                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 03 2012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. 10-50543

              Plaintiff - Appellee,              D.C. No. 3:10-CR-0917-001-JM

  v.                                             MEMORANDUM *

RUBEN ANTONIO VILLATORO-
MEDRANO,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                     Argued and Submitted November 9, 2011
                              Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

       Ruben Villatoro-Medrano appeals the sentence imposed by the district court

following his conviction under 8 U.S.C. § 1326. He argues that the court below


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
erred in applying a 16-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2

because it wrongly characterized his 2004 attempted robbery conviction in the

District of Columbia (D.C.) as a “crime of violence.” Reviewing the district

court’s application of the Sentencing Guidelines de novo, United States v. Jennen,

596 F.3d 594, 600 (9th Cir. 2010), we agree.

      First, as interpreted by D.C. courts, 22 D.C. Code § 2801 criminalizes non-

violent conduct beyond generic robbery–namely, stealthy seizure or snatching.

See, e.g., Leak v. United States, 757 A.2d 739, 742 (D.C. App. 2000). Thus,

Petitioner’s prior conviction under that statute does not categorically qualify as a

“crime of violence” for purposes of the sentencing enhancement. See Taylor v.

United States, 495 U.S. 575, 598 (1990); United States v. Laurico-Yeno, 590 F.3d

818, 821 (9th Cir. 2010) (requiring the sentencing court to focus on “the least

egregious end of [the statute’s] range of conduct”); see also United States v.

Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (defining “generic” robbery).

      Second, those portions of Petitioner’s criminal record which are judicially

noticeable under a “modified-categorical” analysis do not indicate that Petitioner’s

guilty plea in 2004 “necessarily admitted” the elements of generic robbery. See

Shepard v. United States, 544 U.S. 13, 26 (2005). In this case, our inquiry is

limited to the criminal information to which Petitioner pled guilty and the


                                           2
judgment of the D.C. Superior Court. See id. at 16 (“[A] later court determining

the character of an admitted [crime] is generally limited to examining the statutory

definition, charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the defendant

assented.”); see also United States v. Tucker, 641 F.3d 1110, 1124 (9th Cir. 2011).

An examination of these documents does not exclude the possibility that Petitioner

was convicted of mere stealthy seizure or snatching. Cf. Jackson v. United States,

359 F.2d 260, 262 (D.C. Cir. 1966).

      As nothing in the record establishes Petitioner’s prior conviction as a “crime

of violence,” the district court erred in applying a 16-level sentencing enhancement

under U.S.S.G. § 2L1.2. Accordingly, Petitioner’s sentence is hereby




      VACATED AND REMANDED.




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