                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 25 2013

                                                                         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. 11-50537

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00603-SVW-1

  v.
                                                 MEMORANDUM *
JORDY EZEQUIEL OCHOA, AKA Jordy
Ochoa, AKA Jordy Ezequil Ochoa-
Cordova,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted February 5, 2013
                               Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

       Jordy Ezequiel Ochoa (“Ochoa”) appeals his conviction and sentence

following a guilty plea to one count of illegal reentry following deportation, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirm his conviction through a guilty plea, vacate his sentence, and remand for

resentencing.

      1.     Ochoa claims that his guilty plea was not knowing, voluntary, and

intelligent, because the district court failed to discuss the sentencing guidelines and

other sentencing factors under 18 U.S.C. § 3553(a), as required by Federal Rule of

Criminal Procedure 11(b)(1)(M). Because Ochoa failed to raise this issue below,

we review for plain error. United States v. Collins, 684 F.3d 873, 881 (9th Cir.

2012). Although the district court violated Rule 11(b)(1)(M), the error did not

affect Ochoa’s substantial rights. See United States v. Borowy, 595 F.3d 1045,

1049 (9th Cir. 2010) (“To show that the error affected his substantial rights,

[defendant] must prove that there is a reasonable probability that, but for the error,

he would not have entered the plea.” (internal quotation marks omitted)). The

government’s overall case was strong, and Ochoa failed to identify any defenses.

Further, by the time of the sentencing hearing, Ochoa was clearly aware of how the

sentencing guidelines operated; yet, he did not withdraw his plea. Viewing the

entire record, we find that the district court’s error was inconsequential to Ochoa’s

decision to plead guilty. See id. (stating that in determining whether the error

affected substantial rights, we consider the overall strength of the government’s

case and any possible defenses, evidence showing that any misunderstanding was


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inconsequential to the defendant’s decision, and evidence that might have affected

the defendant’s choice regardless of any Rule 11 error). Because Ochoa has failed

to establish plain error, we affirm his conviction.

      2.     Next, Ochoa argues that the district court plainly erred by concluding

that his conviction under Cal. Penal Code § 12021(a)(1) qualified as an aggravated

felony.1 We agree. To determine whether a particular offense qualifies as an

aggravated felony, the district court must apply the Taylor categorical and

modified categorical frameworks. Carlos-Blaza v. Holder, 611 F.3d 583, 587–88

(9th Cir. 2010); Young v. Holder, 697 F.3d 976, 982 (9th Cir. 2012) (stating that

Taylor “establish[es] the rules by which the government may use prior state

convictions to enhance certain federal sentences and to remove certain aliens”).

The district court’s failure to do so clearly affects Ochoa’s substantial rights and

the fairness of the judicial proceeding, because the record is insufficient to

establish that Ochoa was convicted of an aggravated felony. Therefore, we vacate

the sentence. Because the matter is remanded for sentencing, we need not reach

Ochoa’s remaining sentencing claims.


      1
         The government argues that, because defense counsel conceded below, the
invited error doctrine bars review of the district court’s decision. We disagree
because there is no evidence that Ochoa “deliberately waived” his right to
challenge this determination. See United States v. Gallegos-Galindo, 704 F.3d
1269 (9th Cir. 2013).

                                           3
      3.     We deny the government’s request for judicial notice of the verdict

form and the jury instructions given in Ochoa’s state court proceedings. Whether

these documents show that Ochoa was convicted of possession of a firearm, rather

than ownership of the firearm, is subject to reasonable dispute. Fed. R. Evid.

201(b) (“The court may judicially notice a fact that is not subject to reasonable

dispute . . . .”). On remand, the parties may submit documents permissible under

Shepard v. United States, 544 U.S. 13, 26 (2005). See United States v.

Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012) (permitting the government to

submit additional documents on remand).

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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