                                                                           FILED
                           NOT FOR PUBLICATION                              APR 06 2010

                                                                        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. 09-10005

             Plaintiff - Appellee,               D.C. No. 4:08-cr-00197-DCB-
                                                 HCE
  v.

HERNAN PEREZ-GOMEZ,                              MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.

       Hernan Perez-Gomez (“defendant”) appeals his 46-month sentence imposed

for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Defendant

argues that the district court erred by imposing a sixteen-level enhancement to his

base offense level based on a finding that his prior conviction was a “crime of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). In 2007, the defendant was

convicted of attempted unlawful sexual conduct with a minor in violation of Ohio

Revised Code § 2907.04 and § 2923.02. For this state conviction, he was

sentenced to 64 days in jail. In determining his sentence for the illegal reentry

offense, the district court found that this prior state conviction was a “crime of

violence,” imposed a sixteen-level enhancement, and sentenced the defendant to 46

months’ imprisonment. We have jurisdiction under 28 U.S.C. § 1291 and review

de novo a district court’s determination of whether a prior conviction is a “felony”

that is a “crime of violence” under U.S.S.G. § 2L1.2. United States v. Laurico-

Yeno, 590 F.3d 818, 820 (9th Cir. 2010). We hold that it was error to impose the

sixteen-level enhancement because the defendant’s prior conviction is not a

“felony” under U.S.S.G. § 2L1.2(b)(1)(A) and remand to the district court for

resentencing.

      First, the government argues that we may not address whether defendant’s

conviction is a “felony” under U.S.S.G. § 2L1.2 (b)(1)(A) because he did not

present this argument in his opening brief. Although an issue is generally waived

if it is not argued in an appellant’s opening brief, we have discretion to review an

issue if (1) good cause is shown or the failure to address the issue would result in

manifest injustice; (2) the issue was raised in appellee’s brief; or (3) the failure to


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raise the issue properly does not prejudice the opposing party’s defense. United

States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). In this case, two exceptions

apply. First, the failure of this court to address whether the defendant’s prior

conviction is a “felony” would result in manifest injustice because it was error to

impose the sixteen-level enhancement with the result that the defendant received a

46-month sentence when he should have received a zero- to six-month sentence.

See id. (holding that manifest injustice would result if the court failed to address

the issue of the nonunanimous jury verdict). Second, if this court addresses the

issue, the government is not prejudiced because both parties submitted post-

hearing briefs on this issue and it is purely a question of law. See id. (holding that

the government was not prejudiced because it was permitted to fully address the

issue). The court, thus, may address whether the conviction was a “felony” under

the Guidelines.

      Next, the government argues that the defendant is judicially estopped from

asserting that his prior conviction is not a “felony” because he stated in district

court that a four-level enhancement was appropriate. “Judicial estoppel is an

equitable doctrine that precludes a party from gaining an advantage by asserting

one position, and then later seeking an advantage by taking a clearly inconsistent

position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.


                                           3
2001). It is a doctrine that “seeks to prevent the deliberate manipulation of the

courts” and “protect the integrity of the judicial process by preventing a litigant

from ‘playing fast and loose with the courts.’” Helfand v. Gerson, 105 F.3d 530,

534, 536 (9th Cir. 1997). Factors to consider to determine whether to apply

judicial estoppel include (1) whether the party’s position is “clearly inconsistent”

with its prior position; (2) whether the party succeeded in persuading a court to

accept the earlier position, so that accepting a later inconsistent position creates a

perception that the court has been misled; and (3) whether the party seeking to

assert the later position would gain an unfair advantage or the opposing party

would suffer an unfair detriment. Hamilton, 270 F.3d at 782-83.

      Here, judicial estoppel does not apply because the defendant did not clearly

present inconsistent arguments, he did not attempt to mislead or deceive the court,

an earlier position was not accepted, and the government’s defense has not been

impaired. The defendant did not present “clearly inconsistent” arguments because

in the district court he argued that the sixteen-level enhancement was improper and

within this argument, in one sentence, stated that the appropriate increase was by

four levels. One sentence within an argument does not equate to a new position.

The defendant never presented a full and clear argument in district court that his

prior conviction was a felony. He only included one sentence suggesting this


                                            4
within his argument that the sixteen-level enhancement was improper. Also, the

defendant did not previously assert a position that creates a perception that the

court has been misled and did not attempt to deliberately manipulate the court.

Any earlier position regarding the four-level enhancement was not accepted.

Finally, the government is not impaired by our consideration of the argument

because it was allowed to fully brief the issue. Thus, the defendant is not judicially

estopped from asserting the issue of whether his prior conviction is a “felony”

under the Guidelines. See Helfand, 105 F.3d at 536 (citing standard).

      The district court erred in imposing the sixteen-level enhancement because

the defendant’s prior conviction is not a “felony” that is a “crime of violence,”

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Under § 2L1.2(b)(1)(A)(ii), if a defendant

was previously deported or remained unlawfully in the United States after “a

conviction for a felony that is...a crime of violence” then the court increases the

base offense level by sixteen levels. Under that section, a felony is defined as “any

federal, state, or local offense punishable by imprisonment for a term exceeding

one year.” U.S.S.G. § 2L1.2, cmt. n.2 (emphasis added). Here, the defendant’s

prior state conviction is a fifth degree offense that is punishable by no more than

twelve months of imprisonment. O HIO R EV. C ODE A NN. §§ 2907.04(B)(1),

2923.02(E)(1), 2929.14(A)(5). Because the prior conviction is punishable by no


                                           5
more than twelve months of imprisonment at sentencing, the prior conviction does

not constitute a “felony” under § 2L1.2(b)(1)(A). See United States v. Ballesteros-

Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003) (holding that the maximum penalty for

the conviction was one year of jail and that it was not a felony under U.S.S.G. §

2L1.2); United States v. Robles-Rodriguez, 281 F.3d 900, 902-06 (9th Cir. 2002)

(holding that the conviction was not punishable for more than one year and was not

a felony under U.S.S.G. § 2L1.2); United States v. Corona-Sanchez, 291 F.3d

1201, 1213 (9th Cir. 2002) (en banc) (holding that maximum sentence for theft

offense was imprisonment for six months and was not a felony). Thus, because the

district court erred in imposing a sixteen-level enhancement to defendant’s base

offense level, we vacate the defendant’s sentence and remand to the district court

for resentencing.

      No petition for rehearing will be entertained and the mandate shall issue

forthwith. See Fed. R. App. P. 2.

      VACATED and REMANDED.




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