The en banc court of appeals vacated a district court’s sentence and remanded the action to the original three-judge panel for consideration of remaining issues raised on appeal. The court overruled its prior holding that the modified categorical approach does not apply when a defendant’s crime of conviction is missing an element of the generic crime altogether. The court further overruled its prior decisions to the extent they held that a conviction under California Penal Code §459 qualified as a generic burglary conviction if the defendant pleaded guilty to entering a building “unlawfully” or a jury found the defendant guilty as charged in an indictment reciting that allegation.
Guillermo Aguila-Montes de Oca (Aguila) was convicted by a jury for illegal reentry after deportation. At sentencing, the district court determined that Aguila previously had pled guilty to first degree residential burglary in violation of California Penal Code §459. The court held that the burglary conviction qualified as “burglary of a dwelling” which warranted imposition of a sixteen-level enhancement under the United States Sentencing Guidelines for defendants previously deported after a conviction for a felony that is a crime of violence.
