                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 04 2011

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


                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,
                                                No. 10-30343
               Plaintiff-Appellee,
                                                Dist. Ct. No. 10-CR-00041-JLQ
             v.
                                                MEMORANDUM *
 FRANCISCO OSUNA ARMENTA,

               Defendant-Appellant.




                    Appeal from the United States District Court
                        for the Eastern District of Washington
                  Justin L. Quackenbush, District Judge, Presiding

                       Argued and Submitted August 1, 2011
                               Seattle, Washington

Before:      NOONAN and M. SMITH, Circuit Judges, and FOGEL, District
             Judge**

      Defendant-Appellant Francisco Osuna Armenta (“Armenta”) appeals the

sentence imposed by a district court following his plea of guilty to one count of

illegal reentry of an alien in violation of 8 U.S.C. § 1326. He challenges the



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
court’s imposition of a sixteen level enhancement based upon its characterization

of his prior state law conviction of unlawful imprisonment under Revised Code of

Washington (“RCW”) § 9A.40.040 as a “crime of violence” within the meaning of

United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii). “We

review de novo whether a prior conviction constitutes a crime of violence under

U.S.S.G. § 2L1.2.” United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th

Cir. 2010).

      Armenta argues that the district court erred in applying the modified

categorical approach because RCW § 9A.40.040 lacks an element of the

Guidelines crime of violence. He acknowledges that this argument is foreclosed

by our recent decision in United States v. Aguila-Montes De Oca, --- F.3d ----, No.

05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), in which we held that the

modified categorical approach applies in both “broad element” and “missing

element” cases, but he contends alternatively that Aguila-Montes De Oca was

decided incorrectly or that it is not inconsistent with his position on appeal. We

disagree.

      “Under the modified categorical approach, we determine, in light of the facts

in the judicially noticeable documents, (1) what facts the conviction necessarily

rested on (that is, what facts the trier of fact was actually required to find); and (2)



                                            2
whether these facts satisfy the elements of the generic offense.” Aguila-Montes

De Oca, 2011 WL 3506442, at *21. “An offense qualifies as a ‘crime of violence’

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it either (1) has as an element the use,

attempted use, or threatened use of physical force against the person of another . . .

or (2) constitutes one of the crimes listed in the enumerated offense prong of the

definition.” Espinoza-Morales, 621 F.3d at 1145 (internal quotation marks and

citation omitted). RCW § 9A.40.040 does not constitute one of the enumerated

crimes; thus it qualifies as a crime of violence only if it “has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

See id. (internal quotation marks and citation omitted).

      Pursuant to RCW § 9A.40.040, a person is guilty of unlawful imprisonment

if he or she “knowingly restrains another person.” RCW § 9A.40.040(1). Under

Washington law, “restraint” may be accomplished by “physical force, intimidation,

or deception.” RCW § 9A.40.010(1)(a).1 In connection with his plea of guilty to

the unlawful imprisonment charge, Armenta agreed expressly that the sentencing

court could review the police reports and statement of probable cause to establish

the factual basis for his plea; accordingly, we may consider those documents in

applying the modified categorical approach. See United States v. Almazan-

      1
       Restraint may be accomplished by additional means, not relevant here,
when the victim is a minor or incompetent. RCW § 9A.40.010(1)(b).

                                           3
Becerra, 537 F.3d 1094, 1100 (9th Cir. 2008) (district court’s consideration of

police reports contained in the state court file was proper because defendant had

stipulated that the reports formed the factual basis of his guilty plea) ; United

States v. Espinoza-Cano, 456 F.3d 1126, 1131-32 (9th Cir. 2006) (same). The

police reports disclose that Armenta’s wife left him after a history of domestic

violence; that Armenta accosted her in a parking lot, threatened her, grabbed her

sleeve, and pulled her into a van; and that while they were inside the van Armenta

continued threatening to beat her and telling her that she had to stay with him.

      Armenta argues that it is unclear from this record whether his conviction of

unlawful imprisonment rested upon his use of physical force in pulling the victim

into the van or upon his verbal intimidation of her. His argument assumes that if

the conviction rested solely upon intimidation, it would not satisfy the Guideline

elements of a crime of violence. This assumption is unwarranted, given that an

offense qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it

has as an element “the use, attempted use, or threatened use of physical force

against the person of another.” See Espinoza-Morales, 621 F.3d at 1145 (emphasis

added). The record establishes plainly that Armenta intimidated his estranged wife

by threatening to beat her. Thus even if his actual use of physical force were

ignored, his threatened use of physical force would be sufficient to qualify the



                                           4
conviction as involving a crime of violence. Moreover, the government argues

persuasively that absent Armenta’s initial use of force to pull her into the van, the

victim would not have been imprisoned at all. We agree that under these

circumstances Armenta’s conviction necessarily rested on facts satisfying the

element of physical force.

      AFFIRMED.




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