior conviction is a felony. Therefore, to the extent that the district court in this case concluded that English had committed a felony battery because it was a third-time offense, that conclusion provided an invalid basis for determining that English's conduct constituted a Grade A violation. See id.
Page 95.
Appellee contends that the district court's characterization of English's prior conviction as a felony was permissible because, under Nev.Rev.Stat. § 200.481(f), a probationer who commits battery is guilty of a felony. We are not persuaded. We held in United States v. Moreno-Hernandez, 397 F.3d 1248, 1254 n. 7 (9th Cir.2005), that the rule of Corona-Sanchez did not implicate offenses, such as being a felon in possession of a firearm, that are only illegal because of an offender's status. The offense in the present case does not fit the exception carved out in footnote 7 of Moreno-Hernandez, however, because battery is not an offense that is only illegal when committed by a probationer. Id.
The district court did not have the benefit of Moreno-Hernandez when it sentenced English on the supervised release violation because that case was not decided until after appellant's sentencing. We vacate and remand for the district court's reconsideration of English's sentence in light of Moreno-Hernandez.
VACATED and REMANDED.