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A sentencing court “may consider acceptance of responsibility separately in imposing a sentence, even if the court determined that the defendant did not qualify for a formal adjustment on those grounds” under the Sentencing Guidelines.

Ramiro Ramos-Medina was convicted of first-degree residential burglary under California Penal Code § 459, which qualified as a “crime of violence” under 8 U.S.C. § 16(b) and an “aggravated felony” under the Immigration and Nationality Act (“INA”). Ramos was removed to Mexico and five days later was apprehended for and admitted to illegally crossing the border. Ramos moved to dismiss the indictment and argued that his conviction of burglary did not qualify as an “aggravated felony,” and that it was improper to remove him without opportunity for discretionary relief. The district court disagreed and denied Ramos’s motion, holding that Ramos’s conviction qualified as an “aggravated felony” based on the Sentencing Guidelines range, because Ramos’s conviction was a “crime of violence.” The district court shortened Ramos’s sentence form 92-115 months to 42 months, because Ramos accepted responsibility by admitting to having been deported. To determine whether a crime is a “crime of violence” under § 459, the proper inquiry is “whether the conduct covered by the crime presents the requisite risk of injury ‘in the ordinary case.’” The Ninth Circuit found that because the crime involved “a substantial risk of physical force,” it qualified as a “crime of violence.” The Court also affirmed the “crime of violence” sentence enhancement because Ramos was convicted of all the elements of generic burglary, which made the crime a “crime of violence” under the modified categorical approach. Under this approach, not every § 459 conviction is a “crime of violence,” so it “permit[s] the sentencing court to go beyond the mere fact of conviction” and to consider “only facts on which the defendant’s conviction ‘necessarily rested.’” AFFIRMED.