                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 21 2011

                                                                         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. 07-10524

               Plaintiff - Appellee,             D.C. No. CR-06-01449-CKJ

  v.
                                                 MEMORANDUM *
PEDRO ROSALES-MARTINEZ, a.k.a.
Pete M. Rosales,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Pedro Rosales-Martinez appeals from the 65-month sentence imposed

following his bench-trial conviction for attempted illegal reentry after deportation,

in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
we vacate and remand for resentencing.

      Rosales-Martinez contends that the district court committed plain error when

it imposed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based

on his conviction for attempted second-degree burglary in violation of Arizona

Revised Statutes § 13-1507.

      Rosales-Martinez’s conviction is not categorically a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Bonat, 106 F.3d 1472, 1475

(9th Cir. 1997) (“Arizona courts have expanded the [burglary] statute beyond

generic burglary because they have interpreted the statute to allow a conviction

even if the intent to commit the crime was formed after entering the structure

and/or the entry was privileged.”).

      The district court plainly erred in applying the 16-level enhancement,

because the conviction records relating to Rosales-Martinez’s burglary conviction

are insufficient under the modified categorical approach to demonstrate that his

conviction necessarily rested on facts satisfying the elements of generic burglary.

See United States v. Aguila-Montes de Oca, 655 F.3d 915, 945-46 (9th Cir. 2011)

(en banc). At sentencing, the government introduced the complaint, the

information, verdict forms and sentencing papers. These documents, as well as the

jury instructions, simply repeat the elements of Arizona burglary and do not

establish that Rosales-Martinez formed the intent to commit the burglary before


                                          2                                      07-10524
entering the structure, or that his entry was unlawful or unprivileged, or that he

burgled an immovable structure. See United States v. Terrell, 593 F.3d 1084, 1092

(9th Cir. 2010); see also Aguila-Montes de Oca, 655 F.3d at 946 (“[C]onviction

records for [Arizona] burglary cannot demonstrate that a defendant was convicted

of generic burglary unless they do something more than simply repeat the elements

of [Arizona] burglary.”).

       Erroneous application of a sentencing enhancement affects the defendant’s

substantial rights and “affect[s] both the fairness and integrity of our judicial

system.” United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir. 2001).

Accordingly, we vacate the sentence and remand for resentencing consistent with

this disposition. See Aguila-Montes de Oca, 655 F.3d at 946-47.

       We grant Rosales-Martinez’s requests for judicial notice, and deny as moot

his motion to lift the stay.

       VACATED and REMANDED.




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