�����Ƶ

Courts may not simply rely on a Presentence Investigation Report in determining the sentencing level under U.S.S.G. § 2L1.2 for an individual with a prior conviction. Such reliance results in clear and obvious error.

Urbano Castillo-Marin, a Mexican national, was arrested for driving while intoxicated. He was later arrested by ICE agents and pled guilty to willfully being unlawfully in this country after being deported. A Presentence Investigation Report (PSR) recommended “a base offense level at 8 pursuant to U.S.S.G. § 2L1.2(a), with a 3-level reduction for acceptance of responsibility and a 16-level enhancement for prior deportation after a felony conviction for a crime of violence under § 2L1.2(b)(1)(A).” Castillo-Marin’s prior conviction was for Second Degree Attempted Assault under New York Penal Law § 120.10. These determinations resulted in a sentence range of 46-57 months imprisonment. The Ninth Circuit noted that under U.S.S.G. § 2L1.2(b)(1)(A), a violent crime must meet either an element prong or enumerated prong. To satisfy the element prong, there must be an intentional, attempted, or threatened use of force; neither recklessness nor negligence satisfies the first prong. The NY statute did not require a mens rea greater than recklessness or negligence. The government argued that the NY certificate of disposition showed Castillo-Marin was convicted of § 120.10(1) specifically, which is a violent crime. However, the Court adopted the Second Circuit’s approach that, without further evidence, a certificate is admissible but rebuttable and, therefore, not sufficient. The Court also noted that the closest enumerated offense to Castillo-Marin’s conviction within U.S.S.G. § 2L1.2 was aggravated assault. However, the prior conviction did not meet that prong either for the same reason it failed the element prong. Due to the lower court’s erroneous reliance on the PSR, and the affect that reliance had on Castillo-Marin’s right to fair judicial proceedings, the Ninth Circuit vacated the sentence and remanded the case, so the government could attempt to accurately demonstrate under which subsection of N.Y. Penal Law § 120.10 Castillo-Marin was convicted. VACATED and REMANDED.