                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         NOV 07 2014

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS



UNITED STATES OF AMERICA,                        No. 13-50145

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00898-SJO-1

  v.
                                                 MEMORANDUM*
MIGUEL QUEVEDO-CORDERO, aka
Juan Robles Cordero, aka Jose Ochoa
Garcia, aka Miguel Quevedo,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                      Argued and Submitted October 8, 2014
                              Pasadena, California

Before: EBEL,** KLEINFELD, and GRABER, Circuit Judges.

       Defendant Miguel Quevedo-Cordero appeals his 60-month sentence

following a guilty plea to one count of being a deported alien found in the United



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable David M. Ebel, Senior Circuit Judge for the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
States after removal, in violation of 8 U.S.C. § 1326. For the reasons that follow,

we vacate the sentence and remand for resentencing on an open record.

      1. California Health and Safety Code section 11351 is "divisible" within the

meaning of Descamps v. United States, 133 S. Ct. 2276 (2013). United States v.

De La Torre-Jimenez, No. 13-50438 (9th Cir. Nov. 7, 2014). Accordingly, the

modified categorical approach applies.

      2. The district court plainly erred by failing to conduct an independent

modified categorical approach, as described in United States v. Castillo-Marin, 684

F.3d 914 (9th Cir. 2012). What we wrote in that case applies equally here: "We

can understand the frustration of district judges who sentence a defendant on a

record to which no objection was made only to have to later revisit the matter

because the government failed to do its job." Id. at 921 (internal quotation marks

omitted). But the modified categorical approach requires that courts look only to

the documents approved in Shepard v. United States, 544 U.S. 13 (2005), S-Yong

v. Holder, 600 F.3d 1028, 1035–36 (9th Cir. 2010), and it was plain error for the

court to look beyond those documents. Castillo-Marin, 684 F.3d at 921. We are

unpersuaded that our decision in Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir.

2011), dictates a different result. Accordingly, we vacate the sentence and remand

for resentencing on an open record.


                                          2
      3. The district court did not impermissibly burden Defendant’s

constitutional rights. See, e.g., United States v. Carter, 804 F.2d 508, 513 (9th Cir.

1986) ("When a defendant voluntarily chooses to reject or withdraw from a plea

bargain, he retains no right to the rejected sentence.").

      4. Because we remand for resentencing, we need not, and do not, reach

Defendant’s argument that the district court committed other procedural errors at

sentencing.

      Sentence VACATED; case REMANDED for resentencing on an open

record.




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