                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 28 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10396

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00173-JCM

 v.
                                                 MEMORANDUM*
JORGE FRANCO-IBARRA, a.k.a.
Fernando Lomeli-Ibarra,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                            Submitted August 16, 2016**

Before:      O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      Jorge Franco-Ibarra appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

being a deported alien found unlawfully in the United States, in violation of 8


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and

remand for resentencing.

         In supplemental briefing, Franco-Ibarra contends that the district court erred

by applying a 16-level enhancement to his offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The presentence report (“PSR”) stated that Franco-Ibarra’s

prior conviction for coercion qualified as a crime of violence under U.S.S.G.

§ 4B1.1, a Guideline that is not applicable in this case and which defined “crime of

violence” differently than the relevant Guideline. Compare U.S.S.G. § 4B1.2(a)

(2014), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2014). Because the PSR applied

the wrong definition of “crime of violence,” the district court plainly erred by

relying on it. See United States v. Castillo-Marin, 684 F.3d 914, 921-22 (9th Cir.

2012).

      The government suggests that the district court’s error was not prejudicial

because the documents of conviction would demonstrate that the coercion statute is

divisible, see Mathis v. United States, 136 S. Ct. 2243, 2256-57 (2016), and that

Franco-Ibarra was convicted of a crime of violence. We cannot evaluate this claim

because the documents of conviction are not part of the record. Under these

circumstances, and given the substantial effect of the enhancement on Franco-

Ibarra’s Guidelines range, we conclude that the district court’s error affected


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Franco-Ibarra’s substantial rights and the fairness of judicial proceedings. See

Castillo-Marin, 684 F.3d at 927.

      Upon remand, if the government again seeks the 16-level enhancement, it

may submit Franco-Ibarra’s documents of conviction. See id. In that event, the

district court can determine in the first instance whether Franco-Ibarra’s prior

conviction under the Nevada coercion statute qualifies as a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

      In light of this disposition, we decline to consider Franco-Ibarra’s remaining

claims of sentencing error.

      VACATED and REMANDED for resentencing.




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