                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 30 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10265

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00100-RCJ-
                                                 VPC-1
  v.

SAUL BELTRAN,                                    MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                      Argued and Submitted January 13, 2012
                            San Francisco, California

Before: WALLACE, NOONAN, and M. SMITH, Circuit Judges.

       Saul Beltran appeals from a 48-month sentence imposed pursuant to his

guilty plea to illegal reentry by a deported alien under 8 U.S.C. § 1326(a). Beltran

contends that the district court erroneously applied a sixteen-level “crime of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on Beltran’s 2001

Nevada conviction of attempted burglary. We remand.

      We apply the modified categorical approach to determine whether Beltran’s

2001 conviction “necessarily rested” on facts satisfying the elements of generic

burglary, including the requirement of an “unlawful or unprivileged” entry. United

States v. Aguila-Montes de Oca, 655 F.3d 915, 940, 941 (9th Cir. 2011) (en banc).

The district court had before it two documents from the Nevada conviction. The

Judgment of Conviction stated that Beltran pleaded guilty to the statutory

definition of attempted burglary. Nevada burglary does not require an “unlawful

or unprivileged” entry. See, e.g., Stephans v. State, 262 P.3d 727, 729 (Nev. 2011)

(upholding burglary conviction for shoplifting); Hernandez v. State, 50 P.3d 1100,

1113 (Nev. 2002). Because the Judgment of Conviction did not indicate that

Beltran pleaded guilty “as charged” in the Information, the court could not

consider facts alleged in the Information. United States v. Vidal, 504 F.3d 1072,

1087 (9th Cir. 2007). Without more, it could not find that Beltran’s guilty plea

necessarily admitted the elements of generic burglary. See Aguila, 655 F.3d at 921

(citing Shepard v. United States, 544 U.S. 13, 26 (2005)). The sixteen-level crime

of violence enhancement was improper.




                                          2
      The error was not harmless. “A district court's mere statement that it would

impose the same above-Guidelines sentence no matter what the correct calculation

cannot, without more, insulate the sentence from remand, because the court's

analysis did not flow from an initial determination of the correct Guidelines

range.” United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011).

The sixteen-level enhancement significantly increased the Guidelines range to

which Beltran was exposed.

      We therefore AFFIRM the conviction but VACATE the sentence and

REMAND for resentencing. On remand, the government may produce, and the

court may consider, any documents from the 2001 Nevada conviction permitted

under Shepard and Aguila. See Shepard, 544 U.S. at 16, 26; Aguila, 655 F.3d at

921. We note, however, that police reports and the probation department’s

Presentence Investigation Report are not among these. See Aguila, 655 F.3d at 921

(Shepard “rejected the . . . contention that the sentencing court may look at police

reports . . . to determine what a guilty plea ‘necessarily admitted[.]’”)

      Each party to bear its own costs.




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