                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          APR 09 2012

                                                                         MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




UNITED STATES OF AMERICA,                        No. 07-10524

               Plaintiff - Appellee,             D.C. No. CR-06-01449-CKJ
                                                 District of Arizona,
  v.                                             Tucson

PEDRO ROSALES-MARTINEZ, a.µ.a.
Pete M. Rosales,                                 ORDER

               Defendant - Appellant.



Before:       GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       The government's motion to amend the memorandum disposition to alter the

remedy is granted.

       This court's memorandum disposition, filed December 21, 2011, is amended

as follows:

       1.     The sentence on page one, line three to page two, line one that reads:

'We have jurisdiction under 28 U.S.C. y 1291, and we vacate and remand for

resentencing,' is deleted and replaced with: 'We have jurisdiction under 28 U.S.C.

y 1291, and we affirm without prejudice to an application by Rosales-Martinez to

the district court to vacate his sentence and resentence him consistent with this

decision.'
      2.       The sentence on page three, lines 10 through 11, that reads:

'Accordingly, we vacate the sentence and remand for resentencing consistent with

this disposition. See Aguila-Montes de Oca, 655 F.3d at 946-47,' is deleted and

replaced with: 'Accordingly, Rosales-Martinez is entitled to resentencing.

However, the district court cannot sentence Rosales-Martinez at this time because

he has been released and deported. We accordingly affirm the sentence imposed

by the district court, but do so without prejudice to an application by Rosales-

Martinez to the district court to vacate his sentence and resentence him consistent

with this decision at such time, if ever, that he is in this country and available for

resentencing. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th

Cir. 2004).'

      3.       Page three, line 14, that reads: 'VACATED and REMANDED,' is

deleted and replaced with: 'AFFIRMED.'




                                            2                                     07-10524
                                                                            FILED
                            NOT FOR PUBLICATION                              APR 09 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 07-10524

               Plaintiff - Appellee,             D.C. No. CR-06-01449-CKJ

  v.
                                                 MEMORANDUM *
PEDRO ROSALES-MARTINEZ, a.µ.a.
Pete M. Rosales,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted December 19, 2011**

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Pedro Rosales-Martinez appeals from the 65-month sentence imposed

following his bench-trial conviction for attempted illegal reentry after deportation,

in violation of 8 U.S.C. y 1326. We have jurisdiction under 28 U.S.C. y 1291, and



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
we affirm without prejudice to an application by Rosales-Martinez to the district

court to vacate his sentence and resentence him consistent with this decision.

      Rosales-Martinez contends that the district court committed plain error when

it imposed a 16-level enhancement pursuant to U.S.S.G. y 2L1.2(b)(1)(A)(ii) based

on his conviction for attempted second-degree burglary in violation of Arizona

Revised Statutes y 13-1507.

      Rosales-Martinez's conviction is not categorically a crime of violence under

U.S.S.G. y 2L1.2(b)(1)(A)(ii). See United States v. Bonat, 106 F.3d 1472, 1475

(9th Cir. 1997) ('Arizona courts have expanded the [burglary] statute beyond

generic burglary because they have interpreted the statute to allow a conviction

even if the intent to commit the crime was formed after entering the structure

and/or the entry was privileged.').

      The district court plainly erred in applying the 16-level enhancement,

because the conviction records relating to Rosales-Martinez's burglary conviction

are insufficient under the modified categorical approach to demonstrate that his

conviction necessarily rested on facts satisfying the elements of generic burglary.

See United States v. Aguila-Montes de Oca, 655 F.3d 915, 945-46 (9th Cir. 2011)

(en banc). At sentencing, the government introduced the complaint, the

information, verdict forms and sentencing papers. These documents, as well as the

jury instructions, simply repeat the elements of Arizona burglary and do not


                                          2                                      07-10524
establish that Rosales-Martinez formed the intent to commit the burglary before

entering the structure, or that his entry was unlawful or unprivileged, or that he

burgled an immovable structure. See United States v. Terrell, 593 F.3d 1084, 1092

(9th Cir. 2010); see also Aguila-Montes de Oca, 655 F.3d at 946 ('[C]onviction

records for [Arizona] burglary cannot demonstrate that a defendant was convicted

of generic burglary unless they do something more than simply repeat the elements

of [Arizona] burglary.').

       Erroneous application of a sentencing enhancement affects the defendant's

substantial rights and 'affect[s] both the fairness and integrity of our judicial

system.' United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir. 2001).

Accordingly, Rosales-Martinez is entitled to resentencing. However, the district

court cannot sentence Rosales-Martinez at this time because he has been released

and deported. We accordingly affirm the sentence imposed by the district court,

but do so without prejudice to an application by Rosales-Martinez to the district

court to vacate his sentence and resentence him consistent with this decision at

such time, if ever, that he is in this country and available for resentencing. See

United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th Cir. 2004).

       We grant Rosales-Martinez's requests for judicial notice, and deny as moot

his motion to lift the stay.

       AFFIRMED.


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