                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 24 2012

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 11-50444               U.S. COURT OF APPEALS



              Plaintiff - Appellee,              D.C. No. 3:11-cr-00006-GT-1

  v.
                                                 MEMORANDUM*
JORGE MEDINA-FRUCTUOSO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                             Submitted April 11, 2012**
                               Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.***




        *
             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).
       ***
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
                                        -2-

      Jorge Medina-Fructuoso pled guilty to one count of illegal reentry after

removal under 8 U.S.C. § 1326, and the district court sentenced him to 33 months’

imprisonment. Medina-Fructuoso now appeals: (1) the district court’s denial of the

parties’ joint motion to withdraw Medina-Fructuoso’s guilty plea; (2) the district

court’s denial of Medina-Fructuoso’s unopposed motion to calendar a hearing to

waive indictment on a proposed superseding information; and (3) the district

court’s imposition of an 8-level sentencing enhancement on the ground that

Medina-Fructuoso’s prior conviction for resisting a police officer causing serious

bodily injury under California Penal Code § 148.10(a) was categorically an

“aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C). We have jurisdiction under

28 U.S.C. § 1291.

      We review a district court’s denial of a motion to withdraw a guilty plea

under Federal Rule of Criminal Procedure 11(d) for abuse of discretion. See

United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985). Medina-Fructuoso

argues that the district court should have allowed him to withdraw his guilty plea

because the presentence report recommended that he be given a 16-level

enhancement for his prior conviction for resisting arrest — a possibility he claims

the parties had not contemplated at the time of the plea agreement. Although Rule

11(d)(2)(B) allows a defendant to withdraw a guilty plea for any “fair and just
                                         -3-

reason,” “[a] defendant cannot withdraw his plea because he realizes that his

sentence will be higher than he had expected.” United States v. Nostratis, 321 F.3d

1206, 1211 (9th Cir. 2003). Moreover, the parties’ plea agreement explicitly

contemplated the possibility that the PSR would uncover more information about

Medina-Fructuoso’s criminal history and affect his guidelines range. Thus, the

district court did not abuse its discretion in denying the parties’ motion to withdraw

Medina-Fructuoso’s guilty plea.

      Medina-Fructuoso also argues that the district court abused its discretion in

denying his unopposed motion to calendar a hearing to waive indictment on and

plead guilty to the proposed superseding information charging him with two counts

of illegal entry under 8 U.S.C. § 1325. Medina-Fructuoso’s motion for calendaring

was effectively a new plea agreement that he and the government were presenting

to the court: The government would dismiss the § 1326 charge and bring a

superseding information charging Medina-Fructuoso with two counts under

§ 1325, and in exchange, Medina-Fructuoso would waive indictment on the

superseding information and plead guilty to the § 1325 charges. We review a

district court’s rejection of a plea agreement for abuse of discretion. See In re

Morgan, 506 F.3d 705, 708 (9th Cir. 2007). Here, the district court rejected the

new plea agreement for the same reason it denied the parties’ motion to withdraw
                                          -4-

Medina-Fructuoso’s guilty plea, which, as explained above, was not an abuse of

discretion. Thus, the district court’s rejection of the new plea agreement was not

an abuse of discretion.

      Finally, the parties agree that the district court erred in holding that Medina-

Fructuoso’s prior conviction under California Penal Code § 148.10(a) was

categorically an aggravated felony warranting an 8-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(C). Under § 2L1.2(b)(1)(C), to constitute a “crime of

violence” (and thus an aggravated felony), a prior offense must require the

intentional use of physical force or a substantial risk of the intentional use of

physical force. See United States v. Gomez-Leon, 545 F.3d 777, 787–88 (9th Cir.

2008). But California Penal Code § 148.10(a) makes it a crime to resist arrest and

thereby cause injury or death to a police officer — even if the defendant did not

intentionally use force or risk the intentional use of force. See People v. Superior

Court, 132 Cal. App. 4th 1525 (2005). And the underlying conviction documents

merely parrot the language of § 148.10(a), so Medina-Fructuoso’s conviction is not

an aggravated felony under the modified categorical approach. Accordingly, we

hold that the district court erred in imposing an 8-level enhancement. We thus

vacate his sentence and remand solely for resentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
