We review the district court's interpretation of the Sentencing Guidelines and the aggravated felony statute de novo. United States v. Sandoval-Barajas, 206 F.3d 853, 854 (9th Cir. 2000).
The Ninth Circuit disagreed. It held that the commerce element of § 922(g)(1) was "merely a jurisdictional basis" and therefore not essential to whether the state felon-in-possession offense was an aggravated felony. Id. at 1023 (quoting United States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir. 2000)). In reaching that conclusion, the Ninth Circuit first examined the text of § 101(a)(43). It noted that Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies, since § 101(a)(43) explicitly states in its penultimate sentence that an aggravated felony is "an offense described in this paragraph whether in violation of Federal or State law."
We look to the statutory definition of the state crime to determine whether it is an "aggravated felony." United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994); see also United States v. Sandoval-Barajas, 206 F.3d 853, 855-56 (9th Cir. 2000). Both parties and the District Court assumed that Portillo-Mendoza's convictions constituted an "aggravated felony".
We held in United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994), that to determine whether a state crime is an "aggravated felony," we look at the statutory definition of the crime. See also United States v. Sandoval-Barajas, 206 F.3d 853, 855-56 (9th Cir. 2000). Since Trinidad-Aquino did not go to trial on his state charges and his state plea colloquy was not made part of the record, "the issue is not whether [the] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the state statute] constitutes an aggravated felony."
Defendant was convicted of illegal reentry into United States, following entry of guilty plea in the United States District Court for the Eastern District of Washington, Fred L. Van Sickle, J. Defendant appealed sentence. Following remand for resentencing, 206 F.3d 853, the district court again enhanced sentence on the basis of a prior aggravated felony, and defendant appealed. The Court of Appeals held that the district court properly considered whether defendant's sentence could be enhanced on the basis of a different prior aggravated felony than the state conviction found on prior appeal not to be an aggravated felony.
II. ANALYSIS As we noted in United States v. Sandoval-Barajas, 206 F.3d 853, 854 (9th Cir. 2000), under U.S.S.G. § 2L1.2 "[s]entencing is much harsher for an alien found in the United States after deportation if the conviction preceding his deportation was for an `aggravated felony.'" Ceron-Sanchez argues that his March 27, 1996 attempted aggravated assault conviction does not constitute an aggravated felony under the Guidelines, and therefore, the district court erred in increasing his base offense level by 16 levels under U.S.S.G. § 2L1.2(b) (1)(A).
The first question in this case is whether the Arizona statute Defendant was convicted under extends to a range of conduct broader than that covered by 18 U.S.C. § 922(g)(5). Defendant relies on United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) for the proposition that the Arizona statute is broader than Section 922(g)(5). In Sandoval-Barajas, the issue was whether the defendant's prior conviction under a Washington statute that made it a felony for any non-registered alien to possess a firearm was an "aggravated felony" as defined in USSG § 2L1.2(b)(1)(C).
The Ninth Circuit has held that a California felon-in-possession-of-a-firearm statute qualifies as an aggravated felony for § 1101(a)(43) purposes because the interstate commerce element of its federal counterpart “is merely a jurisdictional basis not essential to whether the state crime is an aggravated felony.” United States v. Castillo–Rivera, 244 F.3d 1020, 1023 (9th Cir.2001) (quoting United States v. Sandoval–Barajas, 206 F.3d 853, 856 (9th Cir.2000)). “The wording of 8 U.S.C. § 1101(a)(43) makes evident that Congress clearly intended state crimes to serve as predicate offenses for the purpose of defining what constitutes an aggravated felony,” and [i]nterpreting the jurisdictional element ... to be necessary in order for a state [offense] to constitute an aggravated felony ... would reduce the number of state [offenses] that qualify to no more than a negligible number.... If we were to construe the jurisdictional nexus of the federal ... provision to be a necessary element for a state crime to qualify as an aggravated felony, we would undermine the language of the aggravated felony statute and the evident intent of Congress.
In short, `the full range of conduct encompassed' by the DUI statute does not constitute an aggravated felony, which has at a minimum a `reckless' intent requirement." 273 F.3d 1224, 1228 (9th Cir. 2001) (quoting United States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir. 2000)). In United States v. Hernandez-Castellanos, 287 F.3d 876 (9th Cir. 2002), we held that conviction under Arizona's reckless endangerment statute for driving under the influence of alcohol did not constitute a crime of violence because not all conduct punishable under Arizona Revised Statutes § 13-1201 would constitute a crime of violence under 18 U.S.C. § 16(b).
Because petitioner was convicted pursuant to a plea and the transcript of his state plea colloquy is not a part of the record, the issue is whether "`the full range of conduct encompassed by [California Penal Code § 422] constitutes an aggravated felony.'" United States v. Trinidad-Aquino, 259 F.3d 1140, 1143 (9th Cir. 2001) (quoting United States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir. 2000)). Thus, the inquiry is whether there is any way that petitioner here could have violated § 422 without committing a "crime of violence."