                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 02 2012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. 08-10503

              Plaintiff - Appellee,              D.C. No. 4:08-CR-0525-DCB

  v.
                                                 MEMORANDUM *
SANTIAGO AGUILAR-BALBUENA,

              Defendant - Appellant.



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

                        Argued and Submitted July 16, 2012
                            San Francisco, California

Before: FERNANDEZ and PAEZ, Circuit Judges, and SETTLE, District Judge.**

       Santiago Aguilar-Balbuena (“Aguilar-Balbuena”) appeals from the 30-

month sentence imposed following his guilty-plea conviction to illegal re-entry




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291, and we vacate the sentence and remand for re-sentencing on an

open record.

      “We have stated that ‘[a] defendant’s waiver of his appellate rights is

enforceable if (1) the language of the waiver encompasses his right to appeal on the

grounds raised, and (2) the waiver is knowingly and voluntarily made.’” United

States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009) (alteration in original)

(quoting United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005), overruled

on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.

2007) (en banc)). Here, Aguilar-Balbuena’s plea agreement contained six separate

sentencing ranges that could be applied to him depending on his criminal history.

Specifically, the first sentencing range states that “[u]nder the sentencing

guidelines, as set forth in U.S.S.G. § 2L1.2(a) and (b)(1)(A), if the defendant has a

prior felony conviction for . . . a crime of violence . . . then the government and

defendant agree the defendant’s sentence shall be as follows: . . . 30 to 37 months

of imprisonment if defendant’s Criminal History Category is II . . . .” We conclude

that Aguilar-Balbuena did not knowingly waive his right to appeal the district

court’s determination of whether his prior burglary conviction qualified as a “crime

of violence” under U.S.S.G.


                                           2
§ 2L1.2(b)(1)(A)(ii). The terms of Aguilar-Balbuena’s plea agreement are unclear

in explaining what is meant by waiving his right to appeal the sentence “providing

the sentence is consistent with this agreement.” The Magistrate Judge, during the

plea colloquy, did not ask Aguilar-Balbuena if he understood that he was waiving

his right to appeal the district court’s sentence provided the sentence was

“consistent with [the plea] agreement”, nor did he pursue any clarification on the

record as to the meaning of that phrase. See United States v. Baramdyka, 95 F.3d

840, 843 (9th Cir. 1996) (“This court looks to the circumstances surrounding the

signing and entry of the plea agreement to determine whether the defendant agreed

to its terms knowingly and voluntarily.”).

      Further, we conclude that Aguilar-Balbuena’s prior burglary conviction in

Illinois is not categorically a “crime of violence” under U.S.S.G.                     §

2L1.2(b)(1)(A)(ii). At the time of Aguilar-Balbuena’s conviction, Illinois defined

the term “dwelling” contained in the statute of conviction as “a house, apartment,

mobile home, trailer, or other living quarters in which at the time of the alleged

offense the owners or occupants actually reside or in their absence intend within a

reasonable period of time to reside.” Ill. Rev. Stat. 1987, ch. 38, par. 2 -- 6 (b).

Because this definition of a “dwelling” is broader than the generic federal

definition, as explained in United States v. Grisel, 488 F.3d 844, 849-50 (9th Cir.


                                             3
2007) (en banc), a burglary conviction under this statutory scheme is not

categorically a crime of violence.

      VACATED AND REMANDED.




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